State v. Rouse

• Decision Date: 03 June 1980
• Docket Number: No. 43014,43014
• Citation: 293 N.W.2d 83,206 Neb. 371
• Parties: STATE of Nebraska, Appellee, v. Jessee Travis ROUSE, Appellant.
• Court: Nebraska Supreme Court

Page 83

293 N.W.2d 83

206 Neb. 371

STATE of Nebraska, Appellee, v. Jessee Travis ROUSE, Appellant.

No. 43014.

Supreme Court of Nebraska.

June 3, 1980.

Syllabus by the Court

1. Guilty Pleas. A defendant should not be permitted to withdraw a plea of guilty or nolo contendere absent proof that such withdrawal is necessary to correct a manifest injustice.

2. Guilty Pleas: Appeal and Error: Criminal Appeals. The standards to be followed by trial judges before accepting a guilty plea are not per se rules, with which the failure to technically comply will mandate an automatic reversal.

3. Post Conviction Act: Appeal and Error: Criminal Appeals. A motion to vacate a judgment and sentence under the post conviction act cannot be used as a substitute for an appeal or to secure a review of issues already litigated.

4. Post Conviction Act. Relief under the post conviction act is limited to cases in which there was a denial or infringement of a prisoner's rights such as to render the judgment void or voidable under the Constitution of Nebraska or of the United States.

5. Indeterminate Sentences: Sentences. An indeterminate sentence imposed for a crime, where not authorized by statute, is erroneous but not void.

6. Indeterminate Sentences: Sentences. An indeterminate sentence not authorized under the circumstances may still be a valid sentence for the maximum term included therein.

7. Post Conviction Act: Criminal Appeals: Appeal and Error. By failing to challenge the indeterminateness of a sentence directly in an appeal, a defendant has waived the right to contest it in a post conviction review.

Jessee Travis Rouse, pro se.

Paul L. Douglas, Atty. Gen. and Mel Kammerlohr, Asst. Atty. Gen., for appellee.

Heard before KRIVOSHA, C. J., BOSLAUGH, McCOWN, BRODKEY, WHITE, and HASTINGS, JJ., and COLWELL, District Judge.

HASTINGS, Justice.

Defendant has submitted a brief pro se appealing from an order of the District Court for Garden County, Nebraska, denying his motion for post conviction relief. We affirm.

On December 11, 1972, while represented by counsel, defendant pleaded guilty to an amended information charging him with second degree murder. The District Court accepted the defendant's plea and sentenced him to imprisonment in the Nebraska Penal and Correctional Complex for a term of not less than 16 nor more than 20 years. Although failing to specifically assign any errors in his brief, defendant does argue (1) That his rights to due process and equal protection were violated when the trial court accepted his plea of guilty and entered judgment thereon without advising the defendant of the statutory minimum and maximum penalties for second degree murder, and (2) That the provisions of Neb.Rev.Stat. § 83-1,105 (Cum. Supp. 1972) as to indeterminate sentencing did not apply to a sentence for second degree murder under the provisions of Neb.Rev.Stat. § 28-402 (Reissue 1975).

The plea of guilty to the second degree murder charge was the result of a plea bargain arrangement between defendant's counsel and the county attorney of Garden County. Defendant had originally been charged with six felony counts: first degree murder, felony murder, three counts of burglary, and one count of escape. The charges were the result of a series of incidents which occurred on April 8, 1971, in Oshkosh, Nebraska, when three establishments were burglarized and a police officer, Richard Vandermate, was shot and killed. The defendant had originally pleaded not guilty and not guilty by reason of insanity to all six charges.

During the arraignment proceedings on the amended information, Judge Kuns, the trial judge, questioned the defendant about his understanding of the consequences of a guilty plea and the voluntariness of the same. The defendant answered that he understood that, in return for the guilty plea he would enter to the second degree murder charge, the State would drop all the other charges, including that of first degree murder. He also said that he understood that, while he was in custody pending trial, the death penalty for first degree murder had been declared unconstitutional. The following colloquy then took place between the court and the defendant:

Q. And that as a part of the arrangement, that each side would ask the Court to fix the eventual sentence at a certain limit?

