Wallace v. State, 2--58782

• Decision Date: 22 September 1976
• Docket Number: No. 2--58782,2--58782
• Citation: Wallace v. State, 245 N.W.2d 325 (Iowa 1976)
• Parties: Robert B. WALLACE, Appellant, v. STATE of Iowa, Appellee.
• Court: Iowa Supreme Court

Page 325

245 N.W.2d 325

Robert B. WALLACE, Appellant, v.STATE of Iowa, Appellee.

No. 2--58782.

Supreme Court of Iowa.

Sept. 22, 1976.

James M. Sullivan, Des Moines, for appellant.

Richard C. Turner, Atty. Gen., Thomas Mann, Jr., Asst. Atty. Gen., and Ray A. Fenton, County Atty., for appellee.

Considered en banc.

LeGRAND, Justice.

This is a postconviction proceeding under Chapter 663A, The Code, to challenge petitioner's sentence following his guilty plea to a charge of robbery with aggravation committed in violation of § 711.2, The Code.

Petitioner seeks to set aside his plea as having been entered in violation of the standards set forth in State v. Sisco, 169 N.W.2d 542(Iowa1969)andBrainard v. State, 222 N.W.2d 711(Iowa1974).We reverse and remand with instructions.

The plea was entered on February 5, 1973, more than a year before Brainard, which has no retroactive effect.However, much of what we said in Brainard was explanatory of Sisco.To that extent Brainard, as well as Sisco, bears on our consideration of the present appeal.

Petitioner assails the plea procedure because, he says, the trial court failed to inform him that his guilty plea waived his privilege against self-incrimination; he did not understand the charge against him; the trial court did not determine that there was a factual basis for the plea; the record fails to show the plea was voluntary.

We believe the record is minimally sufficient on the first three of these, but the judgment must be reversed because the record does not show the plea was constitutionally voluntary under Sisco standards.

Petitioner's insistence that his plea was not voluntarily entered rests upon the contention it was based on undisclosed plea bargaining.He argues he did not understand the agreement resulting from the plea negotiations.He also says he pled guilty because of the representations made as to additional prosecutions and possible harsher punishment if he did not do so.

Plea bargaining bears upon voluntariness because it involves promises or concessions made in return for the plea.We discussed this in Sisco (169 N.W.2d 547--548), where we adopted the Minimum Standards for Criminal Justice, Pleas of Guilty, of the American Bar Association, including Standard 1.5 as follows:

'The court should not accept a plea of guilty or nolo contendere without first determining that the plea is voluntary.By inquiry of the prosecuting attorney and defense counsel, the court should determine whether the tendered plea is the result of prior plea discussions and a plea agreement, and if it is, what agreement has been reached.If the prosecuting attorney has agreed to seek charge or sentence concessions which must be approved by the court, the court must advise the defendant personally that the recommendations of the prosecuting attorney are not binding on the court.The court should then address the defendant personally and determine whether any other promises or any force or threats were used to obtain the plea.'

Brainard, decided five years after Sisco, expanded upon the concept of plea bargaining as it affects the voluntariness of a guilty plea.

Before considering this appeal, we mention again the increasing volume of cases reaching us on plea or plea-related matters.

In State v. Wall, 239 N.W.2d 548(Iowa1976), we said:

'This is another in a rising flood of appeals involving guilty plea hearings which question trial court compliance with the requirements of our six-year-old decision in State v. Sisco, 169 N.W.2d 542(Iowa1969).'

Nothing has happened to change this view.There has been no perceptible decrease in the number of appeals on guilty pleas or plea-related matters.The present case is another which must be reversed on an issue which has been here on numerous occasions.

As heretofore mentioned, defendant says his guilty plea was not voluntary because of his misunderstanding of the plea bargain agreement.We have recognized plea bargaining as a useful and practical tool in disposing of the ever burgeoning volume of criminal cases.State v. Hansen, 221 N.W.2d 274, 277(Iowa1974).We must now decide if the plea bargaining procedure followed here meets the standards heretofore adopted.We hold it does not.

When petitioner pled guilty, there were pending against him eight other felony charges.In addition to these, he had earlier pled guilty to another felony--forgery--although sentence on that plea had not yet been pronounced.According to the undisputed evidence, petitioner was reluctant to plead to the robbery charge.Plea bargaining ensued, participated in by the county attorney, defense counsel(not petitioner's present counsel) and petitioner.The State agreed to drop all Pending charges in return for petitioner's plea of guilty to robbery with aggravation.Petitioner thereupon pled guilty to the robbery charge and was sentenced to serve a term of not more than 25 years in the penitentiary.See§ 711.2, The Code.

