State v. Smith, 58933

• Decision Date: 30 July 1976
• Docket Number: No. 58933,58933
• Citation: 244 N.W.2d 325
• Court: Iowa Supreme Court
• Parties: STATE of Iowa, Appellee, v. Thomas Shawn SMITH, Appellant.

Page 325

244 N.W.2d 325

STATE of Iowa, Appellee, v. Thomas Shawn SMITH, Appellant.

No. 58933.

Supreme Court of Iowa.

July 30, 1976.

Bertroche, Barnes & Hagen, Indianola, for appellant.

Richard C. Turner, Atty. Gen., Raymond W. Sullins, Asst. Atty. Gen., Des Moines and John W. Criswell, County Atty., Indianola, for appellee.

Submitted to MOORE, C.J., and LeGRAND, REES, UHLENHOPP and REYNOLDSON, JJ.

REES, Justice.

Defendant appeals from judgment imposing sentence upon his plea of guilty to the crime of receiving and concealing stolen property having a value greater than $20 in violation of § 712.1, The Code, 1975. We find no error and affirm.

Defendant was initially charged by county attorney's information with the crime of burglary in violation of § 708.1, The Code, 1975. The information and minutes of testimony thereto attached reflect the allegations that defendant and one Thomas Allen Johnson broke into a residence in the town of Milo about 2 A.M. on July 10, 1975, and took therefrom several items including a clock-radio and some personalized checks. At his initial arraignment on July 31, defendant entered a plea of not guilty.

On October 14, defendant in open court requested permission of the court to withdraw his plea of not guilty and to enter a plea of guilty to a substituted and amended charge of receiving and concealing stolen property in violation of § 712.1, The Code, 1975. In open court on said date, the county attorney indicated that the defendant's plea of guilty to the amended or reduced charge was the result of plea negotiations and that it was understood the State would make no recommendation to the court regarding the sentence to be imposed if the court accepted defendant's guilty plea to the amended charge. The trial court did so accept the defendant's plea of guilty and ordered that a presentence investigation be conducted. On November 17, 1975, defendant was sentenced to serve a term of not to exceed five years at the Men's Reformatory, and in conjunction with the imposition of sentence, the court incorporated in the record its recommendation that defendant be examined and treated at the Iowa State Medical Facility for any psychiatric problems he might have.

Defendant urges this court to adopt the American Bar Association Standards of Appellate Review of Sentences and to abandon the present 'abuse of discretion' rule. In the alternative, he contends the trial court abused its discretion in imposing the maximum statutorily authorized sentence for the crime charged and to which defendant had pleaded guilty.

I. Thrice in less than a year a majority of this court has declined requests of appellants to adopt the A.B.A. Standards of Appellate Review of Sentences. See State v. Dittmar, 239 N.W.2d 545, 546 (Iowa 1976); State v. Peckenschneider, 236 N.W.2d 344, 346--348 (Iowa 1975); State v. Horton, 231 N.W.2d 36, 39 (Iowa 1975). We continue to adhere to the views articulated in the cases cited and decline to adopt the standards for appellate review as requested by defendant.

Ii. Alternatively, defendant asserts trial court abused its discretion in sentencing him to a term of imprisonment of not to exceed five years. There are two thrusts to his attack on the sentence.

Primarily, he contends trial court should have asked him whether he had an understanding as to what the sentence would be and whether any 'prediction' had been made to him concerning the sentence, and that the court should have told him it was not bound by any such understanding or prediction. Defendant relies on our decision in Brainard v. State, 222 N.W.2d 711, 722 (Iowa 1974).

That part of the Brainard opinion upon which defendant relies is, in effect, an outline or checklist recommended by a majority of this court as being helpful for use in receiving pleas of guilty. Nowhere in Brainard was it indicated that the failure of a trial court to advise a defendant in the particulars complained of by the defendant in this case would render invalid an otherwise adequate guilty plea. We did say in Brainard and in State v. Sisco, 169 N.W.2d 542, 545--548 (Iowa 1969), that a trial judge must establish of record that a defendant is aware of the possible maximum punishment any mandatory minimum punishment and any enhanced punishment for the offense charged. The record indicates this was established in the instant case and defendant does not contend otherwise.

The record also indicates the county attorney in the presence of defendant and his counsel informed the court of the existence of plea negotiations and of the resulting agreement by the State not to make a sentencing recommendation in the event defendant pleaded...