State v. Grosh

Decision Date15 January 1986
Docket NumberNo. 14830,14830
Citation387 N.W.2d 503
PartiesSTATE of South Dakota, Plaintiff and Appellee, v. Stephen G. GROSH, Defendant and Appellant. . Considered on Briefs
CourtSouth Dakota Supreme Court

Robert Mayer, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

George A. Bangs of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, and Catherine G. Ortner of Ortner & Ortner, Hot Springs, for defendant and appellant.

HENDERSON, Justice.

ACTION

Stephen G. Grosh (Mr. Grosh) appeals from a Judgment of Conviction entered upon a plea of guilty to a charge of distribution of cocaine. SDCL 22-42-2 and SDCL 34-20B-16. We affirm.

FACTS

In October 1983, Mr. Grosh was charged with distribution of cocaine and marijuana. At the same time, Linda D. Grosh (Linda), Mr. Grosh's wife, was also charged with distribution of cocaine. Events leading to the respective charges occurred on different dates. The Groshs retained Attorney Catherine G. Ortner and Attorney Ortner detected no conflict of interest in the dual representation. Attorney Ortner advised the Groshs of their right to separate counsel and of the circumstances which could lead to a conflict of interests.

In August 1984, through the efforts of Attorney Ortner, the charges against the Groshs were dismissed. Shortly thereafter, the State refiled identical charges against the Groshs. Preliminary hearings and arraignments were held. At an October 19, 1984, motion hearing, the trial court scheduled Mr. Grosh's trial for November 28 and 29, 1984, and Linda's trial for November 30, 1984. At this motion hearing, the trial court expressed its concern about a conflict of interests occurring if one of the Groshs took the stand and implicated the other. Acknowledging that it did not know what the defense testimony and evidence would entail, the trial court strongly advised the Groshs about potential conflicts of interests and suggested it might be necessary for one of them to obtain an attorney other than Attorney Ortner. Attorney Ortner agreed that it would be a good idea for the Groshs to speak with another attorney and get a fresh viewpoint. The trial court further stated:

I can't make either of you represent yourself individually and I can't take your lawyer away from you, nor will I. You are advised though, that you each should consider the possibility that [Attorney] Ortner's representation may create a conflict of interest especially when we're talking about going to trial, and one or both of you taking the stand.

Thereafter, the Groshs waived any potential conflict of interest and Attorney Ortner proceeded to prepare for trial. This waiver was made to Attorney Ortner and was not made in the presence of the trial court. There is no written waiver within the settled record. On November 16, 1984, a telephone conference was held between the trial court, Attorney Ortner, and the State's Attorney. During this conference, the trial court again expressed its concern about potential conflict of interests whereupon, sua sponte, it appointed Attorney Todd Hauge to assist and advise Linda should a conflict arise. Attorney Hauge was to sit through the Groshs' trials and insure that Linda's interests were being protected.

After being advised of the trial court's actions, the Groshs resolved (1) to select their own additional attorney, and (2) that new counsel would represent Mr. Grosh while Attorney Ortner would continue to represent Linda. On November 19, 1984, another telephone conference between the trial court, Attorney Ortner, and the State's Attorney occurred. During this conference, the trial court ordered that any newly retained counsel was to represent Linda and not Mr. Grosh. At this time, the trial court also denied a defense request for a continuance and ordered Attorney Ortner to instruct Linda to visit Attorney Hauge.

Plea negotiations were thereafter instituted and a plea bargain was struck. Plea bargains are authorized by the State Legislature. SDCL 23A-7-8. It appears the Groshs were concerned with Mr. Grosh retaining his job with the railroad and that one of them remain free of any felony convictions so a Nebraska liquor license would not be jeopardized. The substance of the plea bargain was (1) Mr. Grosh would plead guilty to the distribution of cocaine charge; (2) the charge against Linda and the remaining charge against Mr. Grosh would be dropped; (3) the State would not object to a request for a suspended imposition of sentence, but would, in fact, concur in such a request; and (4) such a request would not be binding upon the trial court. On November 30, 1984, after the trial court discussed (a) Mr. Grosh's constitutional and statutory rights, (b) the plea agreement, (c) the Groshs' employment circumstances, and (d) that the requested suspended imposition of sentence was not binding upon the trial court and a ten-year penitentiary sentence was possible, Mr. Grosh pleaded guilty to the cocaine distribution charge in accordance with the plea agreement. A presentence report was then ordered by the trial court.

