State v. Lavy

• Decision Date: 05 March 1991
• Docket Number: No. 17921,17921
• Citation: 828 P.2d 895,121 Idaho 866
• Parties: STATE of Idaho, Plaintiff-Respondent, v. William Rankin LAVY, Defendant-Appellant.
• Court: Idaho Court of Appeals

Page 895

828 P.2d 895

121 Idaho 866

STATE of Idaho, Plaintiff-Respondent, v. William Rankin LAVY, Defendant-Appellant.

No. 17921.

Court of Appeals of Idaho.

March 5, 1991.

Rehearing Denied May 21, 1991.

Scott E. Fouser, Nampa, for defendant-appellant.

Larry J. EchoHawk, Atty. Gen., Myrna A.I. Stahman, Deputy Atty. Gen. (argued), Boise, for plaintiff-respondent.

WALTERS, Chief Judge.

This is an appeal by William Lavy from his judgment of conviction for manufacturing, and for possession of, controlled substances. The judgment was entered upon Lavy's pleas of guilty to the two charges. As explained below, we vacate the judgment and remand the case for reinstatement of Lavy's previous pleas of not guilty on the ground that the record does not show the pleas of guilty were tendered or accepted with full knowledge by Lavy of the waiver of his right against compulsory self-incrimination.

Pursuant to a plea bargain, William Lavy pled guilty to a charge of manufacturing a controlled substance, methamphetamine, and to a charge of possession of a controlled substance, cocaine. I.C. §§ 37-2732(a) and 37-2732(c). The state dismissed seven other felony charges and one misdemeanor offense relating to Lavy's alleged involvement with the manufacture, possession or delivery of controlled substances. The district court imposed unified sentences of twelve years, to be served concurrently and with minimum periods of confinement of four years on each charge. The court further ordered Lavy to pay court costs, a fine of $3000 and to reimburse the county for the services of his court-appointed counsel. Lavy filed a motion to reduce his sentences, within fourteen days after the judgment of conviction was entered, thus tolling the time to appeal from the judgment. I.A.R. 14. The motion was denied and Lavy timely filed a notice of appeal. While the appeal was pending, Lavy filed a motion to withdraw his pleas of guilty, a motion to commute his sentences to a jail term, and a motion for release on bond, pending this appeal. These motions also were denied by the district court.

On appeal, Lavy raises several issues. First, he contends his sentences are unduly harsh and constitute an abuse of the court's discretion. Second, he argues that the court erred in imposing a twelve-year unified sentence on the possession charge, because the maximum sentence permitted for simple possession of a controlled substance is three years. I.C. § 37-2732(a)(1)(A). Next, asserting that his pleas of guilty were not knowingly, voluntarily and intelligently entered, he challenges the court's refusal to allow him to withdraw his guilty pleas. ¹ Finally, he questions the validity of his pleas with respect to the waiver of his right against self-incrimination. We find this latter issue dispositive. We hold that a reversible error exists with regard to the acceptance of Lavy's pleas inasmuch as the record fails to show that the right against self-incrimination was ever explained to, understood or waived by Lavy. As a result, we vacate the judgment of conviction with directions to reinstate Lavy's pleas of not guilty.

The record shows that, when Lavy's pleas of guilty to the charges were tendered, the district court interrogated him regarding the waiver of some--but not all--of his fundamental rights. The dialogue between Lavy and the court was as follows:

THE COURT: You understand that by pleading guilty you waive certain constitutional rights?

LAVY: Yes, Your Honor.

THE COURT: You have a right to a jury trial, you have a right to confront all witnesses called to testify against you. You have the right to cross-examine them under oath. You have a right to call your own witnesses, present evidence [sic] your own case. You have a right to subpoena any witnesses that you desire to present on your behalf. You have a right that the State must prove you guilty beyond a reasonable doubt. You have a right of presumption of innocence, and that presumption carries with you throughout the trial. Do you understand that by pleading guilty you waive all of those rights?

LAVY: Yes, sir.

