State v. Johnson, 56930

• Decision Date: 16 October 1974
• Docket Number: No. 56930,56930
• Citation: 222 N.W.2d 453
• Court: Iowa Supreme Court
• Parties: STATE of Iowa, Appellee, v. David Hugh JOHNSON, Appellant.

Page 453

222 N.W.2d 453

STATE of Iowa, Appellee, v. David Hugh JOHNSON, Appellant.

No. 56930.

Supreme Court of Iowa.

Oct. 16, 1974.

Archerd & Johnson by Robert W. Brinton, Clarion, for appellant.

Richard C. Turner, Atty. Gen., Darby Maria Coriden, Asst Atty. Gen., and William A. Long, County Atty., for appellee.

Heard before MOORE, C.J., and MASON, RAWLINGS, LeGRAND and REYNOLDSON, JJ.

RAWLINGS, Justice.

Defendant, David Hugh Johnson, appeals from an ex parte substitute judgment on his previously entered guilty plea. We reverse.

October 25, 1973, an information was filed in Wright County charging Johnson had committed robbery with aggravation, The Code 1973, Section 711.2.

November 7th defendant pled guilty to the above charge.

The same day, with leave granted by trial court upon the county attorney's request, said information was amended to charge robbery without aggravation, Code § 711.3.

Defendant then withdrew his prior plea and, in relevant part, this dialogue ensued:

'THE COURT: All right. Stand up! How do you plead to this amended information? THE WITNESS: Guilty.

'THE COURT: Is that voluntary? THE WITNESS: Yes, sir.

'THE COURT: Do--THE WITNESS: Yes, it's a voluntary plea.

'THE COURT:--Do you know--you know the maximum and minimum sentence, that's been explained to you? THE WITNESS: Yes, sir.

'THE COURT: And have you been coerced or threatened? THE WITNESS: No, sir.

'THE COURT: Have you two guys made any promises to this man? Mr. BRINTON: Not on my behalf. MR. LONG: Not on my behalf, Your Honor.

'THE COURT: Even if you did, the Court wouldn't have to follow it. Do you understand that? THE WITNESS: Yes, sir.

'* * *

'THE COURT: I'll accept your plea of guilty. I'll ask you later, if you want to say anything to the Court. Right now, I'll hear from the attorneys. THE WITNESS: Okay.

'* * *

'THE COURT: David, stand up and come forward! Do you want to say anything to the court? THE WITNESS: I would just like to say, I know I have done something very serious; that I'm sorry for it, I'm really sorry. I believe, that what I've done, I should be punished.

'THE COURT: If I punish you, will you use that as a guide line for the rest of your life? THE WITNESS: Yes--

'THE COURT: Don't get in it again. I wish the law provided that I could take you home and use a whip on your back, but it doesn't. I think with some help, you can be a good man. You were charged with a crime that provided for 25 years, do you realize that? THE WITNESS: Yes, sir.

'THE COURT: * * * It's hard for me to pass this sentence; it hurts down deeper than you know, because you don't know what hurt is. For your own good, I'm going to sentence you for three years at Anamosa Reformatory at Anamosa and recommend that he be sent down to Oakdale. I'll give you credit for the time you've spent in jail. The rest of it is not going to be easy, just like it's not easy for me to pass this sentence. It's the hardest thing that I have to do as a judge. But, I got to do it. I asked for the job. With the order of the sentence, I'm going to recommend that an early parole be given to you. When you get out, don't get in trouble again? THE WITNESS: No, sir.'

November 8th trial court entered this judgment:

'IT IS ORDERED, ADJUDGED AND DECREED by the Court as follows:

'1. That the attorney, Robert Brinton, is appointed to represent the Defendant at county expense.

'IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that the Defendant is hereby sentenced to three (3) years in the State Institution at Anamosa, Iowa, with a recommendation that he be sent to the Oakdale facilities for treatment, and that it is the recommendation of this Court that the Defendant be considered for early parole. Wright County Sheriff's Department shall provide transportation at their earliest convenience.

'IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that the Defendant be given credit for the time already spent in the Wright County Jail being from the 10th day of October, 1973.

'THE IS FURTHER ORDERED that the Defendant shall pay the costs of this action and that the appeal bond is set in the sum of $1,000.00.'

November 28th, without notice to defendant and in his absence, this judgment was entered:

'IT IS ORDERED, ADJUDGED AND DECREED by the Court as follows:

'1. That the attorney, Robert Brinton, is appointed to represent the Defendant at county expense.

'IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that the Defendant is hereby sentenced not to exceed ten (10) years in the State Institution at Anamosa, Iowa, with a recommendation that he be sent to the Oakdale facilities for treatment, and that it is the recommendation of this Court that the Defendant be considered for early parole. Wright County Sheriff's Department shall provide transportation at their earliest convenience.

'IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the Court that the Defendant be given credit for the time already spent in the Wright County Jail being from the 10th day of October, 1973. 31 days.

