State v. Meyers

• Decision Date: 09 June 1964
• Docket Number: No. 51188,51188
• Citation: 256 Iowa 801,129 N.W.2d 88
• Parties: STATE of lowa, Appellee, v. Orrie Lester MEYERS, Appellant.
• Court: Iowa Supreme Court

Page 88

129 N.W.2d 88

256 Iowa 801

STATE of lowa, Appellee, v. Orrie Lester MEYERS, Appellant.

No. 51188.

Supreme Court of Iowa.

June 9, 1964.

David D. Mitchell, Cedar Rapids, for appellant.

Evan Hultman, Atty. Gen., Iowa, John H. Allen, Asst. Atty. Gen., and Jack M. Fulton, County Atty., Cedar Rapids, for appellee.

LARSON, Justice.

On February 19, 1963, a county attorney's information was filed in the office of the Clerk of the District Court in Linn County, Iowa, charging the appellant Orrie Lester Meyers with the crime of incest, in violation of Section 704.1, 1962 Code of Iowa, I.C.A. He was arraigned before the court February 20, 1963, an attorney was appointed for him, and he was given until February 26th to plead. On the 26th day of February, 1963, the defendant appeared in court with his attorney and entered a plea of not guilty. On May 20, 1963, he again appeared and offered to plead guilty to the crime of assault with intent to commit rape. Section 698.4, Code of 1962, I.C.A. This plea was accepted by the court and he was sentenced to a term of imprisonment not to exceed fifteen years in the Iowa State Penitentiary at Fort Madison, Iowa. The charge of incest was then dismissed and appeal bond set at $4,000.00.

On September 26, 1963, appellant asked for and received a different court-appointed attorney to prosecute this appeal. The issues he raises are (1) that the court erred in failing to make a record of the voluntary nature of the plea, and (2) that it erred in finding that the crime of assault with intent to commit rape is an included offense to the crime of incest. Underlying these contentions is the thought that he did not receive a fair trial. We find no merit in the first contention and no reversible error in the second.

I. The record before us supplemented by the transcript is brief, and shows nothing that would even infer that appellant's plea of guilty was not voluntary. The record is based entirely upon the calendar sheet entries of various judges of the district. There was no request by either party that the proceedings be transcribed. Appellant does not now contend such a request was made. There is no showing of any irregularity in the proceedings. No undue influence, misrepresentation, fear, or intimidation is claimed, and appellant makes no charge that he was not represented by able and effective counsel. Under the state of this record, regularity and not irregularity is presumed. The rule is well established in this jurisdiction that we presume the regularity of actions by officials and courts unless the contrary is made to appear. State v. Bastedo, 253 Iowa 103, 110, 111 N.W.2d 255, and citations; Sewell v. Lainson, 244 Iowa 555, 560, 57 N.W.2d 556. We must assume the court determined that defendant's plea was made freely and without undue influence, as nothing else remained to be determined. People v. Grillo, 319 Mich. 586, 588, 30 N.W.2d 284, 285. Here appellant appeared in open court with able counsel for the purpose of entering a plea of guilty to a crime which was at least related to the one charged in the original information. Finding no error in the court's failure to make a record of the voluntary nature of the plea, and no showing which would justify granting appellant a new trial on that ground, we hold the first assignment is without merit.

II. Appellant's second contention raises an intersting question. The calendar entry of the court on May 20, 1963, states: 'The defendant appeared in open court in person and with his counsel, Harold Vietor, enters his plea of guilty to the crime of assault with intent to commit rape, as an included offense, and asks for immediate sentence. * * * The charge of incest against the defendant is dismissed.' He contends assault with intent to commit rape is not an included offense in incest, and with this contention we are inclined to agree. State v. McCall, 245 Iowa 991, 63 N.W.2d 874.

The crimes of incest and assault with intent to commit rape are different offenses, are found in different chapters of the code, and involve different elements. They are, however, related offenses, both being sex crimes, and under the minutes attached to the information before us either charge would find ample support. Incest was the crime duly charged in the information before the court when appellant appeared in court on May 20th.

In State v. Jones, 233 Iowa 843, 847, 10 N.W.2d 526, 528, we considered the question of included offenses in a charge of incest, and came to the conclusion there was no such offense in Iowa as assault with the intent to commit incest. There is no such statutory offense, and certainly the rule is clear that to be an included offense two factors must combine: (1) the so-called included offense must be necessarily included in the offense charged, and (2) there must be evidence which would sustain a finding of the included charge. State v. McCall, supra. While the holding in State v. McCall would support appellant's contention that assault with intent to commit rape is not an included offense in the crime of incest, the acceptance of the assault plea would not necessarily void the court's judgment and sentence. The jurisdiction of the court in this matter was not affected.

III. A judgment of conviction upon a voluntary plea of guilty to a crime for which one was not indicted is not necessarily void. 24 C.J.S. Criminal Law § 1563(1), page 402; People ex rel. Wachowicz v. Martin, 293 N.Y. 361, 366, 367, 57 N.E.2d 53, 55, 56, 154 A.L.R. 1128; People v. Gillespie, 185 Misc. 841, 60 N.Y.S.2d 889; Ex parte Carlson, 176 Wis. 538 186 N.W. 722, and citations. It is stated in 24 C.J.S. Criminal Law § 1563(1), that 'where an accused person deliberately pleads guilty to a specific crime which is related to, although not included in, the crime charged in the indictment, a valid judgment may be entered on such plea.' In the Wachowicz case it was pointed out that a judgment entered upon an erroneous determination of a question of law by a court of competent jurisdiction is not a nullity and cannot be successfully attacked on that ground in habeas corpus.

In the New York case of People v. Gillespie, supra, like the case at bar, it appears defendant was charged in an indictment with the crime of burglary in the third degree and with unlawful entry. He first entered a plea of not guilty, and a week or so later withdrew that plea and entered a plea of guilty to the crime of grand larceny in the second degree. The court rendered judgment of conviction and sentenced appellant to a term of five to ten years. Although the prisoner had not been represented by counsel 'but was fully advised', the court held he was confined under a judgment which was not a nullity and, as it did not appear the judgment was obtained by trickery, deceit, coercion or fraud, the judgment entered upon a voluntary plea of guilty by him was valid and the defendant was properly confined thereunder.

So here the court's error, if it was error,...