Thе defendant, Joseph Britain, pleaded guilty to the theft of 100 bales of hay (worth about $100). He was sentenced to a term of not less than one year nor more than five years in the penitentiary. The sentence may have been more severe than defendаnt expected. In fact, he may have expected to be placed on probation.
In any event, after sentenсe was rendered, defendant engaged new counsel and moved to set aside his guilty plea, with leave to enter a pleа of not guilty. His motion, after a full hearing by the court, was denied and defendant has appealed.
On appeal, appellant contends :
1. The defendant is actually innoсent but the prosecuting attorney threatened to prosecute defendant’s wife and son; the prosecuting attorney, however, entered into an agreement with defendant’s attorney that he would not prosecute the wife or son if defendant pleaded guilty; and defendant’s plea of guilty was not in fact voluntary but entered out of fear that defendant’s wife and son would be prosecuted if such a plea was not made.
2. The trial court failed to comply with Rule 15, W.R.Cr.P., by addressing the defendant personally to determine if the defendant’s plea was made voluntarily. Regarding an agreement between the
prosecuting attorney and defendant’s attorney, the prosecuting attorney testified at the hearing on defendant’s motion to withdraw his plea. The following questions and answers are a part of his testimony:
“Q If Mr. Boyer [defendant’s attorney] were to say — and he is here as a witness and will be called in a few minutеs — that there was a gentleman’s agreement between himself and yourself that in the event Mr. Britain pled guilty that no charges would be leviеd against his wife or his child,, would you say that that gentleman’s agreement existed? A Yes, it did.
"Q Did you keep the agreement? A Yes.”
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“Q But that was the agreement you had with him, wasn’t it, that if he pled guilty you wouldn’t prosecute the wife and child ? A. That is true.”
Of this agreement, the attorney general says in his brief the defendant’s counsel promised to plead the defendant guilty and the prosecutor promised not to prosecute other members of the family that might be imрlicated.
The fact that the attorneys resolved matters as they did in this case does not in and of itself prove that defendant’s рlea was involuntary. The trial court, after a hearing in connection with defendant’s motion to set the plea aside, found the рlea had been voluntarily entered.
However, the purpose of Rule 15 of the criminal rules is to fix a guideline for the court to follow in detei'mining whether a plea is voluntary. In this instance the guideline was not followed and therefore the plea of guilty was not properly accepted. Hence, we need not decide whether the plea was in fact voluntary or involuntary.
Rule 15 specifies the various pleas a defendant in a criminal case may make, including a plea of guilty. It then provides:
“The court may refuse to accept the plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addrеssing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea.”
*545 It is clear from the record in this case that the district court did not address the defendant personally and determine that his plea was made voluntarily with understanding of the nature of the charge and the consequences of the plea. Although the state insists that there was understanding and voluntariness, it admits the defendant was not addressed personally in that regard.
Rule IS of our criminal rules is the same as Rule 11 of the Federal Rules of Criminal Procedure. The United States Supreme Court passed upon the effect of this rule in McCarthy v. United States,
Having found in that case that the district judge did not comply with Rule 11, the court held a defendant is entitled to plea аnew if a United States district court accepts his plea without fully adhering to the procedures provided for in the rule. The oрinion further states that Rule 11 expressly directs the district judge to inquire whether a defendant who pleads guilty understands the nature of the chаrge against him and whether he is aware of the consequences of his plea.
Concerning the purpose of the rule, it was said in McCarthy:
“First, although the procedure embodied in Rule 11 hаs not been held to be constitutionally mandated, it is designed to assist the district judge in making the constitutionally required determination that a dеfendant’s guilty plea is truly voluntary. Second, the Rule is intended to produce a complete record at the time the pleа is entered of the factors relevant to this voluntariness determination. Thus, the more meticulously the Rule is adhered to, the more it tends to discourage, or at least to enable more expeditious disposition of, the numerous and often frivolous post-conviction attacks on the constitutional validity of guilty pleas.” 1
Following the
McCarthy
decision, it was held in United States v. Cody, 8 Cir.,
In Raines v. United States, 4 Cir.,
It is clear in the record before us that the trial judge did not address the defendant personally аnd determine by such means that defendant’s plea was made voluntarily with understanding of the nature of the charge and the consequences of the plea, as required by Rule 15, W.R.Cr.P. Also, decisions of the United States Supreme Court and other federal courts have mаde it clear that a guilty plea in such a situation must be set aside and the defendant allowed to plead anew.
Keeping in mind thаt one of the reasons for strict adherence to the requirement of the rule is to discourage, or at least to enable more expeditious disposition of, the numerous and often frivolous post-conviction attacks on the constitutional validity of guilty pleas, we consider it well to remand this case to the district court with instructions to set aside the defendant’s plea of guilty and permit him to plead anew.
Remanded with instructions.