State v. Fluhr

• Court: Iowa Supreme Court
• Writing for the Court: ALLBEE; All Justices concur except LeGRAND; LeGRAND; HARRIS
• Citation: State v. Fluhr, 287 N.W.2d 857 (Iowa 1980)
• Decision Date: 23 January 1980
• Docket Number: No. 62749,62749
• Parties: STATE of Iowa, Appellee, v. Donald Eugene FLUHR, Appellant.

Page 857

287 N.W.2d 857

STATE of Iowa, Appellee, v. Donald Eugene FLUHR, Appellant.

No. 62749.

Supreme Court of Iowa.

Jan. 23, 1980.

Paul T. Shinkle of Ackerman & Shinkle, Cedar Falls, for appellant.

Thomas J. Miller, Atty. Gen., Lona J. Hansen, Asst. Atty. Gen., David Correll, Black Hawk County Atty., and Jay Nardini, Asst. Black Hawk County Atty., for appellee.

Considered en banc.

ALLBEE, Justice.

The proper procedure for acceptance of guilty pleas has in the past been the subject of much debate. See, e. g., Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976) (3-4-2 decision); State v. Reaves, 254 N.W.2d 488 (1977) (4-1-4 decision). Our legislature recently removed some of the uncertainties in this area by enacting Iowa R.Crim.P. 8(2). It is the application of this rule to a determination of the adequacy of defendant Fluhr's guilty plea to which we now turn.

The proceedings with which we are primarily concerned took place on October 2, 1978, at the Black Hawk County Courthouse. The following is a complete transcript of those brief proceedings:

THE COURT: For the record, the State on this date has filed an Amended Information reducing the charge in this case from a felony, Class C Felony, to an aggravated misdemeanor, and I've been handed by Mr. Long an executed written plea of guilty, and on the record, are you prepared to withdraw the former plea and also waive any formalities of arraignment on the Amended Information?

MR. LONG: Yes, Your Honor, we would. We would withdraw our former plea of not guilty and to the Amended Trial Information the Defendant is here today to enter a plea of guilty.

We could waive formal arraignment, waive time to plead, and state that the Defendant is charged in his true and correct name, and that he is nineteen, I believe nineteen years old.

THE COURT: Mr. Fluhr, would you stand, please?

I see from this written plea that you completed the Tenth Grade. I assume that you're able to read the English language all right, is that right?

THE DEFENDANT: Uh-huh.

THE COURT: Did you and Mr. Long go through this entire plea form?

THE DEFENDANT: Yes, sir.

THE COURT: Do you think you understood what your rights are

THE DEFENDANT: Yes, sir.

THE COURT: as far as trial goes and so on, if you plead not guilty?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Do you have any questions about anything on this form?

THE DEFENDANT: No.

THE COURT: Well, being familiar with it and knowing what your rights are and understanding that if you plead guilty, you give up those rights, I'd ask you on the record here in open court what is your plea; guilty or not guilty?

THE DEFENDANT: Guilty.

THE COURT: That is to the amended charge of Theft in the Third Degree, an aggravated misdemeanor, is that right?

THE DEFENDANT: Yeah.

THE COURT: This consisted of taking parts off of a car that belonged to a man named Thompson, ¹ is that right?

THE DEFENDANT: Yes.

THE COURT: Aside from the reduction of the charge, has there been any other plea bargaining in this case?

MR. NARDINI: No, Your Honor.

MR. LONG: Just the reduction in charge.

THE COURT: So you understand that the matter of sentencing will be up to a Judge later on after a pre-sentence investigation?

THE DEFENDANT: Yes, sir.

THE COURT: Just one or two other questions. There's been no other plea bargain or promise by the State other than what they have already done. That is, to reduce the charge. Did anyone threaten you in any way to force you into court today?

THE DEFENDANT: No, Your Honor.

THE COURT: Have you had anything by way of today either alcohol or drugs that makes it difficult to understand what we're doing?

THE DEFENDANT: No, Your Honor.

THE COURT: All right. Well, on the basis of the executed written plea and the Defendant's affirmance of that here in open court, I will accept the plea and Order a presentence investigation and could you have the Defendant report to Pre-Trial Services to set up an appointment?

MR. LONG: Certainly. Certainly. Thank you.

(Proceedings concluded.)

On November 3, 1978, defendant was given a two-year imprisonment sentence, but was placed on probation with the provision that he stay in a residential facility. Defendant subsequently filed an appeal from his conviction by plea of guilty.

