State v. Gumienny

• Decision Date: 29 August 1977
• Docket Number: No. 5796,5796
• Citation: 568 P.2d 1194,58 Haw. 304
• Parties: STATE of Hawaii, Plaintiff-Appellee, v. Kenneth Anthony GUMIENNY, Defendant-Appellant.
• Court: Hawaii Supreme Court

Page 1194

568 P.2d 1194

58 Haw. 304

STATE of Hawaii, Plaintiff-Appellee, v. Kenneth Anthony GUMIENNY, Defendant-Appellant.

No. 5796.

Supreme Court of Hawai'i.

Aug. 29, 1977.

Syllabus by the Court

1. A plea of guilty is not other than intelligent and voluntary merely because the defendant has an expectation that the judge will concur in a plea bargain, if that expectation was not induced by any representation or promise made to the defendant.

2. A procedure under which acceptance of a plea of guilty may be deferred and the defendant may eventually be discharged without an adjudication of guilt does not impose an impermissible burden of exercise of the right to a trial by jury.

3. Denial of withdrawal of a guilty plea is not an abuse of discretion although the plea was accompanied by an expectation that the judge would concur in a plea bargain, absent a showing that the expectation was improperly induced.

Paul E. DiBianco, Honolulu (James A. Wagner, Honolulu, on the briefs), for defendant-appellant.

Winston K. Q. Wong, Deputy Prosecuting Atty., City and County of Honolulu, Honolulu, for plaintiff-appellee.

Before RICHARDSON, C. J., and KOBAYASHI, OGATA, MENOR and KIDWELL, JJ.

KIDWELL, Justice.

This appeal arises from a conviction based upon a negotiated guilty plea, and presents the question whether such a plea should be permitted to be withdrawn where, although the prosecution observes the terms of its bargain, the trial judge does not dispose of the case as contemplated by the plea bargain. We affirm the refusal of the trial judge to permit the withdrawal of the guilty plea.

Appellant originally pleaded not guilty of the offense of promoting a detrimental drug in the first degree, a Class C felony for which the maximum length of imprisonment (exclusive of extended term) is five years. The indictment charged Appellant jointly with a codefendant, and Appellant filed motions for severance, to suppress and to dismiss. Appellant subsequently changed his plea to guilty, upon an agreement by the prosecution to join in an accompanying motion for deferred acceptance of the guilty plea (DAGP). ¹ A hearing was held before the trial judge, at which the guilty plea was tendered, the motion was made by Appellant and joined in by the prosecutor, and the plea and motion were taken under advisement. Upon receipt of the presentence report, the trial judge denied the motion, accepted the guilty plea, imposed a fine of $1000 and placed Appellant on probation for five years with 30 days of confinement in jail. Appellant's motion for reconsideration or in the alternative to withdraw the guilty plea was denied, and this appeal followed.

At the plea taking, the trial judge was informed that the prosecution joined in Appellant's motion for deferred acceptance of his guilty plea, but that there was no other kind of understanding or agreement. The trial judge asked Appellant a number of questions and Appellant acknowledged that he understood that the court was not bound to grant the motion and might impose a sentence of up to five years and a fine of up to $5000. It does not appear from the record that the trial judge had any knowledge of the details of the offense at the time of the plea taking, except that Appellant stated, when asked what he had done that made him believe he was guilty of the charge, that he had carried a suitcase of marijuana into a room. The presentence report, which recommended against deferred acceptance of the guilty plea on the ground that Appellant was in need of supervision, informed the trial judge that Appellant had admitted that he had made a deal with his codefendant to sell a third party eight pounds of marijuana for $1400, and that as he was delivering the marijuana he was arrested. After receipt of the presentence report the judge denied the motion for deferred acceptance of guilty plea on the stated ground that the offense consisted of "plain 'pushing' on a big basis." ²

The points raised by Appellant on the appeal revolve around the central question of the fairness of the procedure which resulted in the acceptance of Appellant's guilty plea and the denial of the accompanying motion. Appellant argues that the DAGP program denies a defendant due process because it requires submission of a guilty plea as a prerequisite to consideration of a motion for its deferred acceptance; that Appellant's plea of guilty was not voluntary in a constitutional sense because it was made without knowledge that the trial judge was unwilling to defer acceptance of a plea of guilty of an offense involving a sale of marijuana; and that the failure of the trial judge to inform Appellant of that unwillingness so misled Appellant that due process requires that he be permitted to withdraw the plea.

