State v. Simons, 15806

CourtCourt of Appeals of Idaho
Citation731 P.2d 797,112 Idaho 254
Docket NumberNo. 15806,15806
PartiesSTATE of Idaho, Plaintiff-Respondent, v. Verna L. SIMONS, Defendant-Appellant.
Decision Date14 January 1987

Kenneth F. White, Nampa, for defendant-appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., and Myrna A.I. Stahman, Deputy Atty. Gen., Boise, for plaintiff-respondent.

WALTERS, Chief Judge.

Verna Simons pled guilty to involuntary manslaughter. She was sentenced to the custody of the board of correction for an indeterminate ten-year period. On appeal, she raises two issues: (1) whether the district court abused its discretion in denying Simons' postsentence motion to withdraw her plea; and (2) whether the ten-year indeterminate sentence was an abuse of the court's sentencing discretion. We hold that the district court did not abuse its discretion in either respect. We affirm.

On an evening in January, 1984, Verna Simons left the house she shared with J.D. Jameson to drive to Caldwell, Idaho, about eight miles away. She sought the shelter of her parents' home in Caldwell because of mistreatment of her by Jameson. Apparently, Jameson approached Simons' automobile as she was preparing to leave and attempted to dissuade her. Simons locked the doors and drove away. Unfortunately, Jameson's hand became caught in the passenger door between the window and frame. He was dragged to his death. Simons contends she was not aware that the victim was attached to her vehicle until she was stopped by police in Caldwell.

Simons was charged initially with second degree murder. See I.C. § 18-4001. Pursuant to a plea agreement, Simons pled guilty to involuntary manslaughter--the unlawful killing of a human being, without malice, in perpetration of an unlawful act, or in the commission of a lawful act without due caution and circumspection. See I.C. § 18-4006(2). In Idaho, involuntary manslaughter carries a maximum penalty of a $10,000 fine and imprisonment for ten years. I.C. § 18-4007(2). 1 Following an extended sentencing hearing before District Judge Williams, Simons received an indeterminate ten-year sentence.

During the sentencing hearing, defense counsel became aware of additional evidence relating to Simons' mental and physical condition immediately following the accident. After the sentence was pronounced, Simons filed a notice of appeal. While her appeal was pending, Simons moved to withdraw her plea pursuant to I.C.R. 33(c). The motion was heard by District Judge Doolittle. Judge Doolittle found that the necessary manifest injustice required by I.C.R. 33(c) had not been shown and denied the motion. Thus, we are asked to review both the sentence and the denial of the postsentence motion to withdraw Simons' plea.


We first review Judge Doolittle's decision denying Simons' motion to withdraw her plea. We begin by acknowledging the following principles relative to pleas of guilty and motions to withdraw such pleas.


A plea of guilty has the same force and effect as a judgment rendered after a full trial on the merits. Lockard v. State, 92 Idaho 813, 451 P.2d 1014 (1969). Like the verdict of a jury it is conclusive as to the facts. The court is left with "nothing to do but give judgment and sentence." Id. at 818, 451 P.2d at 1019, quoting Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). Idaho Criminal Rule 33(c) reads: "A motion to withdraw a plea of guilty may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea." Our neighboring state of Washington describes "manifest injustice," for purposes of its comparable rule, as an injustice that is obvious, directly observable, overt, and not obscure. State v. Norval, 35 Wash.App. 775, 669 P.2d 1264 (1983). Denial of due process was deemed manifest injustice as a matter of law under the former comparable Federal Rule of Criminal Procedure 32(d). United States v. Crusco, 536 F.2d 21 (3d Cir.1976).

Under Rule 33(c) a stricter standard is applied following sentencing to insure that the accused does not plead guilty merely to test the weight of potential punishment and then to withdraw the plea if the sentence is unexpectedly severe. State v. Freeman, 110 Idaho 117, 714 P.2d 86 (Ct.App.1986); State v. Jackson, 96 Idaho 584, 532 P.2d 926 (1975). A lesser standard would undermine respect for the courts and waste the time and effort devoted to the sentencing process. Kadwell v. United States, 315 F.2d 667 (9th Cir.1963).

