State v. Mayer

• Citation: 84 P.3d 579,139 Idaho 643
• Decision Date: 16 January 2004
• Docket Number: No. 29030.,29030.
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Farron Rusty MAYER, Defendant-Appellant.
• Court: Court of Appeals of Idaho

84 P.3d 579

139 Idaho 643

STATE of Idaho, Plaintiff-Respondent, v. Farron Rusty MAYER, Defendant-Appellant.

No. 29030.

Court of Appeals of Idaho.

January 16, 2004.

Moss, Cannon, Romrell, Castelton, P.A., Blackfoot, for appellant.

Hon. Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen, Deputy Attorney General, Boise, for respondent.

LANSING, Chief Judge.

Farron Rusty Mayer pleaded guilty to battery with the intent to commit rape. Before he was sentenced, but after he had been informed of the State's sentencing recommendation, he moved for dismissal of the charge and for withdrawal of his guilty plea. These motions were based principally on the contentions that the information did not allege, and Mayer had not understood when pleading guilty, that intent to commit rape required an intent to sexually penetrate the victim. The district court denied both motions, and Mayer appeals. We affirm.

I. FACTUAL & PROCEDURAL BACKGROUND

On June 24, 2001, Mayer attended a party at the residence of Brandy Powell, where both he and Powell consumed alcohol. Mayer claims to have little memory of what took place, but according to Powell, after she had gone to bed the night of the party, she awakened to find Mayer on top of her. His pants were off and hers were partially pulled down, and Powell felt Mayer touching her vaginal area. She pushed him off. Powell's husband then awoke and saw Mayer hiding under the bed with his pants off. Mayer was charged with battery with the intent to commit rape, Idaho Code § 18-911.

Mayer eventually pleaded guilty. Defense counsel thereafter received the presentence investigation report and telephoned Mayer to inform him that the report recommended a "rider,"¹ which would mean that if the recommendation were followed, Mayer would not immediately receive probation. Mayer retained new counsel and moved to withdraw his guilty plea on the ground that it was not made knowingly, intelligently and voluntarily, and was a product of ineffective assistance of counsel. He also filed a motion to dismiss the felony charge, arguing that the information was defective because in alleging the intent to rape, it did not specify that the offense encompassed an intent to penetrate the victim. Both motions were denied. Mayer now appeals, contending that the district court erred in denying the two motions.

II. ANALYSIS

A. Motion to Dismiss

Mayer first asserts that this criminal action should have been dismissed because the information was jurisdictionally defective in that it did not allege all of the elements of the offense. Mayer contends that the information's allegation that he committed a battery with the intent to rape the victim was inadequate because it did not allege the elements of rape and in particular did not allege that Mayer intended to penetrate the victim with his penis.² A charging document will be deemed so flawed that it fails to confer jurisdiction on the court if the facts alleged are not made criminal by statute or if the document fails to state facts essential to establish the offense charged. State v. Byington, 135 Idaho 621, 623, 21 P.3d 943, 945 (Ct.App. 2001); Hays v. State, 113 Idaho 736, 739, 747 P.2d 758, 761 (Ct.App.1987),aff'd,115 Idaho 315, 316, 766 P.2d 785, 786 (1988). Although a jurisdictional defect is not waived by a guilty plea, Byington, 135 Idaho at 623,21 P.3d at 945, the timing of Mayer's challenge to the information, coming only after he had pleaded guilty, affects the level of scrutiny that we will apply in evaluating the sufficiency of the information. If an alleged deficiency is raised by a defendant before trial or entry of a guilty plea, the charging document must state all facts essential to establish the charged offense, State v. Halbesleben, 139 Idaho 165, 168, 75 P.3d 219, 222 (Ct.App. 2003); Byington, 135 Idaho at 623,21 P.3d at 945; but if the information is not challenged until after a verdict or guilty plea, "it will be liberally construed in favor of validity, and a technical deficiency that does not prejudice the defendant will not provide a basis to set the conviction aside." Halbesleben, 139 Idaho at 168,75 P.3d at 222; State v. Cahoon, 116 Idaho 399, 400, 775 P.2d 1241, 1242 (1989); State v. Robran, 119 Idaho 285, 287, 805 P.2d 491, 493 (Ct.App.1991). Thus, if the challenge is tardy, the charging document will be upheld on appeal "unless it is so defective that it does not, by any fair or reasonable construction, charge the offense for which the defendant was convicted." Halbesleben, 139 Idaho at 168,75 P.3d at 222. See also Robran, 119 Idaho at 287,

805 P.2d at 493. Because Mayer did not challenge the information here until after his guilty plea, we exercise "considerable leeway to imply the necessary allegations" within the language of the information. Robran, 119 Idaho at 287,