THE COURT: Do you understand that you waive any defenses you might have?

LAVY: Yes, I understand that.

THE COURT: Would you be pleading guilty to Count I which charges you with the manufacture of methamphetamine and Count IV which charges you with the possession of cocaine because you are in fact guilty of those two counts?

LAVY: Yes, sir, I am guilty.

THE COURT: The Court is satisfied that the change of plea is made voluntarily and freely without coercion, promises or threats. At this time, I will permit you to withdraw your not guilty pleas to Count I and Count IV and I will ask you, Mr. Lavy, how you plead to Count I that charges that on or about the 30th day of April, 1988, you manufactured a controlled substance to-wit: methamphetamine.

LAVY: Yes, sir, I am guilty of that.

THE COURT: I will ask you, Mr. Lavy, how you plead to Count IV which charges you with on or about the 30th day of April, 1988, you were in possession of a controlled substance, to-wit: cocaine, approximately .02 pounds.

LAVY: I'm guilty of that.

THE COURT: The Court will accept and direct the clerk to enter your pleas of guilty to Count I and Count IV of the Information. The Court will order a presentence investigation in this case and set this matter for sentencing on the 28th of November at 9:30 a.m.

Notably absent from this dialogue is any reference to the right against self-incrimination which Lavy would enjoy during his prosecution by the state. Rule 11, I.C.R., provides in pertinent part:

Before a plea of guilty is accepted, the record of the entire proceedings, including reasonable inferences drawn therefrom, must show:

. . . . .

(3) The defendant was advised that by pleading guilty he would waive his right against compulsory self-incrimination,....

This requirement in Rule 11 has its genesis in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), followed by our Supreme Court in State v. Colyer, 98 Idaho 32, 557 P.2d 626 (1976). As provided in Colyer, whether a plea of guilty is voluntary and understood by the defendant requires a determination that the defendant knowingly and intelligently waived, among others, his right to refrain from incriminating himself. In State v. Birrueta, 98 Idaho 631, 570 P.2d 868 (1977), our Supreme Court addressed a similar situation involving waiver of the protection against self-incrimination upon a plea of guilty. The Court said: "In addition, the record does not indicate that the right against self-incrimination was ever explained to, understood or waived by Birrueta. As we stated in Colyer, those elements are essential for the acceptance of a guilty plea." 98 Idaho at 633, 570 P.2d at 870. See also State v. Mesenbrink, 115 Idaho 850, 771 P.2d 514 (1989). More recently, in State v. Carrasco, 117 Idaho 295, 298, 787 P.2d 281, 285 (1990), the Court recognized that where an explanation to the defendant of his rights which would be waived by a plea of guilty was given during the defendant's initial arraignment in the district court, the explanation need not be renewed at a later time when the defendant enters his plea of guilty. Nonetheless, the court must still determine--when the guilty plea is entered--that the defendant understood he would be waiving his rights. 117 Idaho at 295, 787 P.2d at 287.

In response to Lavy's assertion on this appeal that his pleas were invalid because the court failed to determine that Lavy understood he would be waiving his right against self-incrimination, the state contends that the question was not preserved for appeal inasmuch as Lavy did not raise the issue to the court below, and further, the record of Lavy's initial appearance before a magistrate in this case shows that Lavy was fully advised of his rights. We must reject each of these contentions.

As to the first point, we note that this appeal was taken directly from the judgment entered in this case. The subsequent motion to withdraw Lavy's pleas, and the order denying that motion, were directed to the scope of the plea bargain, not to the validity of the pleas themselves. Evidently, the defect in the entry of the pleas was not discovered until new counsel--who had not represented Lavy in the proceedings before the district court--reviewed the transcript of the plea hearing for preparation of this appeal. We do not believe that the burden of assuring a defendant's plea is voluntarily, knowingly or intelligently entered lies with the defendant; instead, that burden rests with the court. When that burden has not been properly discharged, it need not be brought directly to the lower court's attention; rather, it is a subject which should be reviewable on a timely appeal from the...