State v. Warner, 57427
| Decision Date | 21 May 1975 |
| Docket Number | No. 57427,57427 |
| Citation | 229 N.W.2d 776 |
| Parties | STATE of Iowa, Appellee, v. Wayne Lee WARNER, Appellant. |
| Court | Iowa Supreme Court |
Carl W. Schultz, Davenport, for appellant.
Richard C. Turner, Atty. Gen., Edward N. Wehr, County Atty., for appellee.
Considered en banc.
November 5, 1973, a county attorney's information was filed in the Scott district court charging Wayne Lee Warner with attempting to break and enter a storage and transfer company in which goods, merchandise and valuable things were kept for use, sale or deposit with intent to commit a public offense, to wit: larceny, in violation of section 708.10, The Code.
In all proceedings in the trial court defendant was represented by the same counsel. November 20, following arraignment, defendant entered a plea of not guilty. March 27, 1974, defendant's motion for leave to withdraw his plea of not guilty was granted and defendant personally tendered a plea of guilty to the offense charged in the information.
Before accepting the plea the court proceeded to question defendant personally for the purpose of determining if defendant's plea was a voluntary and intelligent plea such as would provide the basis for conviction and support a judgment and sentence and for the purpose of satisfying it that there was a factual basis for such plea, following the guidelines set forth in State v. Sisco, 169 N.W.2d 542, 547--549 (Iowa 1969). The case was continued for sentencing until a presentence investigation requested by the court had been made available. April 26 defendant was sentenced to the Men's Reformatory for not to exceed five years.
Defendant appeals from the judgment imposing sentence challenging the voluntariness of the plea as well as the trial court's imposition of the maximum sentence.
I. Defendant insists the trial court's failure to inquire of the prosecutor or the defense lawyer as to the existence or nonexistence of a plea agreement requires a reversal.
After explaining in detail the charge to defendant the court proceeded:
As stated, defendant's attack on the voluntariness of his guilty plea is predicated on the trial court's failure to inquire of the prosecuting attorney and of the defense counsel whether defendant's tendered plea of guilty was the result of prior plea discussion and a plea agreement, and, if it was, what agreement had been reached. In Sisco this court adopted certain specified Minimum Standards of the American Bar Association for Criminal Justice, Pleas of Guilty. Among those adopted was standard 1.5 which provides:
'1.5 Determining voluntariness of plea.
In Brainard v. State, 222 N.W.2d 711, 721--723 (Iowa 1974), this court detailed some recommended procedures for conducting a guilty plea proceeding. The outline of areas of appropriate inquiry in such proceeding included questions to be asked the prosecuting attorney and defense counsel: '(1) if the plea is a result of prior plea discussions and a plea agreement; (2) if it is, what agreement has been reached.' The opinion also suggests that in making inquiry of defendant he be asked: '(1) if any threats or promises have been made to induce him to plead guilty; (2) if he believes there is any understanding or if any predictions have been made to him concerning the sentence he will receive (advise him the court is not bound by such understanding or predictions).'
It must be conceded the court made no inquiries of the prosecutor or of defense counsel at either the plea stage or the sentencing stage as to the possible existence of any previous plea bargaining. A somewhat similar contention to that made here was unsuccessfully urged as a basis for reversal in State v. Zacek, 190 N.W.2d 415, 416--417 (Iowa 1971); State v. Reppert, 215 N.W.2d 302, 308 (Iowa 1974); and State v. Hansen, 221 N.W.2d 274, 277 (Iowa 1974), which are cited by the parties. However, in Zacek defendant did not at any point maintain there was any agreement to seek sentence concessions which required court approval. In Reppert defendant did not contend there was any evidence or indication his tendered plea was a result of improper plea bargaining. The contention was first made in an affidavit filed more than two years after pronouncement of sentence. In Hansen defendant asserted his guilty plea 'might have been induced by promises or coercion.' The contention was first urged five months after pronouncement of sentence. However, Hansen did not raise the issue of the trial court's failure to determine by inquiry of the county attorney and defense counsel whether the tendered plea was a result of prior plea discussions.
Some three months after the hearing and two months after sentencing Warner filed an affidavit in which he asserted his attorney had in fact promised a two year 'parole' in return for a plea of guilty. This contention is not urged in defendant's opening brief but is referred to for the first time in his reply brief filed January 7, 1975.
The commentary to standard 1.5 of the Approved Draft, 1968, of the Standards Relating to Pleas of Guilty, tells us,
Even though the court did not inquire of the prosecutor and of defense counsel as to the existence of any previous plea bargaining, the purpose of the inquiry mandated by this standard was accomplished, in our opinion, during the following portion of the colloquy between the court and defendant, which we repeat:
The foregoing exchange between the court and defendant served to inform defendant the court was not under any obligation to accept any recommendation or bargain reached by the parties and that the sentence which would be imposed following defendant's conviction as a result of his guilty plea would be one determined by the court after consideration of a presentence investigation.
Although we conclude the court's failure in the respect asserted by defendant does not justify a reversal under this record we point out that closer adherence to the plain, clear and specific guidelines set forth in the standards adopted in Sisco, would in all probability have...
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