State v. Mehuys, 53254

• Decision Date: 12 November 1969
• Docket Number: No. 53254,53254
• Citation: 172 N.W.2d 131
• Parties: STATE of Iowa, Appellee, v. Richard Francis MEHUYS, Appellant.
• Court: Iowa Supreme Court

Page 131

172 N.W.2d 131

STATE of Iowa, Appellee, v. Richard Francis MEHUYS, Appellant.

No. 53254.

Supreme Court of Iowa.

Nov. 12, 1969.

Rehearing Denied Jan. 12, 1970.

Morton A. Teitle, Davenport, for appellant.

Richard C. Turner, Atty. Gen., James C. Sell, Asst. County Atty., and Edward N. Wehr, County Atty., for appellee.

MASON, Justice.

Richard Francis Mehuys was charged by county attorney's information with robbery with aggravation contrary to section 711.2, Code, 1966. Following his plea of guilty to the included offense of robbery defendant was sentenced by the Scott County district court to the state penitentiary for a term not to exceed ten years. Code section 711.3. This section does not provide any other penalty for robbery.

Defendant's appeal presents the question whether his constitutional rights were protected.

Defendant was out on bond and had had opportunity to secure counsel before arraignment. It does not appear from the record whether counsel was court appointed of privately retained.

July 9, 1968, at arraignment when called upon to plead defendant entered a plea of not guilty to the charge in the information and his counsel asked time in which to prepare for trial. The court granted continuance and ordered defendant be released on bond in amount of his previous bond.

November 26 defendant appeared with counsel and tendered a plea of guilty to robbery. The court asked for a pre-sentence report and deferred sentence until December 26. That date defendant and his counsel appeared and sentence was imposed. A verbatim record of the proceedings had July 9, November 26 and December 26 was made and preserved. The record of those proceedings constitutes the record on appeal.

In his first assignment of error, defendant contends he was not offered his right of allocution under Code section 789.6 which provides:

'When the defendant appears for judgment, he must be informed by the court, or the clerk under its direction, of the nature of the indictment, his plea, and the verdict, if any, thereon, and be asked whether he has any legal cause to show why judgment should not be pronounced against him.'

In his other assignment of error defendant asserts the court erred in failing to advise him of the consequences of his guilty plea. We consider defendant's contentions together.

I. A determination that the plea be knowing, voluntary and accurate is a fundamental objective of the pleading processes.

'The formal requisites for a plea of guilty in this state are set out at section 777.12, Code, 1966. In connection therewith this court has said in State v. Kellison, 232 Iowa 9, 14, 4 N.W.2d 239: 'In the first place, such a plea must be entirely voluntary and not induced by fear, by misrepresentation, by persuasion, by the holding out of false hopes, nor made through inadvertence or by ignorance, 22 C.J.S. Criminal Law § 423 (p. 653). And the court should satisfy itself of the voluntary character of the plea before accepting it, especially where accused is not represented by counsel and is young and inexperienced or obviously lacking in intelligence or knowledge of our spoken language. 22 C.J.S. Criminal Law § 423 (p. 653). " State v. Kulish, 260 Iowa 138, 143, 148 N.W.2d 428, 432.

The foregoing is quoted with approval in State v. Lampson, 260 Iowa 806, 815--816, 149 N.W.2d 116, 121 and State v. Sisco, Iowa, 169 N.W.2d 542, 547.

Before entering judgment on the plea the court by addressing defendant personally proceeded to satisfy itself there was factual basis for the tendered plea and ensure defendant did in fact understand his right to a jury trial and by pleading guilty defendant was relinquishing this right.

We set out the record of the November 26 proceedings:

'MR. CLARK O. FILSETH: I believe the record shows we entered a plea of not guilty. And at this time you want to withdraw your plea of not guilty? MR. MEHUYS: That's right.

'MR. FILSETH: And enter your plea of guilty to the included offense of Robbery? MR. MEHUYS: Yes, sir.

'THE COURT: How old are you? MR. MEHUYS: Thirty-four, sir.

'THE COURT: And how far did you get in school? MR. MEHUYS: Eleventh grade.

'THE COURT: Do you understand what a plea of guilty means? MR. MEHUYS: Yes, sir.

'THE COURT: What does it mean? MR. MEHUYS: It means I'm pleading guilty to the charge I've been charged with.

'THE COURT: You're pleading guilty to the included offense of Robbery. Do you understand that? MR. MEHUYS: Yes, sir.

'THE COURT: And what does Robbery mean, in your estimation? What do you understand it to mean? MR. MEHUYS: Well, I just went out and robbed a person, I guess.

'THE COURT: And you admit that? MR. MEHUYS: Yes, sir.

'THE COURT: And plead guilty to it? MR. MEHUYS: Yes, sir.

'THE COURT: And you understand you have a right to a trial by jury if you so desire? MR. MEHUYS: Yes, sir.