On December 21, 1984, Mr. Grosh moved to withdraw his guilty plea. This Motion to Withdraw was bottomed on the following factual assertions:

Initially when [Mr. Grosh] weighed the risks of trial on the information against the ramifications of a ... plea, the balance weighed in favor of a decision to enter a ... plea to [the cocaine distribution charge] on condition that the state dismiss the charge against defendant's wife Linda. As the Court knows, the primary considerations influencing the initial decision were the ability of the two defendants to obtain a Nebraska liquor license for their restaurant and lounge in Bridgeport, Nebraska, and to hold on to defendant's job as a conductor for Burlington Northern Railroad, for the purpose of subsidizing the private business enterprise until it becomes more established.

However, from recent information it appears that defendant will lose his conductor job if a judgment of conviction is entered.

A hearing via telephone was held on the Motion to Withdraw on December 27, 1984. After hearing the positions of the respective parties, the trial court denied the motion. The reasons asserted for the denial were: (1) prejudice to the court; (2) inability to adequately and speedily try Mr. Grosh; (3) prior acceptance of a free and voluntary guilty plea; (4) absence of a substantial reason for withdrawal; (5) delay and manipulation of the court system; (6) entrapment defense not significantly meritorious; (7) completion of extensive presentence investigation; and (8) sufficient factual basis for the plea.

An Amended Motion to Withdraw Plea was presented to the trial court on December 28, the day of Mr. Grosh's sentencing. The substance of this pleading was that Mr. Grosh was "stampeded" into the plea agreement by the conflict of interests/appointment of additional counsel events which transpired just prior to the date set for trial. This pleading was also based on an allegation that the presentence report contained an attachment filled with inaccurate allegations of criminal activity on the part of Mr. Grosh. This Amended Motion was denied. Thereupon, the trial court proceeded to sentence Mr. Grosh.

An attachment to the presentence report by Fall River County Sheriff Leo Bray alleged numerous instances of illegal activity by Mr. Grosh. Further, the attachment recommended that Mr. Grosh be incarcerated in the penitentiary and pay a fine. These allegations were based on an unnamed confidential informer. Attorney Ortner objected to the inclusion of this material and suggested cross-examination of the informant. The trial court sentenced Mr. Grosh to five years' imprisonment. It then acknowledged (1) for the record and (2) for purposes of appeal that it had considered the recommendations and observations of Sheriff Bray and had partially based its judgment thereon.

Three issues are presented, and we address them seriatim.

DECISION
I.

DID THE TRIAL COURT ABUSE ITS DISCRETION BY DENYING MR. GROSH'S PRESENTENCE MOTIONS TO WITHDRAW HIS GUILTY PLEA? WE HOLD IT DID NOT.

The withdrawal of a guilty plea before the imposition of sentence is within the sound discretion of the trial court. SDCL 23A-27-11. There is no absolute right to withdraw a guilty plea, State v Losieau, 266 N.W.2d 259, 262 (S.D.1978), but the trial court's "discretion in the matter should be exercised liberally in favor of withdrawal, unless it appears that the State has detrimentally relied upon the plea and the prosecution of the defendant has been thereby prejudiced." State v. Lohnes, 344 N.W.2d 686, 687 (S.D.1984). When deciding whether to allow a criminal defendant to withdraw his plea, the trial court must look at the reasons why the plea is sought to be withdrawn, Losieau, 266 N.W.2d at 262, and if the request to withdraw is obviously frivolous, the trial court need not grant it. People v. Hale, 99 Mich.App. 177, 180, 297 N.W.2d 609, 610 (1980).

Mr. Grosh contends the trial court abused its discretion in denying his motions to withdraw because there is no showing of detrimental reliance/prejudice on the part of the State. Even conceding, however, the absence of detrimental reliance or prejudice, we cannot conclude that the trial court abused its discretion. The reasons why a guilty plea is sought to be withdrawn must be examined, Losieau, 266 N.W.2d at 262; the defendant must state a persuasive reason why withdrawal should be permitted, People v. Cubitt, 25 Mich.App. 643, 644, 181 N.W.2d 573, 574 (1970); and the reason must show more than the mere desire to have a trial. Dudrey v. State, 74 Wis.2d 480, 486, 247 N.W.2d 105, 108 (1976). Here, the crux of Mr. Grosh's Motion to Withdraw was that he would probably lose his job with the railroad and that he had reconsidered the risks of going to trial in light of employment considerations. Mr. Grosh, however, did not...

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