State v. Gilley, Cr. N
| Citation | 289 N.W.2d 238 |
| Decision Date | 28 February 1980 |
| Docket Number | Cr. N |
| Parties | STATE of North Dakota, Plaintiff and Appellee, v. Greg W. GILLEY, Defendant and Appellant. o. 666-B. |
| Court | United States State Supreme Court of North Dakota |
Tom P. Slorby, State's Atty., Minot, for plaintiff and appellee.
Joseph P. Stevens, Minot, for defendant and appellant.
Greg W. Gilley pled guilty to two counts of robbery and five counts of burglary, and was sentenced to ten years in the state penitentiary. Subsequently, Gilley filed an application in the district court for post-conviction relief under the Uniform Post-Conviction Procedure Act, Ch. 29-32, NDCC, alleging that his constitutional rights had been violated. A post-conviction hearing was held, after which relief was denied. Gilley appeals this decision of the district court. We affirm.
Peace officers, in investigating several burglaries in the Minot area, concluded that Gilley was implicated in some of them. Pursuant to a search warrant, the residence where Gilley rented a room was searched. Several items of the stolen property were recovered. An all-points bulletin was then issued for Gilley and he was arrested in the early morning hours on May 7, 1977, at a roadblock near Kenmare, and charged with burglary. He was taken first to the Kenmare Police Department and then transported to the Ward County Jail in Minot, where he remained until he posted bail approximately one week later.
On June 12, 1977, Officer Johnson of the Minot Police Department observed a vehicle which fit the description of one which had been used in a recent armed robbery. The car was stopped, the officers conducted a pat-down search of the four occupants and discovered knives on two of them. A search of the vehicle produced a sawed-off shotgun and a .357 revolver. One of the occupants of the car who was arrested for armed robbery and taken to the Minot Police Department was Greg W. Gilley.
During this confinement, and apparently during his initial confinement as well, Gilley was a discipline problem and was involved in several altercations which resulted in him being maced and placed in an isolation cell to be subdued.
While appearing at a scheduled arraignment on the two robbery charges on June 23, 1977, Gilley requested a court-appointed counsel. The arraignment was continued and counsel was appointed. At counsel's request, Gilley was given a mental competency evaluation at the State Hospital. Gilley was represented by counsel on both the robbery and burglary charges at all subsequent proceedings.
On July 28, 1977, with the advice of counsel, Gilley pled guilty to two counts of robbery and five counts of burglary. On August 3, 1977, Gilley was sentenced to a term of ten years in the State Penitentiary for each of the robberies, and five years for each of the burglaries, with the sentences to be served concurrently.
Gilley, in his petition for post-conviction relief, has raised numerous grounds in contending his constitutional rights were violated. His contentions are (1) that he was not advised of the charges against him before he gave statements concerning the robberies; (2) that the search made of the car in which he was a passenger was not legal; (3) that he requested an attorney before giving a statement after the burglaries and was not provided one; (4) that he was denied effective assistance of counsel; (5) that he was not fully informed as to the consequences of his plea; (6) that the circumstances of his confinement broke down his will; and (7) that the effect of all of the above was to make his plea of guilty involuntary and coerced.
The Uniform Post-Conviction Procedure Act, § 29-32-01, NDCC, provides in relevant part:
"1. Any person who has been convicted of, or sentenced for, a crime and who claims:
f. That the conviction or sentence is otherwise subject to collateral attack upon any ground of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding, or remedy;
may institute, without paying a filing fee, a proceeding under this chapter to secure relief."
In the instant case Gilley alleges numerous violations of his constitutional rights. However, the general rule is that a voluntary plea of guilty waives all nonjurisdictional defects alleged to have occurred prior to the guilty plea. State v. Barlow, 193 N.W.2d 455 (N.D.1971). The primary question then is whether or not Gilley's plea was voluntarily and intelligently made under the standards prescribed by Rule 11, NDRCrimP. As this court recently said in State v. Gustafson, 278 N.W.2d 358, 362 (N.D.1979), the voluntariness of a plea of guilty involves a constitutional question that is appropriately reviewable under the Uniform Post-Conviction Procedure Act.
Rule 11, NDRCrimP, governs pleas in criminal cases. Under subdivision (b), the court must address the defendant personally and advise him of the nature of the charge, the mandatory minimum and maximum punishment available, his right to plead not guilty, his right to counsel, and that, if he pleads guilty, he waives the right to a trial and the right to confront witnesses against him. The record discloses that the trial judge, before accepting the guilty pleas, carefully advised Gilley of all of the above matters.
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Sampson v. State, 930056
...there is a contradiction between the record and the unsupported assertions of the defendant, we must accept the record. State v. Gilley, 289 N.W.2d 238, 241 (N.D.1980). Sampson's conclusory allegation that Waldo's reduced sentence for the felonies "would indicate that these charges were use......
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Abdi v. State, 990239.
...assertions, a post-conviction court may accept the record. State v. Parisien, 469 N.W.2d 563, 566 (N.D. 1991); State v. Gilley, 289 N.W.2d 238, 241 (N.D.1980). [¶ 9] Abdi argues withdrawal of his guilty plea is necessary to correct a manifest injustice because he did not knowingly and intel......
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State v. Hagemann, Cr. N
...of such plea; and that he was confused as to why he was not allowed to have a trial and present evidence. In State v. Gilley, 289 N.W.2d 238, 241 (N.D.1980), we "The burden of establishing a basis for post-conviction relief rests upon the petitioning defendant. State v. Iverson, 225 N.W.2d ......
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State v. Parisien
...a basis for post-conviction relief rests upon the defendant. E.g. State v. Skjonsby, 417 N.W.2d 818, 820 (N.D.1987); State v. Gilley, 289 N.W.2d 238, 241 (N.D.1980). In Gilley we said: "Whenever there is contradiction between the record and the unsupported assertion of an accused, the court......