'IT IS FURTHER ORDERED that the Defendant shall pay the costs of this action and that the appeal bond is set in the sum of $1,000.00.'

The sole issue presented is whether defendant's absence at time of the aforesaid resentencing vitiates the above quoted November 28th judgment.

I. Both defense counsel and county attorney have filed affidavits in this court, separate and apart from the record.

These instruments indicate the aforesaid dialogue was preceded by other relevant but unrecorded negotiations or proceedings. See in this regard State v. Reppert, 215 N.W.2d 302, 306--307 (Iowa 1974); State v. Sisco, 169 N.W.2d 542, 549--550 (Iowa 1969); Recommendations of the National Advisory Commission on Criminal Justice Standards and Goals, Standard 3.2 (14 Crim.L. 3001, 3003).

Among other things the above noted affidavits intimate the presiding judge indulged in plea bargaining during which defendant was advised a three year sentence would be imposed in event he entered a guilty plea. See in this regard ABA Standards Relating to Pleas of Guilty, § 3.3 and Commentary at 72--77 (Approved Draft 1968); ABA Standards Relating to the Function of the Trial Judge, § 4.1 and Commentary at 53--60 (Approved Draft 1972); Recommendations of the National Advisory Commission on Criminal Justice Standards and Goals, Standard 3.7 (14 Crim.L. 3001, 3004--3005).

In the processing of this appeal, however, no recognition is accorded said affidavits. See In re Adoption of Blanchard, 179 N.W.2d 441, 442 (Iowa 1970); State v. Houston, 261 Iowa 1369, 158 N.W.2d 158, 161 (1968); Code § 793.17; Iowa R.Civ.P. 340(a).

II. We turn now to the November 8th judgment, quoted above.

Code § 711.3 provides, in essence, a person committing robbery without aggravation shall be imprisoned for not to exceed ten years. And our indeterminate sentence statute, § 789.13, declares:

'When any person over sixteen years of age is convicted of a felony, except the crime of escape, treason, murder, or any other crime the maximum penalty for which is life imprisonment, the court imposing a sentence of confinement in the penitentiary, men's or women's reformatory shall not fix the limit or duration of the same, but the term of such imprisonment shall not exceed the maximum term provided by law for the crime of which the prisoner was convicted.'

As to that enactment, this court observed in Adams v. Barr, 154 Iowa 83, 86, 134 N.W. 564 (1912):

'(I)n imposing judgment of imprisonment, in the penitentiary in cases of the kind therein described, the court 'shall not fix the limit or duration of the same.' In other words, in such cases a judgment or sentence that the defendant 'be imprisoned in the penitentiary according to law' is all that is required, and whatever is added thereto is unauthorized and may be ignored as void or mere surplusage. No reference whatever need be or should be made to a minimum or maximum period. When he record shows the offense of which he has been convicted, and that he is adjudged to suffer imprisonment in the penitentiary, the statute controls the period or term of his restraint, and it is to this statute, and not to the mittimus, to which the warden must look to ascertain the period of time for which he may keep him in custody.'

See also Bernklau v. Bennett, 162 N.W.2d 432, 437 (Iowa 1968); State v. Kulish, 260 Iowa 138, 145, 148 N.W.2d 428 (1967).

It is thus evident trial court had no right, power or authority to do other than impose imprisonment for not to exceed the maximum term specified in § 711.3, Supra. See State v. Wiese, 201 N.W.2d 734, 737--738 (Iowa 1972). See also State v. Kulish, Supra.

Consequently the November 8th judgment was a nullity. See State v. Shilinsky, 248 Iowa 596, 603, 81 N.W.2d 444 (1957). See also State v. Wiese, 201 N.W.2d at 737; State v. Taylor, 258 Iowa 94, 96, 137 N.W.2d 688, 689 (1965); 21 Am.Jur.2d, Criminal Law, § 535; cf. State v. Hopp, 190 N.W.2d 836, 837--838 (Iowa 1971).

III. Therefore, as previously noted, the basic question posed is whether the November 28th judgment, entered without prior notice to defendant and in his absence, constitutes a valid adjudication.

Noticeably, trial court's inherent authority to resentence defendant is not and could not be effectively disputed.

In State v. Wiese, 201 N.W.2d at 736, we said '(J)urisdiction of subject matter must derive from law rather than from consent of the parties, and we are required to consider the issue even when not raised in order to avoid unwarranted exercise of judicial authority. City of Clinton v. Owners of Property, etc., 191 N.W.2d 671, 677 (Iowa 1971), and citations; Lynch v. Uhlenhopp, 248 Iowa, 68, 80, 78 N.W.2d 491, 498--499 (1956).'

Moreover, this court further stated in Wiese, supra, at 737: '(A) trial court does not exhaust its jurisdiction until a valid judgment is entered. State v. Shilinsky, 248 Iowa 596, 81 N.W.2d 444 (1957).' See also State v. Deets, 195 N.W.2d 118, 125 (Iowa 1972);...