'THE COURT: And that's been explained to you by your attorney? MR. MEHUYS: Yes, sir.

'THE COURT: And you're satisfied with your attorney? MR. MEHUYS: Yes, sir.

'THE COURT: He has given you good representation? MR. MEHUYS: Yes, he has.

'THE COURT: And you understand once you enter a plea of guilty and the judgment is entered you can't withdraw your plea? MR. MEHUYS: I understand.

'THE COURT: Now, there have been no promises made or rewards offered for you to plead guilty, have there? MR. MEHUYS: No, sir.

'THE COURT: Nobody has forced you into this? MR. MEHUYS: No, sir.

'THE COURT: Or talked you into this? MR. MEHUYS: No, sir.

'THE COURT: It's upon your own voluntary act and deed, is that correct' MR. MEHUYS: Yes, sir.

'THE COURT: How old are you? MR. MEHUYS: Thirty-four, sir.

'THE COURT: Have you ever been in trouble before? MR. MEHUYS: Yes, I have, sir.

'THE COURT: And so you know what this is all about? MR. MEHUYS: Yes, sir.

'THE COURT: All right. We'll defer sentence on you and I'll get a pre-sentence investigation.

'MR. BERGER: Yes. And do you want to set the date, your Honor? THE COURT: Well, I understand the Defendant has a family here. He'd like to spend Christmas with them. We'll sentence him the 26th, after Christmas.

'MR. BERGER: That will be the 26th of December? THE COURT: At 10:00 o'clock. I would like to have the report by then.'

We are satisfied there was adequate opportunity between July 9 and November 26 for defendant's counsel to engage in plea discussions with the prosecution from the fact that at the second court appearance defendant tendered a guilty plea to robbery which carries a penalty of ten years as compared to a penalty of twenty-five years for conviction of robbery with aggravation.

The interval provided ample time necessary for investigation of law and facts and for client-counsel discussions as to what plea would be in the client's best interest.

The court did not pronounce sentence on defendant's plea until December 26. Defendant had then had thirty days to deliberate following the date he received advice from the court informing him that by his guilty plea he waived a right to a trial by jury.

As shown by the record of the December 26 proceeding the court again addressed defendant personally to determine whether defendant wished to reaffirm his plea tendered thirty days earlier and to make certain defendant had not been inaccurately informed or had not made unjustified assumptions on the basis of information given him earlier.

The Advisory Committee on the Criminal Trial indicates this is the function of the judicial caution set forth in section 1.4 where, as here, defendant has counsel. This section is set out in full in State v. Sisco, supra, Iowa, 169 N.W.2d at 547.

The record of proceedings had at the sentencing stage follows:

'THE COURT: The Defendant come up here, please. Will you bring the Defendant up here? MR. FILSETH: Yes. Come on, Dick.

'THE COURT: Now, as I understand it, he's pleaded guilty to robbery without aggravation. MR. FILSETH: Yes, your Honor.

'THE COURT: Is that your understanding? MR. TRAW: Yes, your Honor.

'THE COURT: Now, as I understand it, you've pleaded guilty to this charge? MR. MEHUYS: Yes, sir.

'THE COURT: And at the time you pleaded guilty, we advised you of your rights? You had a right to a trial by jury. MR. MEHUYS: Yes, sir.

'THE COURT: And you said you wanted to plead guilty--MR. MEHUYS: Yes, sir.

'THE COURT:--in spite of that. and you Understand you're now pleading guilty to robbery without aggravation? MR. MEHUYS: Yes, sir.

'THE COURT: And the sentence on that is five years in the penitentiary. You understand that? MR. MEHUYS: Yes, your Honor.

'THE COURT: Isn't that right, Mr.--It's five years? MR. TRAW: Isn't it ten years?

'THE COURT: Is it ten? Will you get the Code? Ten years. It's ten years, that's right. It's twenty-five years with aggravation. Now, you understand I'm not going to give you a parole because of your record? MR. MEHUYS: Yes, sir.

'THE COURT: So it'll be the judgment of the Court you be sentenced to a period not to exceed ten years in Fort Madison. And I wish to advise you further that if you wish to appeal this sentence, you must serve a sixty day notice on the County Attorney's office. If you fail to do that, of course you lose your right to appeal. If you want to know anything further about that, your attorney can advise you. And the appeal bond is set at $5,000.00.'

It is true the court did not ask defendant whether he had any legal cause to show why judgment should not be pronounced against him. However, when the court asked defendant if he understood he was not going to be given a parole because of his previous record it informed him of sentence to be imposed and again inquired if he understood. Defendant's only answer was, 'Yes, sir.'

The purpose of the inquiries November 26 and December 26 was to make sure defendant's plea of guilty was entered voluntarily with ful knowledge and understanding. The purpose of the statute--to elicit facts which would constitute reason for withholding sentence--was accomplished by the...