805 P.2d at 493.

Here, after stating that Mayer was charged with battery with intent to commit rape, and citing I.C. §§ 18-903(b) and 18-911, the information alleged that he "did actually, intentionally, and unlawfully touch the person of Brandy Powell against her will with the intent to commit the crime of Rape by partially disrobing her and touching her vaginal area with his hand and/or penis." Mayer contends that the words "with the intent to commit the crime of rape," are insufficient to allege the specific intent element of battery with intent to commit rape. He contends that "rape" had to be described as it is defined in I.C. § 18-6101, requiring penetration of the victim's oral, anal or vaginal opening with the perpetrator's penis.

We are not persuaded. Although the better practice may be to provide such detail in the charging document, the information here is not jurisdictionally defective. Mayer's argument is very similar to that rejected by this Court in Noel v. State, 113 Idaho 92, 741 P.2d 728 (Ct.App.1987), where the defendant had pleaded guilty to assault with intent to commit murder and subsequently asserted that the charging information was defective because it omitted reference to malice aforethought in alleging intent to commit murder. That is, Noel argued, like Mayer, that elements of the "intended" crime had to be alleged in detail. In rejecting Noel's contention, we stated:

This omission was not truly jurisdictional. It did not render the information so defective that it failed to charge a crime. The charge was simply incomplete.

Id. at 94, 741 P.2d at 730. Likewise, in Mayer's case the information alleges facts sufficient to state an offense and therefore is sufficient to confer jurisdiction. As will be more thoroughly discussed below concerning Mayer's claim that he pleaded guilty without an understanding of the mental element of the offense, the term "rape," even as used in the everyday language of nonlawyers, refers to sexual penetration. The pleading here was sufficient to state the essential facts constituting the charged offense.

B. Motion to Withdraw Guilty Plea

1. Defendant's awareness of the intent element

Mayer next challenges the denial of his motion to withdraw his guilty plea. He contends that he entered the plea without the requisite understanding of the nature of the charge because neither the court nor his attorney informed him that the intent to commit rape meant an intent to penetrate the victim. Mayer contends that he never intended penetration nor admitted to having such intent.

Under Idaho Criminal Rule 33(c), the withdrawal of a guilty plea may be allowed in the trial court's discretion. The scope of that discretion is affected by the timing of the motion. Where the motion is filed before sentencing, the defendant need only show a "just reason" for withdrawing the plea, but after sentencing, the plea may be set aside only to correct manifest injustice. I.C.R. 33(c); State v. Ballard, 114 Idaho 799, 801, 761 P.2d 1151, 1153 (1988); State v. Dopp, 124 Idaho 512, 516, 861 P.2d 82, 86 (Ct.App.1992). This distinction in the standards is utilized to avoid encouraging defendants to plead guilty in order to test the potential punishment and then withdraw the plea if the sentence is unexpectedly severe. State v. McFarland, 130 Idaho 358, 361, 941 P.2d 330, 333 (Ct.App.1997); State v. Freeman, 110 Idaho 117, 121, 714 P.2d 86, 90 (Ct.App.1986). Even when the motion is presented before sentencing, if it occurs after the defendant has learned the content of the presentence report or has received other information about the probable sentence, the court may temper its liberality by weighing the defendant's apparent motive. State v. Johnson, 120 Idaho 408, 411, 816 P.2d 364, 367 (Ct.App.1991); State v. Hocker, 115 Idaho 137, 139, 765 P.2d 162, 164 (Ct.App.1988). A defendant's failure to present and support a plausible reason will dictate against granting withdrawal, even absent prejudice to the prosecution. Dopp, 124 Idaho at 516, 861 P.2d at 86; State v. Rodriguez, 118 Idaho 957, 959, 801 P.2d 1308, 1310 (Ct.App.1990).

In order to be valid, a guilty plea must be voluntary, and voluntariness requires that the defendant understand the nature of the charges to which he is pleading guilty. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Dopp, 124 Idaho 481, 484, 861 P.2d 51, 54 (1993); State v. Mauro, 121 Idaho 178, 180, 824 P.2d 109, 111 (1991); State v. Carrasco, 117 Idaho 295, 298, 787 P.2d 281, 284 (1990). Mayer contends that the United States Supreme Court decision in Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), supports his contention that his plea must be deemed involuntary because the penetration element of rape was not explained to him. In Morgan, the Supreme Court held a mentally retarded defendant's guilty plea to second degree murder was invalid because the defendant entered the plea without having been informed or having understood that an intent to cause the victim's death was an element of the offense. The Court deemed the plea involuntary...