State v. Lemburg, 2-59848

• Decision Date: 31 August 1977
• Docket Number: No. 2-59848,2-59848
• Citation: 257 N.W.2d 39
• Parties: STATE of Iowa, Appellee, v. Jack L. LEMBURG, Appellant. Jack L. LEMBURG, Appellant, v. Lou V. BREWER and State of Iowa, Appellees.
• Court: Iowa Supreme Court

Page 39

257 N.W.2d 39

STATE of Iowa, Appellee, v. Jack L. LEMBURG, Appellant.

Jack L. LEMBURG, Appellant, v. Lou V. BREWER and State of Iowa, Appellees.

No. 2-59848.

Supreme Court of Iowa.

Aug. 31, 1977.

Gary L. Robinson, Cedar Rapids, for appellant.

Richard C. Turner, Atty. Gen., J. Susan Carney, Asst. Atty. Gen., and Eugene Kopecky, County Atty., for appellees.

Heard before MOORE, C. J., and RAWLINGS, REYNOLDSON, HARRIS, and McCORMICK, JJ.

HARRIS, Justice.

These two consolidated appeals arise from a plea of guilty to the crime of assault with intent to commit murder in violation of § 690.6, The Code. Defendant Lemburg sought postconviction relief under chapter 663A, The Code, and appeals the trial court's denial of relief. In addition, Lemburg was given permission for a delayed appeal from his conviction by his guilty plea in the same proceeding. We affirm the trial court on both appeals.

The facts are without serious dispute. On April 12, 1971 Jack L. Lemburg (Lemburg) was indicted on the charge by the Linn County grand jury. He was arraigned on the same day, waived time, and entered a plea of not guilty. On June 22, 1971 he appeared in district court and changed his plea from not guilty to guilty as charged. Lemburg was represented at the time by two Cedar Rapids attorneys whose competence he assails in these proceedings. He claims pressure was inflicted upon him to enter a guilty plea in violation of his constitutional rights and that his plea was not voluntarily entered. He further claims he was not at the time in control of his faculties.

An evidentiary hearing was held on Lemburg's claim on June 25, 1976 after which the trial court filed its ruling which found (1) he had been represented by competent counsel, and (2) the trial court before accepting Lemburg's guilty plea complied with the requirements of State v. Sisco, 169 N.W.2d 542 (Iowa 1969) and Brainard v. State, 222 N.W.2d 711 (Iowa 1974). The trial court denied and dismissed Lemburg's application for postconviction relief.

I. Lemburg first contends his guilty plea was not knowingly and intelligently entered. He believes the trial court's colloquy at the time of his plea was insufficient to show he understood the nature of the charge against him. He argues the elements of the charge were not completely explained. The issue involves the first two requisites for taking guilty pleas set down in Sisco, supra. The first Sisco requirement is that the accused understand the charge. The second Sisco requirement is the determination of whether the accused understands the penal consequences of his guilty plea. Only if both requisites are satisfied can it be said an accused's guilty plea was knowingly and intelligently entered. ¹

Turning to the first Sisco requirement, defendant's understanding of the charge, we note the colloquy between the trial court and defendant on the subject was as follows:

"THE COURT: * * * Mr. Lemburg, I'm going to have to ask you a number of questions to make sure basically of two things: if this decision to change your plea from not guilty to guilty is your own voluntary decision, and secondly, to make sure that you do understand what your legal rights are

"THE DEFENDANT: Yes.

"THE COURT: and that you are giving up certain basic legal rights when you plea guilty. All right. To begin with, Mr. Lemburg, you are accused of the felony offense of assault with intent to commit murder in violation of Iowa Code Section 690.6. That Code Section provides as follows: 'If any person assault another with intent to commit murder, he shall be imprisoned in the penitentiary not exceeding thirty years.' Do you understand that that is the description of the offense and that is the punishment that is provided?

"THE DEFENDANT: Yes, sir.

"THE COURT: Now I'm going to discuss with you in a little more detail the sentencing. In Iowa the sentence that would be imposed would read as follows: 'That the defendant shall be imprisoned in the Iowa State Penitentiary at Fort Madison, Iowa, for an indeterminate period of time not to exceed 30 years.' I would have no power to prescribe a shorter period of time. The actual length of time you would serve would depend on whether or not you were granted parole, would depend whether or not you obtained the time off for good behavior. But in no event would the incarceration be for greater than 30 years. Do you understand that?

"THE DEFENDANT: Yes.

"THE COURT: All right. Do you understand that murder is defined in the Iowa Code as killing any human being with malice aforethought either express or implied?

"THE DEFENDANT: Yes.

"THE COURT: Do you understand that by pleading guilty you are admitting that you did in Linn County, Iowa, on or about February 21, 1971, assault Joan M. Lloyd with intent to murder her?

