State v. Lindsey

• Decision Date: 12 November 1969
• Docket Number: No. 53629,53629
• Citation: 171 N.W.2d 859
• Parties: STATE of Iowa, Appellee, v. Harold Henry LINDSEY, Jr., Appellant.
• Court: Iowa Supreme Court

Page 859

171 N.W.2d 859

STATE of Iowa, Appellee, v. Harold Henry LINDSEY, Jr., Appellant.

No. 53629.

Supreme Court of Iowa.

Nov. 12, 1969.

John A. Cronkhite, of Cedar Rapids, for appellant.

Richard C. Turner, Atty. Gen., Michael J. Laughlin, Asst. Atty. Gen., and William G. Faches, County Atty., Stephen B. Jackson, Asst. County Atty., Cedar Rapids, for appellee.

LARSON, Justice.

On January 21, 1969, the appellant, Harold Henry Lindsey, Jr., was charged with the crime of larceny of a motor vehicle, in violation of section 321.82 of the 1966 Code of Iowa. At his arraignment before the court he was represented by court-appointed counsel and entered a plea of guilty to the charge. Pursuant to interrogation by the judge, the plea was accepted, a date was set for sentencing, and a presentence investigation was ordered.

Prior to pronouncing sentence on February 3, 1969, the court again questioned defendant and gave each counsel an opportunity to make statements. Counsel for the State then advised the court that, although he had indicated to defendant's counsel that the State would recommend probation, upon review of the presentence investigation the county attorney had decided no probation should be recommended. Defendant's counsel, making no reference to the county attorney's decision, did not ask to withdraw the plea, but urged the court to grant probation to defendant, who was then 18 years of age. At the conclusion of this hearing the trial court carefully considered the request and rejected it, sentenced defendant to an indeterminate term not to exceed tne years in the Iowa State Men's Reformatory at Anamosa, Iowa, and instructed him in detail as to his appellate rights.

On March 24, 1969, at defendant's request, the court appointed a different attorney to assist defendant in perfecting and prosecuting an appeal. This appeal followed.

The sole error assigned and relied upon for reversal is the trial court's failure at the time of sentence to inquire further into the voluntariness of the plea, especially after the county attorney's statement relative to a probation recommendation. We find no merit in the assignment.

Unless the disclosure at the sentence hearing was sufficient to alert the trial court that statements made to defendant's attorney prior to the plea of guilty were reasonably calculated to influence the accused's decision to a point of coercion or promise of leniency, there was no error in its failure to inquire further into the voluntariness of the plea. We find the circumstances revealed here were insufficient.

I. A plea of guilty to a criminal charge should not be accepted by the court without first determining that such a plea is voluntary. To determine that fact, we have said, the court should address the defendant personally to determine that he understands the nature of the charge and the possible sentence that courd be imposed, that his plea not been induced by a promise or threat by those in authority, and that by the plea he waives his right to a trial by jury. State v. Sisco, Iowa, 169 N.W.2d 542; State v. Whitehead, Iowa, 163 N.W.2d 899; State v. Rife, 260 Iowa 598, 149 N.W.2d 846; State v. Bastedo, 253 Iowa 103, 111 N.W.2d 255; State v. Kulish, 260 Iowa 138, 143, 148 N.W.2d 428, 432; Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473, and citations in each. Also see Parrott v. Haugh, Iowa, 158 N.W.2d 766, 770; Herold v. Haugh, 259 Iowa 667, 669, 145 N.W.2d 657, 658; State v. Kellison, 232 Iowa 9, 14, 4 N.W.2d 239, 242; State v. Cooper, Iowa, 161 N.W.2d 728.

On the other hand, when such inquiry has been made and the defendant has been duly advised of his rights by the court before the guilty plea is accepted, it is the duty of defendant, before sentence is pronounced, to show good cause for its withdrawal or at least move that it be withdrawn. State v. Kellison, supra; Euziere v. United States (10th Cir.), 249 F.2d 293.

II. A mere reading of this brief record and transcript shows that the trial court carefully net and complied with each of the above requirements. Indeed, it would be hard to outline a more appropriate inquiry and informative process.

When defendant and his counsel appeared before the court on January 23rd, his attorney informed the court the accused was there 'to enter a plea to the charge.' The court then stated: 'All right. Mr. Lindsey, you are accused of the felony offense of larceny of a motor vehicle in violation of Iowa Code Section 321.82. That code section provides as punishment imprisonment in the penitentiary not more than ten years or by a fine of not more than.$1000.00 or by both such fine and imprisonment. Are you aware that that is the potential range of punishment in this case?' Defendant answered, 'Yes, I am.' The court then asked him, 'How do you now plead?' The defendant answered, 'Guilty.'

