State v. Killpack, 62361

• Decision Date: 21 March 1979
• Docket Number: No. 62361,62361
• Citation: 276 N.W.2d 368
• Parties: STATE of Iowa, Appellee, v. Bruce A. KILLPACK, Appellant.
• Court: Iowa Supreme Court

Page 368

276 N.W.2d 368

STATE of Iowa, Appellee, v. Bruce A. KILLPACK, Appellant.

No. 62361.

Supreme Court of Iowa.

March 21, 1979.

Michael A. Sciortino, of Walter & Sciortino, Council Bluffs, for appellant.

Thomas J. Miller, Atty. Gen., and Ann Fitzgibbons, Asst. Atty. Gen., for appellee.

Considered by REYNOLDSON, C. J., and REES, UHLENHOPP, McCORMICK and McGIVERIN, JJ.

McGIVERIN, Justice.

Defendant Bruce A. Killpack appeals his conviction and sentence under a plea-bargained plea of guilty to conspiracy to commit a forcible felony, to wit: robbery, in violation of section 706.1, Code Supp. 1977. We affirm.

Originally Killpack had been charged with robbery in the second degree based on the January 14, 1978 robbery of a service station attendant. Defendant pled guilty to that offense under a plea bargain in which the State agreed not to seek the mandatory minimum penalty of five years in prison under section 907.7. Defendant, however, was allowed later to withdraw his guilty plea when counsel for the prosecution and defense discovered the court had no discretion to grant probation in a robbery case. See sections 702.11, 711.1, 711.3 and 907.3.

In a second guilty plea proceeding, conducted two and one-half months after the original proceeding, defendant entered a plea of guilty to conspiracy to commit a forcible felony. At that time the presiding judge alluded to the prior guilty plea and its subsequent withdrawal before endeavoring to make a record on the guilty plea to the substituted charge.

In this appeal defendant contends: that the guilty plea upon which his ultimate conviction was based is invalid on various grounds; that he did not receive effective assistance of counsel; and that he should have received probation.

I. Preservation of error. The State contends at the outset that defendant waived his right to challenge the adequacy of his guilty plea proceedings because he did not comply with the requirements of State v. Reaves, 254 N.W.2d 488 (Iowa 1977). In Reaves we held that future appeals challenging the adequacy of guilty plea proceedings must be preceded by presentation of the claim to the trial court in a motion in arrest of judgment under chapter 788, The Code 1977. Id. at 493.

Although on August 21 defendant filed a motion in arrest of judgment after sentence, he only challenged his sentence and did not raise the other issues on which he now relies. Because his motion in arrest failed to raise the remaining claimed inadequacies in the guilty plea proceeding, the State contends defendant waived these issues. However, we recently held in State v. Gardner, 274 N.W.2d 328, 329 (Iowa 1979), the procedural rule promulgated in Reaves does not apply to guilty pleas taken under the present Code.

The State's contention is without merit. We now proceed to consider the issues raised by defendant.

II. Sufficiency of the trial record. Defendant asserts that trial court both failed to adequately advise him with regard to a specific element of the offense charged and failed to determine the existence of a factual basis for that element. These contentions center on trial court's handling of the element of intent. Relying on State v. Ohnemus, 254 N.W.2d 524 (Iowa 1977), defendant claims that, upon eliciting information which showed intoxication, trial court was obligated to either further question him or disallow the guilty plea. Cf. State v. Heinen, 252 N.W.2d 454, 455 (Iowa 1977) (no duty to inquire into wisdom of the plea or possible defenses where evidence shows intoxication).

In State v. Ohnemus we reversed a guilty plea conviction where the court failed to make any inquiry into intent, while accepting a plea of guilty to the charge of entering a dwelling in the nighttime with intent to commit a public offense. The record furthermore, was devoid of "any statement which even minimally manifested" intent. Indeed, the Ohnemus defendant made record statements denying he had been possessed of criminal intent. Id. at 524-525.

The Ohnemus decision represents an application of the now familiar guilty plea guidelines set out in State v. Sisco, 169 N.W.2d 542, 549 (Iowa 1969) and Brainard v. State, 222 N.W.2d 711, 722-723 (Iowa 1974). However, we do not find Ohnemus controlling in either aspect of this two-pronged guilty plea challenge. Although trial court failed to specifically explain the essential element of intent, we have never required discussion of each essential element. State v. Hansen, 221 N.W.2d 274, 276 (Iowa 1974); Michels v. Brewer, 211 N.W.2d 293, 296 (Iowa 1973). The record herein, furthermore, surpasses that which was deemed constitutionally insufficient in Ohnemus.