"THE DEFENDANT: Yes.

"THE COURT: And by pleading guilty you are admitting that you did that.

"THE DEFENDANT: Yes.

"THE COURT: Malice aforethought now murder, I might point out, Mr. Lemburg, does not require that you had at the time a specific intent to kill her. It requires only that there be the assault with intent to commit murder. The intent to commit murder is the state of mind of malice, where you did so without regard to whether the victim would live or die. Do you understand that?

"THE DEFENDANT: Yes.

"THE COURT: All right. Mr. Lemburg, you are charged with assault with intent to commit murder. How do you now plead?

"THE DEFENDANT: Guilty.

" * * *.NDA

"THE COURT: All right. I'm going to go through the legal rights you have with you. I think you may be acquainted with them but I want to make sure you know what they are. You understand that you have a legal right, if you wish, to stick with your plea of not guilty.

"THE DEFENDANT: Yes.

"THE COURT: And in that event you would have a jury trial, either this coming Monday or at some later date depending on the status of the Petition for Writ of Certiorari.

"THE DEFENDANT: (Nod in the affirmative.)

"THE COURT: Do you understand that you would have a right to not be convicted

"THE DEFENDANT: Yes.

"THE COURT: of this crime unless the State proved to all 12 jurors by its evidence beyond a reasonable doubt that you are in fact guilty? Do you understand that?

"THE DEFENDANT: Yes.

"THE COURT: Do you understand you would have the right to have the assistance of Mr. Sullivan and Mr. Pundt I believe both of you are appointed in this case; is that correct?

"MR. SULLIVAN: Correct.

"MR. PUNDT: Correct.

"THE COURT: to assist you in the trial of this case; do you understand that?

"THE DEFENDANT: Yes, sir.

"THE COURT: You would have the right to have all the State's witnesses personally brought into court, personally confront them and have your attorneys cross-examine them. You would also have the right to use the Court's power of subpoena to subpoena into Court any witnesses you wanted to be brought here to testify for you. You would have the right at the trial to either take the stand and testify yourself or to not testify, as you chose fit. And if you would choose to not testify you would be entitled to have me instruct the jury that they could draw no inference adverse to you from your failure to testify. In other words, you have a right not to incriminate yourself.

"THE DEFENDANT: (Nod in the affirmative.)

"THE COURT: Do you understand that?

"THE DEFENDANT: Yes, sir.

"THE COURT: All right. Mr. Lemburg, do you understand that when you plead guilty you are giving up all those rights?

"THE DEFENDANT: Yes, sir.

"THE COURT: There will be no jury trial.

"THE DEFENDANT: (Nod in the affirmative.)

"THE COURT: You are convicting yourself.

"THE DEFENDANT: Yes.

"THE COURT: All right. Have I overlooked anything?

"MR. WHITE (Assistant County Attorney): Not that I'm aware of, Your Honor."

We believe this record shows the trial court determined defendant understood the nature of the charge. Indeed we believe the colloquy shows full compliance with the more stringent requirements of Brainard. This conclusion is strengthened by our holding in State v. Reaves, 254 N.W.2d 488 (Iowa 1977). See also Wallace v. State, 245 N.W.2d 325 (Iowa 1976); Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976).

Turning to the second Sisco requirement, determining the defendant understands the penal consequences of his guilty plea, we again examine the record made at the time the plea was entered:

"THE COURT: Now I'm going to discuss with you in a little more detail the sentencing. In Iowa the sentence that would be imposed would read as follows: 'That the defendant shall be imprisoned in the Iowa State Penitentiary at Fort Madison, Iowa, for an indeterminate period of time not to exceed 30 years.' I would have no power to prescribe a shorter period of time. The actual length of time you would serve would depend on whether or not you were granted parole, would depend whether or not you obtained the time off for good behavior. But in no event would the incarceration be for greater than 30 years. Do you understand that?

"THE DEFENDANT: Yes."

This record amply complies with the second Sisco requirement. The trial court receiving the plea clearly outlined the sentence to which Lemburg would be subjected.

Lemburg's first contention is without merit.

II. The second assignment presented in these joint appeals is whether the trial court established the existence of an adequate factual basis for Lemburg's guilty plea. This assignment addresses the fourth Sisco requisite. Lemburg believes the colloquy to establish a factual basis fell short of the requirements outlined in Ryan v. Iowa State Penitentiary, Ft. Madison, 218 N.W.2d 616, 619 (Iowa 1974). Lemburg points to the three methods suggested in Ryan which might be used to ascertain whether a factual basis exists. He believes none of the suggested methods were used in these proceedings.

The trial court's factual basis inquiry in the colloquy with Lemburg was as follows:

"THE COURT...