I. At the outset, we note that because the alleged crime occurred on June 19, 1978, this case is governed by Iowa R.Crim.P. 23(3)(b), § 813.2, Supplement to the Code 1977 (amended by Iowa R.Crim.P. 23(3)(a), (b), § 813.2, The Code 1979). See § 801.5(1), The Code 1979. That rule permits a defendant to directly appeal his conviction based on a guilty plea, escaping the requirement of both State v. Reaves, 254 N.W.2d 488, 493 (Iowa 1977), and the amended rule that procedural challenges to guilty pleas be initially raised by a motion in arrest of judgment. State v. Kempf, 282 N.W.2d 704, 706 (Iowa 1979); State v. Gardner, 274 N.W.2d 328, 329 (Iowa 1979). See also State v. Spence, 282 N.W.2d 131, 132 (Iowa 1979).

The other procedural requirement for preservation of error set forth in Reaves, that the defendant claim to have been unaware and not advised of the claimed omission from the guilty plea proceedings, is supplanted by the detailed procedural guidelines set forth in rules 8(2)(b) and 23. See Manley v. State, 278 N.W.2d 1, 4 (Iowa 1979) (McCormick, J., concurring specially). See generally 82 C.J.S. Statutes § 292 (1953).

II. Iowa R.Crim.P. 8(2)(b) specifically requires that the trial judge personally address the defendant to some extent before his guilty plea may be accepted. The rule provides:

The court may refuse to accept a plea of guilty, and shall not accept such plea without first Addressing the defendant personally and determining that the plea is made voluntarily and intelligently and has a factual basis.

Before accepting a plea of guilty, the court Must address the defendant personally in open court and inform the defendant of, and determine that the defendant understands, the following:

(1) The nature of the charge to which the plea is offered.

(2) The mandatory minimum punishment, if any, and the maximum possible punishment provided by the statute defining the offense to which the plea is offered.

(3) That the defendant has the right to be tried by a jury, and at such trial has the right to assistance of counsel, the right to confront and cross-examine witnesses against him or her, and the right not to be compelled to incriminate himself or herself.

(4) That if the defendant pleads guilty there will not be a further trial of any kind, so that by pleading guilty the defendant waives the right to a trial. (Emphasis added.)

Some of these enumerated topics of discussion were scarcely mentioned during defendant's plea hearing. Regarding the nature of the charge, the trial judge simply asked for defendant's acknowledgement that he was pleading guilty to the charge of theft in the third degree and that "(t)his consisted of taking parts off of a car that belonged to a man named Thompson." As to defendant's constitutional trial rights and the effect of his plea as a waiver of those rights, the judge merely inquired if defendant understood from the form what his rights were "as far as trial goes and so on," and assumed aloud that he also understood the waiver. The subject of penal consequences was not broached during the colloquy, except for the judge's comment that sentencing would be determined by a judge at a later time.

However, the required topics of discussion were covered to a greater extent in the written plea form. As to the nature of the charge, the form stated that defendant had received a copy of the trial information, with minutes of testimony attached, in which he was charged with theft under section 714.1(1), Supplement to the Code 1977, and that he had discussed the information with his attorney. The form also provided blanks, where defendant filled in the elements of the crime, which, according to the form, he had learned from his attorney. Defendant wrote:

1. Did take the property of Mr. Tomlinson

2. of value over $100 and under $500

3. with the intent to deprive the rightful owner of it.

Additionally, the form said that defendant read and had his attorney explain II Iowa Uniform Jury Instructions No. 215 on intent and that his attorney had explained to him and that he understood general criminal intent and specific criminal intent.

According to the form, defendant's attorney had explained defendant's constitutional rights to him. Also, all the constitutional rights specified in rule 8(2)(b), along with explanation and additional trial rights, were set forth in the form. Specifically, it provided:

8. With a fully (Sic ) understanding of my constitutional rights I hereby specifically waive any right to self-incrimination for purposes of this plea.

9. I understand if I enter a plea of not guilty I would be entitled to:

A. A speedy and a public trial by jury;

B. A verdict of guilty would have to be unanimous;

C. That counsel would be provided at public expense if I was unable to afford counsel;

D. That if I plead not guilty I have the privilege against self-incrimination and I would not be required to testify at my trial;

E. At such trial the State would have to confront me with witnesses upon whose testimony it relied to obtain conviction and I would have a right to cross examine those witnesses;

F. That at such trial I would be presumed innocent until such time, if ever, the State established my guilt beyond a reasonable doubt with such competent evidence as the State could produce;

G. That at such trial I would be entitled to the power of the Court to compel witnesses to appear and testify in my behalf;

H. That at such trial if I did not take the witness stand no inference of guilty could be drawn from such action and the prosecutor could not comment to the jury on my not so testifying.

I. I understand that if I proceed with a plea of guilty...