Thereafter the following dialogue occurred:

'THE COURT: Is this your own voluntary decision?

'THE DEFENDANT: It is.

'THE COURT: Has anybody induced you to plead guilty by means of any threats or by means of any promise to you?

'THE DEFENDANT: No, they haven't.

'THE COURT; All right. Are you satisfied with the representation that Mr. Blackstock has given you in this matter?

'THE DEFENDANT: Yes, I am.

'THE COURT: And have you had an opportunity to fully and completely discuss the facts of this case with Mr. Blackstock? (Defendant's attorney)

'THE DEFENDANT: Yes, I have.

'THE COURT: And do you understand that by pleading guilty you are admitting that you are in fact guilty of the crime of larceny of a motor vehicle? Do you understand that?

'THE DEFENDANT: Yes, sir.

'THE COURT: All right. I find your plea to be voluntary and accept it. I'll set sentencing for January 31, 1969, and I'll want a pre-sentence investigation report.'

The parties thereafter agreed on February 3 as the day for sentencing, but on January 31 a hearing was commenced to consider the presentence report. After some preliminaries, the court asked counsel: 'Gentlemen, is there any legal cause why sentence cannot be pronounced at this time?' Both counsel replied, 'None * * *.' Thereafter these proceedings occurred:

'THE COURT: All right. Mr. Lindsey, you have previously entered a plea of guilty in this matter. Do you now reaffirm your plea of guilty?

'THE DEFENDANT: Yes, I do.'

A discussion of the presentence report and the examination of two probation officers in open court would serve no useful purpose here. It is evident they considered defendant's juvenile record very bad and felt probation after sentence and commitment rather than before was preferred in this case. The matter was then recessed until February 3, 1969, and resumed on that date. At the resumed hearing Mr. Jackson, Assistant County Attorney, appeared for the State in place of Assistant County Attorney Martin. Mr. Martin had previously told the court: '* * * Based on the fact that this is a first adult offense, the County Attorney's Office recommends probation.'

When the court extended to defendant and both counsel 'an opportunity to make further statements if they so desire', Mr. Jackson said he originally talked with defendant's counsel 'regarding this case and indicated to him that we would recommend probation in our office, * * *. I don't believe that was any inducement for this man to plead guilty to this charge. And since then his presentence investigation has come back and it shows quite a lengthy record, and Mr. Faches, the County Attorney, has indicated that no probation should be recommended. * * *' Defendant's counsel then stated: 'Your Honor, again I would simply appeal to the Court on the basis of the fact that this is the defendant's first offense charged as an adult, that he be given a chance to see if he can make probation and abide by the rules and regulations as they apply to adults. * * *'

The court then asked: 'Mr. Lindsey, is there anything you'd like to say before sentence is pronounced?' The defendant replied: 'I think I could do a lot better under adult probation than I did under juvenile. From what I see, a more stronger hand, and I think I could function better under it.' The court then asked: 'Anything else?' Defendant said: 'No.' The court then again asked if there is 'Any legal cause why sentence cannot be pronounced?' Defendant's counsel answered 'No. Your Honor.' Mr. Jackson said: 'The State knows of none, * * *.'

Sentence was then pronounced and appeal bond set at $2,500.

The court then addressed defendant as follows:

'Mr. Lindsey, you have a right, if you wish, to appeal your conviction to the Iowa Supreme Court. If you are unable to pay the costs of appeal you have a right to apply to this court for appointment of counsel, the furnishing of a transcript, printing of the record on appeal, and necessary briefs on appeal, at the expense of the county. In order to perfect an appeal you must cause to be served on the County Attorney a notice in writing that you are appealing and cause this written notice to be filed with the clerk of this court with evidence of service on the County Attorney endorsed thereon or affixed thereto within 60 days of this date. Now such service and filing of the written notice of appeal within 60 days is what we call jurisdictional, and if the written notice of appeal is not so served and filed with the clerk of this court within 60 days such failure to do so shall be deemed to be a voluntary waiver by you of your right to appeal. * * *' The court went on to explain why probation was not granted and suggested that defendant would undoubtedly be given an early parole if he obeyed the 'stronger hand of guidance and discipline.'

Perhaps we have set out more of the record than is necessary, but we think it clearly illustrates the problem facing all trial courts today when called upon to determine whether a plea of guilty entered to a pending charge meets the...