State v. Kellison
| Decision Date | 16 June 1942 |
| Docket Number | 45839. |
| Parties | STATE v. KELLISON. |
| Court | Iowa Supreme Court |
Yeaman & Yeaman, of Sioux City, for appellant.
John M. Rankin, Atty. Gen., of Iowa, and M. E. Rawlings, Woodbury Co. Atty., of Sioux City, for appellee.
On the morning of the second day of October, 1941, the grand jury of Woodbury County returned an indictment against Kenneth O Kellison charging him with the crime of manslaughter, alleged to have been committed on the 26th day of September preceding, when the defendant was driving an automobile while intoxicated, by running down and killing one Nels Strom. The defendant was at the time of the proceedings confined in the county jail. At about 12 o'clock noon on October 2, the defendant was brought into court before the judge, who was at the time engaged in the trial of a civil suit. The county attorney was present, and the defendant, who had no counsel stated to the Court that he had decided to enter a plea of guilty. The Court thereupon made an entry, a part of which is as follows:
"Now, to-wit, October 2, 1941, this cause comes on for hearing to the Court, before the Hon. L. B. Forsling, Judge the State appears by M. E. Rawlings, county attorney in and for Woodbury County, Iowa, and the defendant appears in person, and in open court states to the Court that he is indicted herein under his true name and that he desires no attorney at this time to represent him; waives formal arraignment under the indictment in this cause, and now enters a plea of guilty of the crime of manslaughter, as therein charged, and waives time for pronouncing sentence and entering judgment herein, under said plea, and thereupon the Court forthwith proceeds to pronounce sentence and enter judgment herein, and finds that said defendant is a fit subject for commitment to the Men's Reformatory at Anamosa, Iowa, and that he should accordingly be committed thereto and confined therein, at hard labor, for an indeterminate period as provided by law in such cases, not to exceed, however, a period of eight (8) years, and that he should pay the costs of this action, said sentence being for violation of section 12919 of the 1939 Code of Iowa."
Just what occurred at the time of such sentence other than what appears on the foregoing entry is disputed. It is clear from the evidence however that prior to such arraignment, plea, and sentence, the defendant had several interviews with the county attorney. The first was in the county attorney's office and there were present besides the defendant and the county attorney, the deputy sheriff and one Dave Schiller; later there was another interview in the same office at which were present the defendant's wife and brother; and also a third interview, at which, as claimed by the county attorney, defendant informed him that he desired to plead guilty. Whatever may have been said by the county attorney or to him, it followed that the plea of guilty was entered.
In the afternoon of the same day, according to the statement of the judge, at about 2 o'clock, Attorney Yeaman approached the bench while the Court was engaged in the trial of a civil case to a jury, and in a conversation the attorney stated that it was his belief that the defendant was not guilty of the crime to which he had pleaded guilty, and it was such attorney's intention to move that the plea of guilty be withdrawn, and he then inquired when the matter could be heard and wanted it heard immediately, for the reason that the counsel thought the defendant would be taken to the Reformatory under mittimus at once. The Court thereupon requested the attorney to see Mr. Rawlings, the county attorney, and the Court then made inquiry as to whether a written motion had been or would be filed, and was informed that written motion had not been filed, and that the Court, according to his recollection, told the attorney that if the county attorney would agree to have the plea set aside the Court itself had no objection to setting aside such plea. Yeaman went to the grand jury room, called out the county attorney, and asked if he would agree to such withdrawal of plea, which request the county attorney denied.
Defendant's attorney then went to his office, prepared an application and filed it in the clerk's office at 4:22 that afternoon. In the meantime, however, Marie Peters, a deputy clerk in the office of the clerk of the district court, entered on the record the judgment of the district court beginning at 2:15 and completing the record by 3 o'clock. The motion to withdraw the plea was in substance:
1. That the same had not been recorded in the office of the Clerk of the District Court.
2. That defendant was not represented by counsel at the time the plea was entered.
3. For the reason that said defendant was given to understand that in case he would plead guilty he would be paroled. That one Dave Schiller, who had been a friend of his and also a friend of the county attorney, told this defendant that he had seen the county attorney and that if he, the defendant, would plead guilty he would receive a parole and that two other cases that were pending against him would be dismissed.
4. For the reason that the Court sentenced this defendant immediately upon entering the plea.
5. For the reason that he is not guilty of the charge.
The county attorney filed a resistance to this motion upon the ground that the Court had no jurisdiction to set aside the plea for the reason that the motion was not filed until after said plea had been written into the records in the office of the clerk.
Hearing on the application of the defendant was held on Monday, October 6, before the judge, and evidence submitted. It appears from the testimony of the deputy clerk that she was called up by the county attorney before the record was completed in regard to writing the record, but the deputy clerk is not clear as to just what conversation was had over the phone. At such hearing, the defendant was examined in his own behalf. His own statement as to what occurred between him and the county attorney naturally does not agree with that of the county attorney himself, but it is established that there were at least two or three interviews at which was discussed the question of his entering the plea of guilty and also the question of the matter of parole. We need not go further into the testimony produced at the trial. The foregoing indicates the substance of what occurred.
The judge, at the conclusion of the hearing and reception of testimony entered an order setting out the facts as above and finding that the entry of judgment upon the official court record was not later than 3 o'clock and the filing of the motion to withdraw the plea at 4:22, and then stated that under the law the Court was without jurisdiction to grant the relief prayed, and assuming that the Court would have jurisdiction, that the showing in evidence introduced in support of the defendant's motion to withdraw his plea fails to show that ...
To continue reading
Request your trial