State v. Malek, 84-709

• Decision Date: 05 April 1985
• Docket Number: No. 84-709,84-709
• Citation: 219 Neb. 680,365 N.W.2d 475
• Court: Nebraska Supreme Court
• Parties: STATE of Nebraska, Appellee, v. John R. MALEK, Appellant.

Page 475

365 N.W.2d 475

219 Neb. 680

STATE of Nebraska, Appellee, v. John R. MALEK, Appellant.

No. 84-709.

Supreme Court of Nebraska.

April 5, 1985.

Syllabus by the Court

1. Post Conviction. Under the Nebraska Post Conviction Act, Neb.Rev.Stat. §§ 29-3001 et seq. (Reissue 1979), an evidentiary hearing is required upon an appropriate motion containing a factual allegation which, if proved, constitutes a violation or infringement of a constitutional right.

2. Pleas. A plea of guilty must not only be intelligent and voluntary to be valid but the record must affirmatively disclose that the defendant entered his plea understandingly and voluntarily.

John R. Malek, pro se.

Paul L. Douglas, Atty. Gen. and Lynne R. Fritz, Asst. Atty. Gen., for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

WHITE, Justice.

This is an appeal from an order of the district court for Lancaster County denying without hearing appellant's application for post conviction relief. We reverse for a determination of whether the appellant's guilty plea was the result of certain representations made to appellant by a third party, at least with the knowledge, and possibly with the approval, of the sentencing court, and therefore involuntary.

In February 1978 the appellant, John R. Malek, while incarcerated at the Nebraska Penal and Correctional Complex, suffered a stab wound and was hospitalized at Lincoln General Hospital. During this hospitalization, the appellant escaped from custody. A few days later, the appellant surrendered himself to Lincoln police officers. Malek was subsequently charged in a two-count information with the crimes of escape, being a habitual criminal, and with the use of a firearm to commit a felony.

Appellant assigns as error the denial of his application for post conviction relief without an evidentiary hearing. Under the Nebraska Post Conviction Act, Neb.Rev.Stat. §§ 29-3001 et seq. (Reissue 1979), an evidentiary hearing is required upon an appropriate motion containing a factual allegation which, if proved, constitutes a violation or infringement of a constitutional right. State v. Williams, 218 Neb. 618, 358 N.W.2d 195 (1984). A plea of guilty must not only be intelligent and voluntary to be valid but the record must affirmatively disclose that the defendant entered his plea understandingly and voluntarily. State v. Tweedy, 209 Neb. 649, 309 N.W.2d 94 (1981).

Although appellant's pro se motion may not artfully state his allegations, an examination of his motion and attached exhibits raises serious questions as to the voluntary nature of his plea.

Appellant's pro se motion contains as an exhibit the complete record of the arraignment and sentencing. The facts relating to the allegations are taken from that exhibit.

The arraignment, held August 8, 1978, was in due form. However, at the sentencing held September 14, 1978, the court, after hearing statements of appellant's attorney, made the following observation:

THE COURT: Have--the Court recognizes in the courtroom Jim Moore, and Jim--Jim, would you come forward, sir? Let the record show that Mr. Moore has talked with the Court about this particular case, and he has--the Court has permitted him to examine the presentence report, is that right, Mr. Moore?

According to the record, Mr. Moore, a volunteer prison counselor, became involved in the appellant's case about a month and a half prior to sentencing. At the sentencing, after being called forward by the court, Mr. Moore was permitted to address the court at length, converse with the appellant, and elicit promises from the appellant that he would cooperate with authorities in controlling problems of sexual assault and drug abuse at the penitentiary. After giving the appellant an extended lecture, the following dialogue took place between Mr. Moore and the appellant:

MR. MOORE: Now, do you promise me that totally and completely? Now, you have been on smack, you have been on heroin, right?

THE DEFENDANT: Yes, sir.

MR. MOORE: All right. And I want to know are you at the present time in any way addicted?

THE DEFENDANT: No, sir.

MR. MOORE: You are in no way addicted?

THE DEFENDANT: No, sir, I'm healthy now.

MR. MOORE: All right, okay. He has given me his word that he is not on drugs. I believe that totally, Your Honor. I believe that he is not going to get on drugs again.

Now, I am making a promise to you at this present moment. Within three years' time regardless of whether you get a habitual criminal rap or not, see, you and I are going to be in the swimming pool at the YWCA swimming side by side. The YWCA, see. The YWCA. My wife belongs to it. I've been over there and swim every couple of weeks.

Now, I'm trying to give you hope this morning. This is the worst day of your...