A. It is.

Q. And was it your understanding that the agreements made between your attorneys and the prosecuting attorneys were not binding on the Court and that the Court did not participate in the conferences?

A. Yes, sir.

Q. But that the Court would consider the recommendations?

A. Yes, sir.

Two letters exchanged between prosecution and defense counsels with regard to the plea agreement were made a part of the record. Judge Kuns asked the defendant whether he had seen the letters before and the defendant replied that he had seen copies of them.

THE COURT: I see. And they reflect correctly the matters which your attorneys have discussed with you before this hearing was held?

THE DEFENDANT: Yes, sir.

THE COURT: And you approve of the statements and arrangements that they have made on your behalf?

THE DEFENDANT: Yes, sir.

The letters outline the arrangement and state that the prosecution would not ask the court for a sentence of more than 20 years and would not oppose a sentence as low as 16 years upon recommendation of defense counsel.

The court took great care to ask the defendant whether he was aware that, by pleading guilty, he was giving up the right to a jury trial and the right of confrontation, and to assure that he understood the burden of proof that would have to be met by the prosecution in a jury trial. The court questioned the defendant about his education and learned he had 11 1/2 years of schooling, that he could read and write, and that at one time he was a representative of Garden County at a national conference on crime and delinquency. An adequate factual basis supporting the plea of guilty was also established.

The defendant's first assignment of error is that the court did not inform him of the statutory minimum and maximum sentences for second degree murder, which are 10 years and life. The defendant relies on State v. Turner, 186 Neb. 424, 183 N.W.2d 763 (1971), in which we adopted the ABA Standards Relating to Pleas of Guilty (1968 Approved Draft) as the minimum procedure in the taking of such pleas. He argues that, unless the court has informed the defendant of the statutory penalty, the defendant could not have made a voluntary and intelligent decision to plead guilty to the charge.

Reliance is also placed on State v. Curnyn, 202 Neb. 135, 140, 274 N.W.2d 157, 161 (1979), in which we stated: "It is difficult to conceive how a guilty plea can be voluntary and intelligent unless and until the defendant is informed or is made aware of the possible penalties to which he may be subjected by making such a plea."

It should be noted that the constitutional requirement is that the plea be voluntary and intelligent and that the determination of that fact be reliably established. State v. Lewis, 192 Neb. 518, 222 N.W.2d 815 (1974). The criterion is whether or not the defendant understands the relevant factors involved in pleading guilty. We have stated that, before accepting such a plea, the judge is expected to sufficiently examine the defendant to determine whether he understands the nature of the charge, the possible penalty, and the effect of his plea. State v. Turner, supra.

The standards recommend that a defendant be allowed to withdraw his plea of guilty or nolo contendere upon timely motion if he proves that withdrawal is necessary to correct a manifest injustice. . . . In the absence of proof by the defendant of such manifest injustice, the defendant should not be permitted to withdraw her plea.

State v. Lewis at 522, 222 N.W.2d at 818.

The standards we recommend for trial judges to follow before accepting a guilty plea are not per se rules, with which the failure to technically comply would mandate an automatic reversal. If it can be determined that the defendant understood the nature of the charge, the possible penalty, and the effect of his plea, then there is no manifest injustice that would require that the defendant be permitted to withdraw his plea. By so holding, we follow the lead of the U.S. Supreme Court. In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the court held it was plain error for the trial judge to accept petitioner's guilty plea without an affirmative showing that it was intelligent and voluntary.

What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence.

Id. at 243-44, 89 S.Ct. at 1712.

The voluntariness of a plea can be determined only by considering all the relevant circumstances surrounding it.

The standard as to the voluntariness of guilty pleas must be essentially that defined by Judge Tuttle of the Court of Appeals for the Fifth Circuit:

" '(A) plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e. g. bribes).' (Shelton v. United States ) 242 F.2d (101) at page 115."

Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970).

The U.S. Supreme Court more recently had the opportunity to rule upon the issue of whether a conviction based on a guilty plea is subject to collateral attack whenever it can be shown that F.R.Crim.P. 11 was violated when...