State v. Hall, 38127

• Decision Date: 10 March 1972
• Docket Number: No. 38127,38127
• Citation: 188 Neb. 130,195 N.W.2d 201
• Parties: STATE of Nebraska, Appellee, v. Nathaniel Lawrence HALL, Appellant.
• Court: Nebraska Supreme Court

Page 201

195 N.W.2d 201

188 Neb. 130

STATE of Nebraska, Appellee, v. Nathaniel Lawrence HALL, Appellant.

No. 38127.

Supreme Court of Nebraska.

March 10, 1972.

Syllabus by the Court

1. The standard for determining the validity of a guilty plea is whether or not it represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.

2. A guilty plea motivated by the existence of a coerced confession is not subject to collateral attack where the defendant had counsel unless the counsel was incompetent.

3. When counsel has advised a defendant to plead guilty, a defendant who has heeded such advice may not subsequently attack the voluntariness of the guilty plea so long as the counsel's advice was within the range of competence demanded of attorneys in criminal cases.

4. That a guilty plea must be intelligently made is not a requirement that all advice offered by the defendant's lawyer withstand retrospective examination in a post conviction hearing.

5. Where the actual verbatim record of the proceedings on taking a plea of guilty has been lost, a reasonably accurate account of what took place established by other evidence is not a 'silent record' within the proscription of Boykin v. Alabama.

David L. Herzog, J. Patrick Green, Omaha, for appellant.

Clarence A. H. Meyer, Atty. Gen., Bernard L. Packett, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON and CLINTON, JJ.

McCOWN, Justice.

This is a post conviction proceeding in which the defendant, Nathaniel Lawrence Hall, seeks to challenge his conviction for first degree murder while in the commission of a robbery. On May 7, 1965, the defendant represented by the public defender's office, entered his plea of guilty. He was adjudged guilty by a three-judge court and sentenced to life imprisonment on June 14, 1965.

An extensive evidentiary hearing was held in this proceeding and the defendant was represented throughout by court appointed counsel. The trial judge made extensive, thorough, and detailed findings of fact and conclusions of law following the evidentiary hearing.

The defendant's first contention was that at the time he was taken before the municipal court shortly after his arrest for the purpose of having bond set, he was not given notice and warnings as to his constitutional rights. At and subsequent to the preliminary hearing, the defendant was at all times represented by counsel. It is conceded that no Nebraska statute or rule requires a defendant be advised of his constitutional rights when bond is set. In the federal courts, Rule 5 of the Federal Rules of Criminal Procedure was not amended to require it at that stage until 1966. The occurrence here arose in 1964. There is no merit to this claim.

The defendant also asserts that a statement was taken from him by the police in the absence of his counsel and that he was substantially motivated to enter his guilty plea because he had previously given a confession. He also asserts that his counsel was ineffective and incompetent because they did not test the validity and admissibility of his confession and advised him instead to plead guilty. The confession occurred shortly after Escobedo became effective and almost two years before Miranda. The defendant made no request for counsel, nor was he denied counsel and it is quite obvious that under the factual circumstances here Escobedo was not applicable. See, United States ex rel. Harvin v. Yeager, 428 F.2d 1354 (3 Cir., 1970); People v. Doverspike, 382 Mich. 1, 167 N.W.2d 285 (1969).

The trial court here specifically found that the confession given by the defendant in this case was voluntarily given and in compliance with all necessary requirements existing at the time the confession was given. Even though the confession may or may not have been admissible, the standard was and remains whether the guilty plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162.

It is quite apparent that a guilty plea motivated by the existence of a coerced confession is not subject to collateral attack where the defendant had counsel unless the counsel was incompetent. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763. As the Supreme Court stated in that case: 'His later petition for collateral relief asserting that a coerced confession induced his plea is at most a claim that the admissibility of his confession was mistakenly assessed and that since he was erroneously advised, either under the then applicable law or under the law later announced, his plea was an unintelligent and voidable act. The Constitution, however, does not render pleas of guilty so vulnerable.'

When counsel has advised a defendant...