State v. Sisco

LeGRAND, Justice

(concurring specially).

I concur in the result, but only because I feel compelled to do so by*reason of McCarthy v. United States, 394 U.S. 459 , 89 S.Ct. 1166 , 22 L.Ed.2d 418 , and Boykin v. Alabama, 89 S.Ct. 1709 , 23 L.Ed.2d 274 . Except for these recent United States Supreme Court decisions, I would have no doubt this defendant was accorded his full constitutional rights.

We reverse here because defendant’s guilty plea was accepted by the trial court without first having ascertained it was (1) voluntary, (2) made with an understanding of the charge, and (3) made with knowledge of the penal consequences. It is interesting to note the defendant does not claim, nor do we find, the plea was not in fact voluntary, was not in fact made with an understanding of the charges, or was not in fact made with a knowledge of the penal consequences. The result, it seems to me, relegates substance to a subordinate position and insists upon pure formalism as a test for constitutional conformance.

Under our opinion in the present case it is now obligatory upon our courts to comply with rule 11, Rules of Federal Procedure. These provisions are fully discussed in the opinion. In the McCarthy case the Supreme Court announced the rule imposed no constitutional burdens and was nothing more than a court rule adopted for federal courts. Such rules, of course, — at least until now — are not binding on state courts.

However, the Boykin decision extends McCarthy far beyond its own plain tenets. Despite the limited holding in McCarthy, the Supreme Court in Boykin — just two months later — used that decision as a springboard for deciding a plea of guilty in a state court was constitutionally invalid unless federal rule 11 was complied with. There is nothing in the McCarthy opinion to justify this conclusion, and the two-judge dissent in the Boykin case forcefully points this out.

We are here adopting a mere ritual as an easy and pushbutton method of deciding in advance — without reference to the particular circumstances — when a plea of guilty fails to meet constitutional standards. I am fully aware the opinion announces that the formula used should not become “ritualistic”, but despite this admonition the inevitable result is just that.

My objection is not to the standards imposed but rather to the method which the opinion says must be followed in order to demonstrate they have been met. This completely disregards the real issue: was the plea voluntary; was it made with the full knowledge of the consequences; and was it made realizing the punishment which could be imposed? Apparently this now becomes of trifling importance. The inquiry no longer is what did the defendant know at the time he entered his plea, but what did the trial court tell him at that time. Even if he were to be fully aware of every fact the trial court could point out, a defendant would under this opinion nevertheless be entitled to have his plea set aside because his information did not come from a particular source.

As recently as March of this year the United States Second Circuit Court of Appeals considered a similar problem in United States ex rel. Brooks v. McMann, 408 F.2d 823, 825 . There it was claimed *553 the trial court had failed to warn a defendant he was subject to sentencing under the recidivist statute at the time his guilty plea was accepted. After conceding the defendant should be advised of the consequences of his guilty plea, the court said:

“But even if due process requires that an accused be aware of possible recidivist treatment prior to a judge’s acceptance of the accused’s plea it should not always be necessary that such information be given the accused by the court for it is obvious that if the accused knew from any other source of the possible consequences to him of a guilty plea there would be no violation of due process if the court failed to convey the information. In the present case Brooks does not allege in his habeas petition that he was ignorant of the consequences of his guilty plea; his only claim that due process was denied him is that he was not told of the consequences by the trial court.

“The circumstances here demonstrate that appellant knew the consequences that would follow after his plea. First and foremost, Brooks had counsel at each stage of the state criminal proceedings, and it is reasonable to assume that his counsel advised him of the consequences of his plea. Certainly the lack of any affidavit from his attorney that the attorney did not discuss these consequences with him weighs heavily against the petitioner.” (Emphasis supplied.)

I consider that reasoning particularly applicable here. I also consider the result to be far more desirable, although it is doubtful if it can withstand the impact of the recent Supreme Court decisions already referred to.

I would subscribe to the principle a defendant who denies he voluntarily entered his plea, or who says he did so without understanding its consequences, is entitled to a hearing to settle that question. Here, however, defendant does not — even now — assert any such claim. It would seem axiomatic that, if defendant is to be entitled to relief because he did not understand his rights, he should first allege he was in fact ignorant of those rights. Otherwise where is the harm?

Until the McCarthy and Boykin decisions this was the holding in at least some of the federal circuit courts throughout the country. The varying views are discussed in McCarthy and need not be repeated here. This has also been the rationale of the holdings of some of the state courts. For instance, see State v. Biastock, Wis. 167 N.W.2d 231, 235 , which was decided after the McCarthy opinion but before the Boy-kin opinion, where the Wisconsin court said with reference to a plea of guilty, “Defendant was represented by counsel in the trial court. Therefore, in the absence of proof to the contrary, it must be assumed that counsel advised the defendant of all possible defenses.”

The same assumption should be made here as to the advice counsel gave defendant. There is no claim he was not adequately represented. The record shows he was. The record further shows counsel, in the presence of the defendant, made a detailed statement to the court showing he had advised defendant on substantially all the matters which federal rule 11 requires. The opinion says that when counsel stated defendant understood the consequences of his act this may have meant only that “he knew his conduct was morally wrong or even that it constituted a violation of the law.”

This appears to be a fanciful searching for unlikely possibilities for which there is no basis in the record. It has now been more than a year since the guilty plea was entered. He has had time to reflect upon and consider the plea he entered. He has at all times been represented by conscientious and diligent counsel. Yet he doesn’t suggest his understanding of the consequences of his act was anything less than it appears to be or that his plea was involuntary.

*554 There is nothing mysterious about the information an attorney gives a client who is considering what a plea of guilty means. As we said in State v. Cooper, Iowa, 161 N.W.2d 728, 730 , “[E]ven a layman should expect a plea of guilty to be treated as an honest confession of guilt and a waiver of all defenses known and unknown.”

If counsel says he advised his client of the consequences of such a plea, it involves no strain upon the imagination to assume this included telling him of his right to a jury trial with its built-in protections and of the punishment to which he is subject. Any other result attributes to counsel either stupidity or deceit, or both. A defendant should, of course, be permitted to charge his counsel practiced one of these arts upon him, but this court should not assume he did so.

Regardless of any other considerations and as an absolute minimum, I would insist defendant allege the absence of those conditions which we say must be present before his plea of guilty is valid. Having failed to do so, he is entitled to no relief. I find nothing in our previous decisions, all cited in the opinion, to the contrary.

The result reached, if justifiable at all, must be bottomed on the recent opinions of the United States Supreme Court. The dissent in Boykin points out, correctly I believe, that the decision there makes rule II “substantially applicable to the states as a matter of federal constitutional due process.” That dissent further finds the result reached “bizarre.” I believe ours is too.

Much as I agree with the Boykin dissent, it is of course the majority opinion which we are bound to observe. For that reason I reluctantly concur in the result.

LARSON, J., joins in this special concurrence.