State v. Turner
| Decision Date | 11 February 1971 |
| Docket Number | No. 37641,37641 |
| Citation | 186 Neb. 424,183 N.W.2d 763 |
| Parties | STATE of Nebraska, Appellee, v. Arthur TURNER, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. A plea of guilty must not only be intelligent and voluntary to be valid but the record must affirmatively disclose that the defendant entered his plea understandingly and voluntarily.
2. The Standards Relating to Pleas of Guilty promulgated by the American Bar Association outline what should be the minimum procedure in the taking of pleas of guilty.
A. Q. Wolf, Public Defender, Bennett G. Hornstein, Asst. Public Defender, Omaha, for appellant.
Clarence A. H. Meyer, Atty. Gen., Ralph H. Gillan, Asst. Atty. Gen., Lincoln, for appellee.
Heard before CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN and NEWTON, JJ.
This is an appeal from a judgment and sentence of 3 to 5 years in the Nebraska Penal and Correctional Complex on a guilty plea to the charge of uttering a forged instrument on the premise that the record fails to affirmatively show defendant pled guilty voluntarily, understandingly, and intelligently and with full knowledge of the rights he was waiving by his plea. We affirm.
Defendant appeared in district court with his attorney, a member of the staff of the Douglas County public defender's office, and on request was granted leave to withdraw his plea of not guilty and thereupon pled guilty. Defendant is represented in this appeal by another member of the Douglas County public defender's staff.
Essentially, defendant relies on Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274. Defendant contends that Boykin requires an affirmative showing in the record that the trial court advised him of his privilege against compulsory self-incrimination as well as his right to confront his accusers before a determination of his waiver of these constitutional guarantees. We do not interpret Boykin so strictly. What Boykin says is that the court cannot presume a waiver of federal constitutional rights from a silent record. That case requires that a plea of guilty must not only be intelligent and voluntary to be valid but the record must affirmatively disclose that the defendant entered his plea understandingly and voluntarily. This the present record shows.
If we understand defendant's argument, in his reliance on Boykin, as well as on McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418, which deals with Rule 11 of the Federal Rules of Criminal Procedure, it is his contention that the trial court must direct a defendant's attention to each and every constitutional right and then obtain a separate expressed verbal waiver of each of them before it can find an intelligent and voluntary waiver. This requirement of an item-by-item review of constitutional rights on a guilty plea is a strained and a too extreme construction of those cases.
A plea of guilty embodies a waiver of every defense to the charge, whether procedural, statutory, or constitutional. The constitutional rights, both state and federal, involved in such waiver include many others in addition to those mentioned above. As was said in Boykin v. Alabama, Supra: 'Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial.' And in McCarthy v. United States, Supra: 'A defendant who enters such a plea simultaneously waives several constitutional rights, * * *.'
The criteria is whether or not the defendant understands the relevant factors involved in a guilty plea. Before accepting a guilty plea a 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. Without specifically detailing the exact procedure to be followed, we state that the Standards Relating to Pleas of Guilty promulgated by the American Bar Association outline what should be the...
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