Wessling v. Bennett, 19472.

• Decision Date: 15 May 1969
• Docket Number: No. 19472.,19472.
• Citation: 410 F.2d 205
• Parties: Albert Charles WESSLING, Appellant, v. John E. BENNETT, Warden, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

410 F.2d 205 (1969)

Albert Charles WESSLING, Appellant, v. John E. BENNETT, Warden, Appellee.

No. 19472.

United States Court of Appeals Eighth Circuit.

May 15, 1969.

William D. Guthrie, Webster City, Iowa, for appellant.

William A. Claerhout, Asst. Atty. Gen. of Iowa, Des Moines, Iowa, for appellee. Richard C. Turner, Atty. Gen. of Iowa, on the brief.

Before VAN OOSTERHOUT, Chief Judge, and MATTHES and HEANEY, Circuit Judges.

VAN OOSTERHOUT, Chief Judge.

This is a timely appeal by Albert Charles Wessling, hereinafter called defendant, from final order of the District Court denying his petition for writ of habeas corpus. The petition attacks the validity of a state court conviction and sentence of thirty years imposed March 14, 1966. Defendant was tried by a jury and found guilty on a County Attorney's information charging breaking and entering, in violation of § 708.8 of the Iowa Code, on December 22, 1965. Upon the basis of an information charging defendant was an habitual criminal under § 747.1 of the Iowa Code, a jury was impaneled and found defendant to be an habitual criminal. The maximum penalty under § 708.8 is ten-years imprisonment. The finding with respect to prior convictions under the habitual criminal statute increased the permissible punishment to forty-years imprisonment. Upon appeal to the Iowa Supreme Court, the conviction and sentence were affirmed. State v. Wessling, 150 N.W.2d 301.

Defendant in his petition filed in the federal District Court raised the issues relied upon on this appeal, which are hereinafter set out. The petition for writ of habeas corpus was denied by Judge Hanson, who heard this case. The factual background and the basis for the denial of the writ are fully and fairly set out in Judge Hanson's opinion. Wessling v. Bennett, 290 F.Supp. 511.

Inasmuch as the factual background is fully set out in the opinions of the Iowa Supreme Court and Judge Hanson's, we will not repeat the facts in detail here.

Defendant upon this appeal asserts that he is entitled to a reversal and to a writ of habeas corpus for his release for the following reasons:

"I. The Fifth Amendment requirement of presentment to a grand jury and indictment for an infamous crime is protected in the Fourteenth Amendment.

II. The Iowa habitual felon statute denies equal protection under the Fourteenth Amendment and further imposes cruel and inhuman punishment.

III. The Sixth Amendment requirement that the accused be informed of the nature and cause of the accusation is within the Fourteenth Amendment guarantees and requires that the accused be informed before trial of the habitual felon charge so that he may know the extent of the penalty demanded.

IV. The trial violated due process because of the improper admission of evidence procured by unreasonable search and seizure, improper by receiving evidence of tacit admissions based on silence and by permitting conviction on wholly circumstantial evidence without instructing thereon where the circumstantial evidence wholly failed to support a conviction."

We find that no federal constitutional right of the defendant has been violated and that the order denying the petition for habeas corpus should be affirmed. We will discuss the issues raised in the order above stated.

I.

The right of a state to prosecute a felony charge on the basis of an information drawn and filed in conformity with state law is clearly established. There is no support for defendant's position that state felony charges can be based only upon an indictment. Hurtado v. California, 110 U.S. 516, 538, 4 S. Ct. 111, 292, 28 L.Ed. 232; Moore v. Henslee, 8 Cir., 276 F.2d 876, 878; Kotek v. Bennett, 255 Iowa 984, 124 N.W. 2d 710, 712.

II.

The Iowa recidivist statute is not violative of any federally protected constitutional right of the defendant. Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606; Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446; Davis v. Bennett, 8 Cir., 400 F.2d 279; State v. Wessling, 150 N.W.2d 301.

III.

Defendant places principal reliance upon his contention that his constitutional rights were violated because he was not arraigned on the recidivist charge and that he was not notified in any way of the existence of such charge prior to his trial and conviction on the breaking and entering charge. Three informations were filed against the defendant relating to the breaking and entering charge. The first information, filed October 14, 1965, and the second information, filed December 9, 1965, are identical as to charge and are limited to the breaking and entering charge. The other information, filed on December 9, contains the same language as the other informations and goes on to charge that the defendant is an habitual felon under § 747.1 by reason of two described prior felony convictions.

As the Iowa Court explains in its opinion affirming the conviction, the Iowa Legislature in 1965 amended its recidivists statutes to provide for a two-stage trial, postponing the reception of evidence on prior convictions until after verdict on the primary charge. Section 769.6 of the Iowa Code provides for the filing of an information including the offense charged and the prior convictions making the recidivist provision applicable and a supplemental information containing only the new charge, with no mention of the prior convictions, and that only the information not containing the recidivist charge shall be read to the jury prior to conviction. Such statutory provisions were doubtless the cause for the multiple informations filed in this case.

Defendant does not challenge the validity of his arraignment on the breaking and entering charge or his voluntary plea of not guilty thereto. He makes no claim that he did not have full knowledge that he was being tried for such offense.

Defendant does vigorously deny arraignment upon or knowledge of the recidivist charge prior to his conviction on the primary charge. It is his contention that he first learned of the habitual criminal charge after his conviction upon the primary offense. Defendant was represented by competent counsel who was provided with copies of all informations filed and was aware of their contents. Defendant was late in appearing for his arraignment on the informations filed on December 9 but arrived in the courtroom while proceedings with respect thereto were still in progress. There is evidence that defendant was arraigned upon all informations. The trial court did not expressly resolve the issue of whether defendant was present at the arraignment on the informations filed December 9. The trial court decided the case upon the assumption that defendant had no knowledge of the recidivist charge prior to conviction by the jury on the breaking and entering charge.

Defendant urges that he was prejudiced by lack of knowledge of the recidivist charge prior to his conviction because he was advised by his counsel that the County Attorney had offered to dispose of the charges against him by accepting a plea of guilty to a charge of attempted breaking and entering, which carries a five-year penalty. Defendant's testimony is that he might possibly have accepted the offer if he had been aware of the recidivist charge.

Judge Hanson determined that the defendant had no federally guaranteed constitutional right to be informed of the habitual criminal charge prior to his conviction on the primary charge. Such determination is supported by controlling authority.

The Supreme Court has uniformly held that allegations of prior convictions under recidivist statutes do not charge a separate and distinct crime but bear only upon the permissible punishment. Oyler v. Boles, supra; Gryger v. Burke, 334 U.S. 728, 68 S.Ct. 1256, 92 L.Ed. 1683; Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917.

In Davis v. Bennett, supra, this court had occasion to consider the constitutional problems arising out of the Iowa recidivist statute. We held, citing numerous supporting Iowa authorities, that the Iowa Supreme Court has consistently held that the Iowa recidivist statute does not create a separate and distinct offense but is merely relevant in determining the penalty to be imposed should a conviction be obtained on the primary charge. We further...