State v. Cooper

• Decision Date: 15 October 1968
• Docket Number: 53128,Nos. 53118,s. 53118
• Parties: STATE of Iowa, Appellee, v. Christine COOPER and Mary Francis Gordon, Appellants.
• Court: Iowa Supreme Court

Page 728

161 N.W.2d 728

STATE of Iowa, Appellee, v. Christine COOPER and Mary Francis Gordon, Appellants.

Nos. 53118, 53128.

Supreme Court of Iowa.

Oct. 15, 1968.

Richard C. Turner, Atty. Gen., David A. Elderkin, Asst. Atty. Gen., and Clayton L. Wornson, County Atty., for appellee.

Edward M. Genson, and Richard Martin, Chicago, Ill., for appellants.

LARSON, Justice.

The defendants, Christine Cooper and Mary Francis Gordon, were convicted on their separate pleas of guilty of the crime of larceny in violation of section 709.1 of the 1966 Code of Iowa. Their cases are consolidated for our consideration.

In their appeals from final judgment appellants assign as reversible error (1) inadequate representation from court-appointed counsel, (2) the trial court's acceptance of their pleas of guilty without advising them of their right to the exclusion of any illegally-seized evidence, (3) the trial court's consideration of presentence investigation reports containing previous criminal offenses, and (4) the excessiveness of the sentences. We find no merit in these contentions.

From the record we find a county attorney's information was filed on December 20, 1967, charging defendants with larceny in Cerro Gordo County on or about December 14, 1967, of certain goods and chattels, to wit: A black silk dress and jacket, the property of Bergo's Store in Mason City, of the value of more than twenty dollars ($20.00). On December 15, 1967, the court appointed counsel to represent these defendants and, subsequent to their consultation with him, they were arraigned on December 21, 1967. Defendant Gordon, through her attorney, waived formal arraignment and requested that her plea of guilty be entered at that time. The court stated it would not then permit the entry of a plea unless it was a plea of not guilty. No plea was entered at that time and December 26th was set as the time for entering a formal plea. Defendant Cooper was arraigned on the same day, and the time for entry of her plea was also set for December 26, 1967. At their arraignment the court asked defendants whether they had been satisfied with the services of their counsel to that date. Each said 'Yes.'

On December 26, 1967, the court questioned each defendant extensively concerning the entry of a guilty plea and inquired into their understanding of the possible penalty and their right to a jury trial. The court questioned them about threats or promises that might have been made to them to induce a guilty plea. Each said none were made to them. Thereafter defendants admitted their guilt in open court and acknowledged that they understood a guilty plea must be voluntarily entered.

The court accepted the guilty pleas and ordered presentence investigations of these defendants.

On December 28, 1967, after consideration of the presentence investigations and the county attorney's recommendations, the court sentenced each defendant to a term not to exceed five (5) years in the Women's Reformatory at Rockwell City, Iowa.

I. Appellants contend that they received such inadequate representation as to be violative of their rights set forth in the fifth and sixth amendments to the United States Constitution.

Defendants' contention of inadequacy of counsel has recently been considered by us. In Parrott v. Haugh, Iowa, 158 N.W.2d 766, 771, we pointed out it is only where what was or was not done by the attorney for his client made the proceedings a farce and a mockery of justice, shocking the conscience of the court, that a charge of inadequate legal representation will prevail, citing Ashby v. Haugh, 260 Iowa 1047, 152 N.W.2d 228, 233, cert. den. January 15, 1968, 389 U.S. 1056, 88 S.Ct. 809, 19 L.Ed.2d 855; State v. Wesson, 260 Iowa 331, 149 N.W.2d 190, 195; Scalf v. Bennett, 260 Iowa 393, 147 N.W.2d 860, 864.

Of course, the burden of proof is on one making the claim to establish that his counsel was ineffective. Defendants here assert three instances to support their contention. They complain first because their counsel did not file a motion to suppress certain evidence obtained by a search and seizure. It is by no means clear from this record that such a motion would have been sustained. In any event, the likelihood that a given motion or trial tactic might have been successful and ultimately permit the defendants to escape punishment is not the test. Judge Burger stated in Edwards v. United States, 103 U.S.App.D.C. 152, 256 F.2d 707, 709:

'(T)here was much counsel might have done, appellant now tells us. Counsel might have argued the illegality of the arrest and might have moved to suppress evidence obtained by illegal search and seizure, and illegal confessions. We agree that counsel might have done these things, and perhaps, guided by hindsight, other things; but we do not agree that failure to do so was such ineffective assistance of counsel as to warrant a new trial. * * * It must be realized that this is not a case in which proof of guilt depended upon a trial. In such cases, the accused usually relies to a great extent on counsel to conduct an effective defense, because the accused does not know enough of the law to do so himself. While the accused may have to take the consequences of a poor defense, he may at least say the fault was not his own. But this is not so when he pleads guilty. Here the deed is his own; here there are not the baffling complexities which require a lawyer for illumination; if voluntarily and understandingly made, even a layman should expect a plea of guilty to be treated as an honest confession of guilt and a waiver of all defenses known and unknown.'

The record is clear that the pleas in the instant case were voluntarily and understandingly made. The careful and learned trial court made sure of that. In response to the court's inquiry as to whether Miss Cooper was ready to enter a plea on December 26th, counsel stated 'She is.' The court then advised her that the January jury would soon be called and that 'you have a right to a jury trial.' To the question, 'do you understand?' she replied 'Yes.' The court then said, 'Do you further understand that the Court will not accept any plea unless voluntarily entered?' and she answered 'I do.' To the question, 'What is your plea?' she replied 'Guilty' and said she understand she 'could get from one to five or a thousand dollar fine' or both, and that no one had made promises or threats in regard to the matter to induce a plea. Mary Francis Gordon responded similarly, and the court then accepted the guilty pleas.

We conclude that counsel's failure to move to suppress evidence did not result in making these proceedings a farce and a mockery of justice, shocking the conscience of the court, and is not sufficient to show inadequate counsel representation.

However, appellants assert that...