State v. LeMay, 10719
| Decision Date | 20 October 1964 |
| Docket Number | No. 10719,10719 |
| Citation | 396 P.2d 83,144 Mont. 315 |
| Parties | The STATE of Montana, Plaintiff, v. James W. LeMAY, Defendant. |
| Court | Montana Supreme Court |
Anthony F. Keast (argued), Missoula, for plaintiff.
V. G. Koch, Sidney, Forrest H. Anderson, Helena, Charles M. Joslyn (argued), Helena, for defendant.
This is an appeal from an order denying a Motion for withdrawal of a plea of guilty and to set aside the sentence and judgment predicated thereon. In the alternative the petitioner prays for a writ of error coram nobis.
An order granting leave to file information was given on August 14, 1957, at Sidney, Montana, in the district court. The petitioner was arraigned before the Honorable F. S. P. Foss, and entered his plea of guilty on the same day to the charge of rape. At defendant's request sentencing was also pronounced on the same day, defendant waived the time for imposition of sentence and he was sentenced to imprisonment in the State Prison, at hard labor, for a term of twenty years. The facts leading up to the plea and sentencing are briefly set forth herein.
On August 3, 1957, the prosecutrix agreed to go with defendant on a date to a dance. She was taken out on a country road, and was there severely beaten and raped. On August 5, 1957, the defendant was arrested, taken to the prosecutrix's home and was there identified to be her assailant. While in the home the prosecutrix's father took a 'swing' at the defendant, but was restrained by the arresting officers, and immediately removed from the premises. The defendant has at no time denied his guilt of the forceful rape.
After sentencing the petitioner was taken to prison and began to serve his time. The first indication to the court that he felt aggrieved and wished to change his plea was given by letter to the clerk of the district court on April 24, 1961, three and one-half years after sentence. Nine months later, on January 24, 1962, a pauper's affidavit, and petition and motion to change plea was filed before the Honorable L. C. Gulbrandson, who succeeded Judge Foss. On February 14, 1962, over four years after sentence, Judge Gulbrandson appointed Anthony F. Keast, Esq. to represent the defendant, James W. LeMay. The petitioner's brief was not filed with the district court until January 26, 1963, some five years, five months and twelve days after imposition of sentence. On June 26, 1963, Judge Gulbrandson denied petitioner's motion to change plea, and thereafter, petitioner perfected this appeal. At the time of this appeal, it is understood by this court that the petitioner has been released on parole and is now a fugitive from justice due to breaking his parole by leaving the jurisdiction.
The petitioner contends that the court did not inform him of the laws defining the crime of rape nor the laws defining the punishment upon conviction of rape. As a result of this petitioner contends that his plea of guilty was entered by mistake and under misconception of the nature of the charge and with a misunderstanding as to its effect.
The petitioner also contends that his plea of guilty was entered through fear and official misrepresentation due to the incident of the prosecutrix's father taking a 'swing' at him at the time that he was taken to the prosecutrix's home for identification.
R.C.M.1947, Sec. 94-4806, and the Montana Constitution Art. III, Sec. 16, provide that in all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel and to demand the nature and cause of the accusation.
In State v. McSloy, 127 Mont. 265, 261 P.2d 663, this court held that an information charging a defendant with an infamous crime against nature, and describing the manner in which the crime was committed, did not leave the defendant in the dark as to the nature and cause of the accusation.
In the case at, bar, before District Judge Foss, the record clearly reveals that the information was read in its entirety to the defendant. The information stated that defendant was charged with the crime of rape, a felony, and described the manner in which the crime was committed. The defendant answered that James W. LeMay was his name, and stated he did not have, and did not want an attorney. Judge Foss then explained that the defendant was charged with a felony, to wit, rape, punishable by imprisonment in the State Prison in Powell County, Deer Lodge, Montana. He explained that defendant was entitled to be represented by counsel, and that if defendant ant did not have money or means with which to hire an attorney the court would appoint counsel for him at the expense of the county. The defendant again stated he did not want an attorney. The record shows that the defendant, after the court's explanation of his rights, waived the twenty-four hours to which he was entitled before entering his plea. He also waived forty-eight hours in which to receive sentence.
In oral argument, counsel for the petitioner argued that the defendant could not waive his right to counsel. He cited Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733, which held that in both federal and state courts, counsel must be provided for defendants unable to employ counsel unless the right is competently and intelligently waived. The rule in the Gideon case is complied with since the petitioner was fully informed of his right to counsel, and with this knowledge waived his right to counsel. The Gideon case expressly preserves the right to waive counsel.
From the facts, it is clear that defendant was fully informed of the nature and cause of the accusation. The law does not require a complete exhaustion of the law pertaining to the offense and method of sentencing in order to comply with telling the defendant the 'nature and cause of the accusation'. If defendant desires, or feels that he needs a complete explanation of the law and of sentencing methods, counsel is provided for him if he so desires. The law only requires that the defendant be fully apprised of the charge which faces him, the on what grounds such a charge is predicated. Whether or not defendant wants, or needs, counsel is for his to decide after he has been so apprised. There is no contention that petitioner is of subnormal intelligence or understanding. There is no merit to the contention that defendant entered his plea of guilty by mistake and under misconception of the nature of the charge. The court had no duty to act as counsel for the defendant and thereby explain all of the details and ramifications of the law of rape and sentencing procedure.
In considering the defendant's second contention that his plea of guilty was entered through fear and official misrepresentation due to the incident of the prosecutrix's father taking a 'swing' at him, it is noted from...
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