The record shows the following dialogue between defendant and trial court:

And upon leaving the bar, we decided to go back the way we came, toward Missouri Valley, which took us by the Armstrong Standard station. And upon approaching the station we parked the truck outside of the station about half a block. And myself and Mr. Moore went up to the station and went inside the building. And Mr. Moore had bound up the attendant. At the time, I had a starting gun with me. And a car drove in shortly after that, and we left the station and proceeded back to Missouri Valley.

THE COURT: Did you show that starting gun to the attendant?

THE DEFENDANT: Yes.

THE COURT: Was that for the purpose of obtaining something of value from him?

THE DEFENDANT: Yes, I suppose you could.

THE COURT: Pardon?

THE DEFENDANT: Yes, I suppose you could.

THE COURT: Do you have any reservations about that? Did you show him the gun? Did you persuade him to do anything, give you money or give you anything else of value?

THE DEFENDANT: No. He just saw it. It was no forcible act with it or anything.

THE COURT: Well, was that the purpose of showing it to him?

THE DEFENDANT: Yes, sir.

Although defendant claimed to have been "drinking pretty heavily" early on the night of the offense, there was sufficient evidence in the entire record both to show his understanding of the charge and establish a factual basis for the plea.

Defendant's contention is without merit.

III. Right to jury trial. Defendant next asserts the court failed to properly advise him that he had the right to a jury trial prior to acceptance of the guilty plea. Defendant's claim is premised on Iowa R.Crim.P. 8.2(b)(3), which requires that trial court, before accepting a plea of guilty, inform the defendant he "has the right to be tried By a jury." (Emphasis added.)

Rule 8.2(b)(3) serves to satisfy the constitutional requirement of Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274, 279-280 (1969), that the record demonstrate defendant's waiver of three constitutional rights. The Boykin court said:

Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. (Citation) Second, is the right to trial by jury. (Citation) Third, is the right to confront one's accusers. (Citation) We cannot presume a waiver of these three important federal rights from a silent record. (Emphasis added.)

Rule 8.2(b)(3) is newly enacted; however, we have long recognized the importance of developing a record demonstrating waiver of the right to a trial by jury. In State v Sisco we adopted the American Bar Association Minimum Standards for Criminal Justice relevant to guilty plea proceedings. Those standards included a requirement that defendant be advised his guilty plea waives the right to trial by jury. 169 N.W.2d at 547-548. Later, in Brainard v. State, we established lengthy guidelines for acceptance of guilty pleas and recognized the guilty plea proceeding must "demonstrate that the defendant was actually aware" of his constitutional right to trial by jury. 222 N.W.2d at 717, 722-723.

Although trial court made several allusions to defendant's right to trial, the court did not specifically state to defendant that he was entitled to a Jury trial. The record however, evidences additional references to the Jury's function. In the record we find the following discussion:

THE COURT: If the Court accepts the plea of guilty, the only thing remaining to be done, then, is to impose judgment. You have no Trial and no further proceedings in the matter. Do you understand that?

THE DEFENDANT: Yes, I do.

THE COURT: If you desire to have a Trial, you would be entitled to a trial within 90 days of this date. You'd be entitled to Court-appointed counsel if you cannot afford to pay for your defense at the trial.

If you were convicted at the Trial, you would have the right to have an attorney paid for at public expense on an appeal. . . .

If you desired to have a Trial, the presumption of innocence would prevail as far as you were concerned all the way through the Trial. The burden of proof would be on the State of Iowa to prove beyond a reasonable doubt each of the elements of the offense charged. . . .

THE DEFENDANT: Yes.

THE COURT: If they fail to prove either one or more of those elements, the Jury would be instructed to return a verdict of not guilty.

Later, the court stated:

THE COURT: You should understand that the burden of proof would be on the State to prove the elements of the agreement, conspiracy. Also, the subject matter of that conspiracy, which would be, in this case, robbery. If they failed to prove either one or more of those elements, the Jury would be required to return a verdict of not guilty. Do you understand that?

THE DEFENDANT: Yes.

THE COURT: You'd have the right through your attorney to confront and cross-examine any of the witnesses called by the State, make them testify under cross-examination as to any of the facts claimed by them. In addition, you would have the right through the subpoena power of the Court to require the attendance of...