State v. Delano, 53079

Decision Date05 September 1968
Docket NumberNo. 53079,53079
Citation161 N.W.2d 66
PartiesSTATE of Iowa, Appellee, v. Robert Everett DELANO, Appellant.
CourtIowa Supreme Court

Roger W. Sunleaf, of McNeil & Bonham, Montezuma, and Richard J. Vogel of Tomasek & Vogel, Grinnell, for appellant.

Richard C. Turner, Atty. Gen., James R. Martin, Asst. Atty. Gen., and Michael Enich, County Atty., Grinnell, for appellee.

MASON, Justice.

Defendant Robert Everett Delano, found guilty on his plea of guilty to rape contrary to section 698.1, Code, 1966, as charged by county attorney's information, was sentenced by Poweshiek district court to 30 years in the state penitentiary.

Defendant appeals from this final judgment assigning as errors relied on for reversal trial court's action in (1) receiving a presentence report, (2) examining defendant's confession or admission as a sentencing aid without determining its voluntariness and (3) imposing sentence that was excessive under the circumstances.

Defendant's fourth assignment in which he contends accused is guaranteed the right to confront all witnesses against him will be considered with his first assignment.

I. The county attorney's information was approved and filed October 27, 1967. Arraignment, defendant's plea and sentencing followed this same day. Before proceeding further with arraignment, the court, after asking defendant his name and age and being advised he was without funds to employ counsel, appointed an attorney with whom defendant had previously consulted and who had represented him at preliminary hearing.

When defendant declined opportunity afforded to consult further with his attorney the court continued with arraignment proceeding. The information was read. The court inquired if defendant had a copy, if he were correctly named therein, if he understood what had been read to him and whether he had discussed with his attorney the charge made in the information and the matter of his plea. Defendant answered each question affirmatively. The court questioned counsel whether he had advised defendant of his rights to trial and of counsel's willingness to defend him at trial if necessary. The attorney advised he had.

Asked if he knew the penalty fixed for rape was imprisonment in the state penitentiary for life or a term of years not less than five, defendant answered, 'Yes.' Questioned about being in good health defendant replied, 'Just one pulled shoulder.' At this point the court said, 'That, as I understand it from the presentencing report, was incurred in an accident years ago in a bakery or--.' Defendant answered, 'Yes', without further comment or objection by either him or his attorney.

The court again advised the defendant that if he entered a plea of not guilty he was entitled to speedy jury trial and be represented by counsel. When the court wanted to know if defendant had received any threats or promises whatsoever in connection with his plea defendant replied, 'No', and stated his plea as 'guilty.'

After short recess the court asked defendant and his attorney if either wished to be heard regarding the sentence to be imposed. The following record was made:

'Mr. Sunleaf: Yes, Your Honor. First of all, I would like to point out, as the presentence investigation has shown, that Mrs. Robert Delano is now pregnant and will be expecting a child shortly. * * * And also I would like to point out that the admission signed by the defendant several days ago admitting to this crime states how he was drunk at this time or at the time of the happening of the rape which was between 9 and 10 o'clock the Saturday evening, October 14, * * *

'* * *

'The Court: Mr. Delano, I have read your confession or statement to the authorities, and in that I note that you say you knew 'at the time I did this that it was wrong but I thought it would be a good way to get back at my wife;' is that true?

'The Defendant: Yes.

'The Court: You know of any legal cause to show at this time why sentence should not now be pronounced?

'The Defendant: No.'

II. Under his first assignment defendant maintains the court erred in receiving information concerning the social and economic background and other offenses of the accused prior to his plea of guilty. In oral argument before us counsel conceded the presentencing investigation had been made prior to defendant's plea as an accommodation to him.

Code section 247.2 as amended by chapter 219, Laws of the Sixty-second General Assembly, gives the trial court authority to have certain named agencies make investigation with respect to suspension of sentence and probation.

He further contends accused is guaranteed right to confront all witnesses against him. He argues he was given no opportunity to ascertain by cross-examination or any other means correctness of information contained in the presentence investigation report referred to in passing by the trial court; trial judge may well have relied upon misleading or inaccurate information contained in report; the report, by its very nature, must be hearsay; absence of a required showing that the information was correct is surely a denial of due process.

It is evident from the record set out supra defendant's counsel either had been permitted to examine the presentence report and defendant's confession or had been fully informed as to contents of both writings before sentencing. At no time did defendant challenge accuracy of statements in this report about his background nor was the trial judge asked to disregard any of them or to afford him a chance to refute or discredit any of them by cross-examination or otherwise. He made no request that the state be required to offer evidence in support of the statements.

When questioned about his health defendant indicated, as previously noted, he had a 'pulled shoulder.' The court then made reference to a statement in the presentence report concerning this condition. Defendant verified accuracy of the report as to circumstances surrounding this injury. Later defendant's counsel explained the absence of defendant's wife at the hearing by referring to a statement in the presentence report that she was pregnant.

As suggested in Williams v. State of Oklahoma, 358 U.S. 576, 584, 79 S.Ct. 421, 426, 3 L.Ed.2d 516, 'This alone should be a complete answer to the contention.' But that court went on to consider its opinion in Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337, and stated its holding in the New York case where a similar contention had been rejected in these words:

'(O)nce the guilt of the accused has been properly established, the sentencing judge, in determining the kind and extent of punishment to be imposed, is not restricted to evidence derived from the examination and cross-examination of witnesses in open court but may, consistently with the Due Process Clause of the Fourteenth Amendment, consider responsible unsworn or 'out-of-court' information relative to the circumstances of the crime and to the convicted person's life and characteristics.'

There is a sound practical reason for different evidentiary rules governing trial and sentencing procedures.

'In a trial before verdict the issue is whether a defendant is guilty of having engaged in certain criminal conduct of which he has been specifically accused. Rules of evidence have been fashioned for criminal trials which narrowly confine the trial contest to evidence that is strictly relevant to the particular offense charged. These rules rest in part on a necessity to prevent a time consuming and confusing trial of collateral issues. They were also designed to prevent tribunals concerned solely with the issue of guilt of a particular offense from being influenced to convict for that offense by evidence that the defendant had habitually engaged in other misconduct. A sentencing judge, however, is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant--if not essential--to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial.' Williams v. People of State of New York, 337 U.S. 241, 246--247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337, 1342.

Further answer to defendant's contention that accused is guaranteed the right to confront all witnesses against him is found in United States v. Fischer (2 Cir.) 381 F.2d 509, 511.

'* * * While the amount of sentence imposed upon a convicted defendant is, needless to say, a matter of great concern to him and there is a certain amount of persuasiveness to his argument that the criminal courts should follow a policy of revealing to him information which the probation report contains which has been gleaned from outside sources and which militates against him in the fixing of the sentence which he must serve, it does not follow that in not doing so the court deprived him of his Sixth Amendment right of confrontation, because weighty countervailing policies have led the Supreme Court to hold that the constitutional guaranty of that right has no application at the sentencing stage of a criminal prosecution. See Specht v. Patterson, 386 U.S. 605, 87 S.Ct. 1209, 18 L.Ed.2d 326 (1967); Williams v. State of Oklahoma, * * *; Williams v. People of State of New York, * * *. As stated by Mr. Justice Black in Williams v. People of State of New York, supra, those policies require that the sentencing judge be free to consider information which would be unobtainable if he were limited only to considering representations made in open court and subject to...

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