State v. Wisher, 55818
| Decision Date | 24 April 1974 |
| Docket Number | No. 55818,55818 |
| Citation | 217 N.W.2d 618 |
| Parties | STATE of Iowa, Appellee, v. Lynn Michele WISHER, Appellant. |
| Court | Iowa Supreme Court |
Jerald W. Kinnamon, Cedar Rapids, for appellant.
Richard C. Turner, Atty. Gen., David E. Linquist, Asst. Atty. Gen., William G. Faches, County Atty., for appellee.
Submitted to MOORE, C.J., and MASON, LeGRAND, REYNOLDSON and HARRIS, JJ.
Lynn Michele Wisher appeals from judgment imposing sentence under what is now section 204.410, The Code, 1973, following his conviction of possession with intent to deliver a controlled substance in violation of section 204.401. The Uniform Controlled Substances Act was enacted by the First Regular Session of the Sixth-fourth General Assembly, chapter 148 and now appears in chapter 204 of the 1973 Code.
A county attorney's information was filed December 27, 1971, in Linn County, charging Wisher with the crime of possession with intent to deliver a controlled substance, to wit: marijuana. The crime is a felony punishable by imprisonment for a term not to exceed five years and by a fine of not more than $2,000. Defendant initially entered a plea of not guilty. August 4, 1972, however, he withdrew the former plea and tendered a plea of guilty to the offense charged.
The trial court in a commendable fashion thoroughly questioned and advised Wisher pursuant to the standards for accepting a guilty plea set out in State v. Sisco, 169 N.W.2d 542 (Iowa 1969). After determining that defendant's guilty plea was a voluntary and intelligent act done with actual knowledge of the existence and meaning of his constitutional rights involved and with full understanding of the charge made against him and the direct consequences of the plea and being satisfied there was a factual basis for the plea, the court accepted defendant's tendered plea.
In regard to the factual basis for the plea, defendant admitted possessing several tins of marijuana amounting in total weight to about 12 pounds. At this time also the court granted defendant's request for an accommodation hearing pursuant to section 204.410, The Code.
After hearing evidence presented at the accommodation hearing which comprises 40 pages of the record the trial court ruled defendant had not established by clear and convincing evidence he possessed the marijuana with intent to deliver only as an accommodation to another person. The court ordered a presentence investigation prior to sentencing defendant for the felony offense of possession with intent to deliver.
From the record it is clear no attack on the constitutionality of section 204.401 was made at any time up to and including the accommodation hearing. Two days before sentencing defendant filed a motion to withdraw the guilty plea and to proceed to trial. The alleged factual basis for withdrawal was that defendant entered the guilty plea without full knowledge of the consequences of such a plea. Essentially, it is asserted defendant consented to the plea upon advice of counsel he would be sentenced for a lesser charge upon findings from the accommodation hearing.
Other allegations were that defendant was innocent of the charge and acceptance of the plea and simultaneous allowance of an accommodation hearing was inconsistent as a matter of law. The basis for this latter argument was the contention sections 204.401 and 204.410 constituted separate offenses and defendant could not plead guilty to one with the expectation of sentencing to the other. The plea of guilty was allegedly invalid because of the possibility of sentencing for a misdemeanor which involved a different element than required for a felony.
It was also alleged a trial should be granted because section 204.410 provided for an affirmative defense at a trial and not mitigation of guilt. In effect defendant appears to argue here section 204.410 establishes a defense usable only at a trial for a felony charge pursuant to section 204.401(3); therefore, the guilty plea should be withdrawn and a trial allowed. Clearly, this allegation did not allege section 204.410 was unconstitutional.
Finally, the motion alleged that regulation of marijuana denied defendant due process.
Trial court overruled the motion and thereafter sentenced defendant to imprisonment in the men's reformatory for a period not to exceed five years and assessed a fine of $500.
I. Defendant in seeking reversal contends in the one assignment of error asserted section 204.410, The Code, insofar as it places the burden of persuasion on a defendant to prove he is entitled to the reduced penalty of its provisions denies a defendant due process of law. In support of this assignment defendant also argues the procedure established by section 204.410 is unconstitutional in that it denies a defendant equal protection.
In written argument counsel who did not represent defendant at the sentencing stage concedes the question of whether the legislature may constitutionally shift the burden of persuasion to a defendant and require him to establish an independent fact in order to receive a reduced punishment has been affirmatively answered by this court in State v. Vietor, 208 N.W.2d 894 (Iowa 1973). Nevertheless, he urges this court to reconsider its holding in that case pursuant to section 793.18, The Code, even though the constitutional question was not expressly raised in the trial court.
Section 793.18 provides: ...
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State v. Leonard
...He argues the rule requiring issues to be presented in the trial court before they can be made the basis for reversal (see State v. Wisher, 217 N.W.2d 618 (Iowa 1974) and State v. Mathias, 216 N.W.2d 319 (Iowa 1974)) is not apposite here because 'the present controversy surrounds the object......
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State v. Johnson, 60174
...the same manner as any other issue. Long v. Long, 255 N.W.2d 140, 144 (Iowa); Speed v. Beurle, 251 N.W.2d 217, 219 (Iowa); State v. Wisher, 217 N.W.2d 618, 620 (Iowa). We therefore do not reach the merits of defendant's allegations concerning the prosecutor's closing III. The defendant next......
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State v. Ware
...postulates it is our duty to entertain his aforesaid belated assignment under the provisions of Code § 793.18, quoted in State v. Wisher, 217 N.W.2d 618, 620 (Iowa 1974). We are not so persuaded. As this court said in State v. Smith, 228 N.W.2d 111, 112 (Iowa 1975): "Our statutory duty to r......
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State v. Miller, 57203
...court should have done, or order a new trial, or reduce the punishment, but cannot increase it.' This statement from State v. Wisher, 217 N.W.2d 618, 620 (Iowa 1974), is relevant to defendant's contention: 'In regard to preservation of erro and review under section 793.18, State v. Galvan, ......