A motion to withdraw a guilty plea is addressed to the sound discretion of the trial court. State v. Creech, 109 Idaho 592, 710 P.2d 502 (1985); State v. Freeman, supra. Appellate review of the denial of a motion to withdraw a plea is limited to whether the district court exercised sound judicial discretion as distinguished from arbitrary action. State v. Freeman, supra. Ordinarily a plea knowingly, intelligently and voluntarily entered may not be withdrawn after sentencing. We look to the whole record to determine whether it is manifestly unjust to preclude the defendant from withdrawing a guilty plea. State v. Creech, supra.

According to § 2.1(a)(ii) of the ABA STANDARDS RELATING TO PLEAS OF GUILTY (1968):

Withdrawal is necessary to correct a manifest injustice whenever the defendant proves that:

(1) he was denied the effective assistance of counsel guaranteed to him by constitution, statute, or rule;

(2) the plea was not entered or ratified by the defendant or a person authorized to so act in his behalf;

(3) the plea was involuntary, or was entered without knowledge of the charge or that the sentence actually imposed could be imposed;

(4) he did not receive the charge or sentence concessions contemplated by the plea agreement and the prosecuting attorney failed to seek or not to oppose these concessions as promised in the plea agreement; or

(5) he did not receive the charge or sentence concessions contemplated by the plea agreement concurred in by the court, and he did not affirm his plea after being advised that the court no longer concurred and being called upon to either affirm or withdraw his plea.

A plea may be withdrawn without an allegation that the defendant is innocent of the charge to which the plea was entered. Id. See also C. WHITEHEAD, CRIMINAL PROCEDURE: AN ANALYSIS OF CONSTITUTIONAL CASES AND CONCEPTS § 21.04 (1980) (discussing the ABA STANDARDS).


We now turn to the application of the foregoing principles to Simons' case. The jail matron who attended to Simons immediately following her arrest had knowledge that Simons was severely disoriented upon initial incarceration. In addition, she was prepared to testify that Simons exhibited physical symptoms of injuries that might have been recently inflicted. The state did not provide this information to Simons or to her counsel. In response to defense inquiries, the jailer indicated that all relevant information was contained in her written report. The report did not contain this information. Her knowledge was not otherwise made available to the defense. During the sentencing hearing, the jailer independently contacted Simons' counsel and revealed this information. However, Simons did not then seek to withdraw her plea. She waited until the sentence had been determined.

Simons argues that this evidence of her mental and physical condition--"discovered" following her plea of guilty--was material to her second-degree murder defense. Had she been aware of this information, she contends she would have had a stronger case and, therefore, would not have pled guilty to the lesser offense of involuntary manslaughter. Specifically Simons argues that this information was material to her claim that she was fleeing from Jameson in fear of bodily harm or death; that it supports her claim that she was not aware Jameson was attached to the vehicle; that it would have been of assistance to her counsel in their investigation; and, that it could have been used to explain her original, disjointed account of the events surrounding Jameson's death.

Simons contends that constitutional due process imposes a duty upon the state to provide such exculpatory evidence to the defense. Therefore, she seeks to withdraw her plea as one not knowingly or intelligently entered, but entered due to the coercion and deception of the prosecution. Alternatively, she contends that the unavailability of this evidence rendered her counsel ineffective and inadequate because counsel could not competently evaluate her case.

Simons points to her discovery request under Idaho Criminal Rule 16(b), filed with the court before she pled guilty, seeking:

All statements, documents, and tangible items relating to the booking in and/or incarceration of the Defendant at the Canyon County Jail, including but not limited to booking sheets, photographs, mug shots, attorney logs, visitors logs, security checks, medications, dispatch logs, tape recordings, any and all progress notes, reports and/or documents relating to or referring in any way to the Defendant.

1. The Prosecutor's duty to disclose.

The state argues that Simons' discovery request did not cover the particular information at issue here. The state contends that the jailer's personal knowledge does not fall within "statements, documents, and tangible items." We agree. This request related to tangible items in the prosecutor's possession. The knowledge of possible defense witnesses or similar intangible exculpatory information was apparently not specifically requested. Thus I.C.R. 16(b) is not applicable. Nor was the jailer a potential prosecution witness. Thus the state was not required to include her name on its witness list. See I.C.R. 16(b)(6). However, this conclusion does not end our inquiry.

The state has a duty to provide all exculpatory or possibly...

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