Appellant's arguments rest on the central premise that it is unfair to hold him to his bargain with the prosecution when his expectation that the trial judge would concur in the prosecution's recommendation of DAGP was not fulfilled. It is no longer debatable that a defendant is entitled to relief if the prosecution defaults in the performance of its part of a plea bargain. ³ Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). However, the refusal of the trial judge to dispose of the defendant as contemplated by a plea agreement, at least where the trial judge has not been a party to the agreement, presents a question on which there is sharp division. In some of the major jurisdictions it is firmly held that the defendant receives everything he bargained for when the prosecution fulfills its bargain by dismissing counts, reducing the charge, recommending sentence or the like, and that the possibility that the trial court may not accept the recommendation of the prosecution or otherwise fulfill the defendant's expectation is a chance which he must be compelled to take in order to preserve the independence of the trial court from the plea bargaining process. People v. Selikoff, 35 N.Y.2d 227, 360 N.Y.S.2d 623, 318 N.E.2d 784 (1974); Commonwealth v. Stanton, 317 N.E.2d 487 (Mass.App.1974; cert. den. 366 Mass 852; Huffman v. State, 499 S.W.2d 565 (Mo.App.1973); Gibson v. State, 532 S.W.2d 69 (Tex.Cr.App.1975), cert. den. 429 U.S. 822, 97 S.Ct. 72, 50 L.Ed.2d 83; State v. Ramos, 85 N.M. 438, 512 P.2d 1274 (1973). Additional cases are collected in an annotation: Right to withdraw guilty plea in state criminal court when court refuses to grant concession contemplated by plea bargain, 66 A.L.R.3d 902 (1975). There is equally impressive authority for the view that where a guilty plea is induced by the defendant's reasonable expectation that the prosecution's recommendation will be accepted by the court, the plea must be permitted to be withdrawn if the court refuses its concurrence. Commonwealth v. Wilson, 234 Pa.Super. 7, 335 A.2d 777 (1975); Watson v. State, 261 Ind. 97, 300 N.E.2d 354 (1973); State v. Fisher, 223 N.W.2d 243 (Iowa 1974); Quintana v. Robinson, 31 Conn.Sup. 22, 319 A.2d 515 (1973); King v. State, 553 P.2d 529 (Okl.Cr.App.1976); State v. Nuss, 131 N.J.Super. 502, 330 A.2d 610 (1974); State v. Goodrich, 363 A.2d 425 (N.H.1976). The federal rules of criminal procedure provide, by Rule 11, that a court which rejects a plea agreement must permit the defendant to withdraw his guilty plea.

We must consider both whether the procedure followed in this case complied with constitutional requirements and whether we should reverse the trial judge's action in the exercise of our supervisory power. We look first at the constitutional question.

I

In Santobello v. New York, supra, due process was held to require that "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Clearly, a promise or agreement of the trial judge must be given the same effect. Davis v. State, 308 So.2d 27 (Fla.1975). Whether a defendant has a constitutional right to rely upon the assurance of a prosecutor that the trial judge will accept the plea bargain and dispose of the defendant in accordance with its terms is at least debatable. Cf., Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); People v. Selikoff, supra. That question is not before us. We do not have here either a promise by the trial judge or an assurance by the prosecutor that Appellant's motion for DAGP would be granted.

The record shows that the trial judge took considerable care to establish an understanding by Appellant that he could not rely upon an expectation that the judge would accede to the request of the prosecutor that DAGP be granted. The judge first informed Appellant that the court had been told that, in return for the guilty plea, the prosecution was willing to join in the motion for DAGP. With this as the background, Appellant informed the judge that he was aware that a penalty of five years imprisonment and $5000 fine might be imposed. The judge also specifically informed Appellant that the joinder by the prosecution in his motion did not bind the court to grant it, and Appellant acknowledged that he understood this. There is no suggestion that Appellant did not fully understand what was said to and by him. The only suggestion that the plea was induced by any false or unfulfilled representation or promise by the prosecution, defense counsel, the judge or any other person is in the contention of Appellant that the judge misled him by failing to make him aware that DAGP would not be granted in a case involving an attempted sale of marijuana.

Appellant contends that the judge was governed by a self-imposed "rule" which required denial of DAGP in any case involving a sale of marijuana. However, this contention is not supported by the record. The record shows only that the judge had reached the conclusion, at the time of sentencing, that the fact that the offense involved an...