State v. Freeman, 14752

• Court: Court of Appeals of Idaho
• Writing for the Court: SWANSTROM; WALTERS, C.J., and BURNETT
• Citation: 714 P.2d 86,110 Idaho 117
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Robert D. FREEMAN, Defendant-Appellant.
• Docket Number: No. 14752,14752
• Decision Date: 30 January 1986

Page 86

714 P.2d 86 110 Idaho 117 STATE of Idaho, Plaintiff-Respondent,
v.
Robert D. FREEMAN, Defendant-Appellant. No. 14752. Court of Appeals of Idaho. Jan. 30, 1986.

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[110 Idaho 119] Mark A. Jackson, Coeur d'Alene, and Malcolm S. Dymkoski, Post Falls, (Kootenai County Public Defender's Office) for defendant-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Myrna A.I. Stahman, Deputy Atty. Gen., for plaintiff-respondent.

SWANSTROM, Judge.

Robert Freeman pled guilty to two counts of lewd and lascivious conduct with children under sixteen years of age. The district court imposed consecutive sentences in the custody of the Board of Correction for an indeterminate term not to exceed twenty years on one count, and an indeterminate term not to exceed ten years on the other count. Freeman presents three issues on appeal: (1) whether the district court erred in denying his motion to withdraw the guilty pleas; (2) whether he was denied the effective assistance of counsel; and (3) whether the sentence imposed was excessive. We affirm.

Freeman initially was charged with seven counts of lewd and lascivious conduct committed upon three females under the age of sixteen. On Monday, the day the trial was to commence, Freeman pled guilty to two counts and the others were dismissed. The pleas were accepted by the court, the jury panel was excused, and a presentence investigation was ordered. The resulting report recommended long-term incarceration.

The sentencing hearing began by Freeman moving to withdraw his guilty pleas. He claimed to have no memory of entering the pleas and little memory of the weekend proceeding their entry. His attorney explained this turn of events as follows:

Your Honor, one of the reasons that I had Dr. Farley accompany me on Saturday [before the guilty pleas were entered], which Mr. Freeman mentioned, was in order to judge for myself and then pose that question to Dr. Farley. In my own mind, at the time the trial was set and the plea was entered, I would not have allowed a plea to be entered if I thought it was factually not supported

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[110 Idaho 120] and that he didn't know--Mr. Freeman didn't know--what he was doing; and that's the reason Mr. Farley was gracious enough to meet with Mr. Freeman on Saturday. And he met with him, and I met with Dr. Farley afterwards; and that was the Saturday preceding the court appearance on Monday.

However, Mr. Freeman, on his own desire, has told me that he wishes to inform this Court of his intention to withdraw his plea; and I state that 'cause he's indicated that that is his intention. I discussed with him some of the problems in so doing it, and also discussed with him the problem of the basis for that.

....

He's instructed me to present that motion to the Court, but I don't have any basis, frankly, myself, of saying he did not know what he was doing.

The court requested that Dr. Farley, who was present for the sentencing hearing, testify regarding Freeman's state of mind. Dr. Farley, a clinical psychologist, had visited Freeman on Saturday, two days before the trial was to begin. He stated that Freeman was able to understand his actions, and expressed surprise that Freeman could not remember entering the pleas. Freeman's attorney made no attempt to keep Dr. Farley's testimony out of the hearing. The court denied the motion to withdraw the pleas and proceeded directly into the sentencing hearing.

Freeman first contends that his guilty pleas were not knowingly, intelligently and voluntarily made. He asserts that he did not know what he was doing when he entered the pleas; that he was confused and pressured into pleading guilty by the district court, which had a jury waiting; and that he was pressured by his own attorney who had not subpoenaed certain witnesses he desired to call at trial.

To be valid, a guilty plea must be made voluntarily, knowingly and intelligently. State v. Colyer, 98 Idaho 32, 557 P.2d 626 (1976). The record, and reasonable inferences drawn therefrom, must show that the plea was voluntary, that the defendant understood the consequences of a guilty plea and that he knowingly and intelligently waived his constitutional rights to a jury trial, to confront his accusers, and to refrain from self-incrimination. Id.; State v. Howell, 104 Idaho 393, 659 P.2d 147 (Ct.App.1983).

On the morning of trial, Freeman expressed a willingness to plead to one count of lewd and lascivious conduct. He moved to have the other counts, involving two other girls, dismissed under I.C.R. 48 "in the interests of justice." Freeman did not profess his innocence of all the other charges, rather he said he wanted one of those charges dismissed so that the girl involved would never bear feelings of guilt for his conviction and incarceration. He argued that his punishment would not be materially affected whether he pleaded to one or more counts, since the court could sentence him to life imprisonment in either event. The prosecutor resisted the motion, contending that the defendant was trying to extend plea negotiations that were already closed and to involve the court in those negotiations. The court agreed, denied the motion and stated that the scheduled trial would proceed. Freeman then stated he did not have all the witnesses he needed for trial. The court noted that Freeman had been given plenty of time to subpoena witnesses. Neither Freeman nor his attorney requested a continuance to procure the witnesses. Freeman then indicated he would plead to two counts. A recess was taken so Freeman and his counsel could confer. Following the recess, the court questioned Freeman further and accepted guilty pleas to the two counts involved in this appeal. Freeman contends now that being forced to trial without his witnesses constituted judicial coercion for him to pled guilty. We do not agree.

There is no showing in the record of the sentencing hearing that the absence of any essential witnesses played a significant part in Freeman's decision to plead guilty. What is apparent is that Freeman's counsel disagreed with Freeman about the necessity and advisability of calling certain witnesses.

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[110 Idaho 121] Counsel was justifiably reluctant at that point to discuss witnesses' potential testimony and trial strategy. He did indicate that he had discussed the need for certain witnesses with Freeman and that he was prepared to go forward with the trial if the court so decided.

It is clear from the record--as the judge later found--that Freeman fully understood "the overwhelming nature of the evidence that the prosecution had to present against him." That, and a strong desire to avoid having the children endure the ordeal of trial, were the principal factors in Freeman's decision to plead guilty. After a careful examination into all of the circumstances surrounding the entry of the pleas, the court found that the pleas were freely, voluntarily and knowingly made. We hold that the court committed no error in accepting the guilty pleas.

Freeman relies on Idaho Criminal Rule 33(c) and State v. Jackson, 96 Idaho 584, 532 P.2d 926 (1975), to contend that the district court abused its discretion by denying Freeman's motion to withdraw the guilty pleas. Whether to grant a motion to withdraw a guilty plea lies in the discretion of the district court and such discretion should be liberally applied. State v. Jackson, supra; State v....