State v. Howell, 14559

• Decision Date: 08 February 1983
• Docket Number: No. 14559,14559
• Citation: 659 P.2d 147,104 Idaho 393
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Robert Allen HOWELL, aka Robert Allen Thorp, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 147

659 P.2d 147

104 Idaho 393

STATE of Idaho, Plaintiff-Respondent, v. Robert Allen HOWELL, aka Robert Allen Thorp, Defendant-Appellant.

No. 14559.

Court of Appeals of Idaho.

Feb. 8, 1983.

Frederick G. Loats, Coeur d'Alene, for defendant-appellant.

David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Leslie L. Goddard, Deputy Atty. Gen., Boise, for plaintiff-respondent.

WALTERS, Chief Judge.

Robert Howell appeals from an order denying his motion to withdraw his plea of guilty to a charge of aggravated assault. He contends that the motion should have been granted because an affidavit which he filed in support of the motion put into issue his intent to commit the crime charged. We affirm the order denying the motion.

After an altercation which occurred on August 20, 1980, Howell was charged with battery and aggravated assault. He retained private counsel, pleaded not guilty, and trial was set for March 2, 1981. A month before trial, Howell's retained counsel requested permission to withdraw from the case, citing his inability to maintain contact with his client. The request was granted. Howell then asked for and was given, court-appointed counsel. Howell's new attorney sought and was granted, a continuance of the trial date, to August 10, 1981, to allow him additional time to prepare a defense.

On August 7, Howell changed his plea to guilty of the aggravated assault charge, in exchange for dismissal of the battery charge. At that time, an information--containing the alleged facts and elements of the assault offense--was read to Howell, and then paraphrased by the court in a dialogue with Howell. Howell was informed of the constitutional rights waived by pleading guilty, and was advised that the plea would be considered an admission of the facts stated in the information. When asked by the court whether he had done the acts charged, he answered, "Yes, sir." The court accepted the plea, ordered a presentence report, and scheduled a sentencing hearing for September 9.

On September 8, Howell moved for a continuance of the sentencing hearing. He requested more time to submit evidence to be considered by the court prior to sentencing, to interview witnesses for the sentencing hearing, and to discuss the presentence report with the presentence investigator. The sentencing hearing was rescheduled to October 27. One hour before the hearing was to begin, Howell filed a motion to withdraw his plea of guilty. To give the state an opportunity to prepare for and argue the motion, the court scheduled a hearing on the motion for November 10. The parties submitted the matter to the court on briefs, and on November 19, the court entered a written decision and order denying the motion. The court rescheduled sentencing for December 1. That hearing was continued three more times to allow Howell to undergo treatment for alcoholism and depression, which treatment Howell voluntarily began on November 24. The sentencing was continued a fourth time for completion of an updated presentence report. On March 2, 1982, one year from the originally scheduled trial date, the court passed judgment and imposed a sentence of two years in the custody of the Board of Correction. This appeal followed.

Howell's only contention on appeal is that the court erred in not allowing him to withdraw his plea of guilty. Howell cites State v. Jackson, 96 Idaho 584, 532 P.2d 926 (1975), where our Supreme Court held that a defendant should be allowed to withdraw a plea of guilty, if the motion is made prior to sentencing and if the defendant has not, in fact, admitted committing the acts charged. We believe Jackson is inapposite. In this case Howell did admit committing the acts charged when he entered his plea of guilty. When he later moved to withdraw that plea, he denied only that he had the intent requisite to the commission of assault. By this time, Howell had reviewed the presentence report recommending confinement.

Howell also relies on State v. Huttinger, 182 Mont. 50, 595 P.2d 363 (1979), for the proposition that withdrawal of a guilty plea should be allowed where the plea is a result of a plea bargain and where granting the motion would not prejudice the state's case. Our reading of Huttinger does not support such a broadly stated proposition. In Huttinger, the Montana Supreme Court actually said that the existence of the plea bargain was a factor which militatedagainst allowing the withdrawal of the plea. The court held that withdrawal of a guilty plea should have been allowed, in that case, for reasons not presented in the instant case: (a) Huttinger had never admitted the acts charged; (b) the underlying facts of the crime were not stated at the hearing; and (c) Huttinger had never been questioned as to competency of his counsel. In addition, the Montana court said that the voluntariness of Huttinger's plea had been put into question by his admission to a hospital for psychiatric examination immediately after sentencing. Because of the great difference between the facts of Huttinger's case and the circumstances of this case, Huttinger is plainly distinguishable.

In Idaho, it is well settled that a plea of guilty must be made voluntarily, knowingly, and intelligently in order to be valid. See State v. Colyer, 98 Idaho 32, 557 P.2d 626 (1976). The trial court is not required specifically to enumerate rights which a defendant waives by pleading guilty, so long as the record, and reasonable inferences drawn therefrom, affirmatively show that the plea was voluntary, that the defendant knowingly and intelligently waived his constitutional rights to a jury trial, to confront his accusers, and to refrain from self incrimination, and that the defendant understood the consequences of pleading guilty. Id. at 35, 557 P.2d at 629. The trial court also must inform the defendant of the intent elements requisite to the charged offense. Sparrow v. State, 102 Idaho 60, 625 P.2d 414 (1981). Reading to the defendant an information, which refers to the necessary intent element included in the charged offense, satisfies this requirement--in the absence of a showing that the defendant is not conversant with the English language or that he lacks normal intelligence and education. State v. Bradley, 98 Idaho 918, 575 P.2d 1306 (1978). See also Schmidt v. State, 103 Idaho 340, 647 P.2d 796 (Ct.App.1982).

A defendant's denial of criminal intent does not invariably destroy the validity of a guilty plea which is otherwise made voluntarily, knowingly and intelligently. The trial court may accept such a guilty plea, despite the defendant's concurrent claim of innocence, or despite his denial of intent, if a strong...