None of the eight other felony charges has been pressed, although it is not clear whether they have actually been dismissed.Several months after the robbery sentence, defendant was returned from the penitentiary for sentencing on the forgery charge.That sentence triggered the dispute now before us.

The issue is: Did the State agree to dismiss the eight pending felony charges And the forgery charge upon which defendant was awaiting sentence; or did it agree to dismiss all charges Except the forgery charge?

There were only two witnesses at the postconviction hearing, the petitioner and his then attorney.The fact of plea bargaining is not contested.The only disagreement concerns the terms of the bargain.Petitioner claims he'misunderstood' the agreement.His trial counsel, on the other hand, stated it was his 'impression' dismissal of the forgery charge was not part of the plea bargain.

However, the record is silent as to whether this 'impression' was communicated to petitioner.If not, it is meaningless because it is what petitioner understood, not what his attorney thought, which is important.The decision to plead guilty or not was defendant's alone.Henderson v. Morgan, --- U.S. ---, ---, 96 S.Ct. 2253, 2259, 49 L.Ed.2d 108, 117--118(concurring opinion)(1976);State v. Thomas, 205 N.W.2d 717, 723(Iowa1973).

We have upheld pleas in a number of plea bargaining cases even though the Sisco directions were not literally followed in keeping with our view that we do not insist a 'ritualistic formula,' requiring only 'meaningful compliance' with the standards there adopted.SeeState v. Warner, 229 N.W.2d 776, 779(Iowa1975);State v. Hansen, supra, 221 N.W.2d at 277;State v. Reppert, 215 N.W.2d 302, 308(Iowa1974);State v. Christensen, 201 N.W.2d 457, 459(Iowa1972).

In all of these the trial court failed to inquire specifically into the matter of plea bargaining.However, in each of them inquiry had been made concerning promises and threats generally; and in each instance, such inquiry brought a negative response.We held this sufficient because, if there were No threats or promises, there could have been no plea bargaining threats or promises either.Even so, in both Warner and Hansen we asked more faithful adherence to Sisco requirements in plea proceedings.

Unlike the cases heretofore cited, there are no saving circumstances here.There was no inquiry concerning promises or threats generally, and there was no inquiry concerning plea bargaining specifically.The matter was completely ignored.

This assumes unusual importance because of the position now taken by the petitioner.In the face of admitted plea bargaining, he insists he misunderstood the import of the agreement reached.Furthermore when petitioner's trial court attorney testified at the postconviction hearing, he did not say he advised petitioner the forgery charge was not to be dismissed.If such advice had been given, it would seem to satisfy the 'meaningful compliance' test of both Sisco and Brainard under the holding in Henderson v. Morgan, supra.

In Hendersonthe court placed considerable reliance on the district court's finding that defendant'was not advised By counsel or court, at any time, that an intent to cuase the death or a design to effect the death of the victim was an essential element of Murder 2nd degree.'(Emphasis supplied).(--- U.S. ---, 96 S.Ct. 2255, 49 L.Ed.2d 112)

The Henderson opinion also contains these statements:

'The lawyers gave respondent advice about the different sentences which could be imposed for the different offenses, but, as the District Court found, Did not explain the required element of intent.'(Emphasis supplied)--- U.S. ---, 96 S.Ct. 2256, 49 L.Ed.2d 113.

'In direct colloquy with the trial judge respondent stated that his plea was based on the advice of his attorneys, that he understood he was accused of killing Mrs. Francisco in Fulton County, that he was waiving his right to a jury trial and that he would be sent to prison.There was no discussion of the elements of the offense of second-degree murder, No indication that the nature of the offense had ever been discussed with respondent, and no reference of any kind to the requirement of intent to cause the death of the victim.'

(Emphasis supplied)--- U.S. ---, 96 S.Ct. 2256, 49 L.Ed.2d 113.

'Defense counsel did not purport to stipulate (that respondent had the requisite intent); They did not explain to him that his plea would be an admission of that fact; and he made no factual statement or admission necessarily implying he had such intent.In these circumstances it is impossible to conclude that his plea to the unexplained charge of second-degree murder was voluntary.'(Emphasis supplied)--- U.S. ---, 96 S.Ct. 2258, 49 L.Ed.2d 115.

'Normally the record contains either an explanation of the charge by the trial judge, Or at least a representation by defense counsel that the nature of the offense has been explained to the accused....