*1 work, him with the he too inability to farm suffered neck help persistent since the accident which to some extent his work. pains impeded there, Although was medical evidence introduced de competent fendant claim that there no support permanent damage accident, from the we believe plaintiffs resulting that affirmance is indi cated by Lee, such decisions of Kroeger this court as 270 Minn.
132 N. 219, 146 W. and Colgan v. 275 Minn. Raymond, W. (2d) 530. We do believe that Auger Rofshus, Dibbs, N. W. Romano v. 256 Minn. 98 W.N.
146; or Wehle, 477, 144 Vanderlinde v. cited defendant, are inconsistent with this determination.
Affirmed. CHAPMAN
ROBERT E. v. STATE.
162N. W.
November 1968 No. 41285. *2 Head, Douglas Kyle, Gen- General, Richard H. M. Solicitor Attorney Robert O’Connor, General, James J. eral, and Attorney Assistant Special Tuveson, C. Attorney, for appellant. County Haskvitz, Jones, L. Assist-
C. Paul and Ronald Defender, State Public Defender, ant State Public for respondent.
Sheran, Justice. for post- granting petition court order of the district from an Appeal for mur- conviction and thereby conviction relief 590.06. St. The order is appealable. der in the second degree. ground was based principally petition from elicited (a) information been because rejected should have defendant the court before by sentence disclosed absence intent to kill, which is an essential element of minder in the second degree, and (b) the was not and it freely voluntarily given since was by a “confession” secured from defendant prompted means. by improper May On man was killed in Freeborn On June County.
1963, the grand of that returned an de- jury county indictment charging fendant, Robert E. crime of de- Chapman, murder in the first gree. 25, 1963, On June this indictment was dismissed the state and an information was filed charging defendant with murder the second degree. Defendant then petitioned to He plead guilty. was arraigned charge of murder the second degree also upon an informa- tion charging two He prior felony convictions. interro- pled guilty. After gation the court and the he attorney, county sentenced im- prisonment period for a of not less than 30 nor more than years was committed.
In defendant petitioned District Court of Washington County for a writ habeas that his corpus alleging to the charge of *3 in murder the second degree was because improperly the accepted pre- sentence to interrogation has reference been made disclosed facts not consistent the essential elements of murder the second degree. claimed, also, He inadequate and the use representation of improperly obtained confession in his securing The was denied the plea. petition by district court without hearing Tahash, a and in State ex rel. Chapman (2d) 309, the the matter was remanded to dis- trict a hearing court for on these claims. Defendant then petitioned for relief under c. the Act Remedy by legis- Postconviction the adopted 336). (L. 1967, hearing, lature c. After an the evidentiary peti- in 1967 and the matter now comes before us on the granted appeal by tion was state. cases are a of There are by plea guilty.
Most criminal of disposed defend advantages considerations of combined with the public policy state, ant the of process.1 which are From the standpoint furthered by Conviction, Newman, general discussion, For a see The Determination of or Guilt Trial. Innocence Without of a and necessity complex tender of eliminates guilty plea costly and
criminal trial. court calendars overburdened Congested prosecutors of a From the of defendant whose crimi- standpoint guilt are relieved. offense is and it is better to provable, frequently acknowledge nal clear a sentence more pursue than to a fruitless contest which lead to guilt of than that to be of the imposed acceptance plea guilty. severe likely upon if defendants are per- The of the criminal law are served purposes are fact But guilty. to offenses of which not in guilty they mitted to plead upon once the and a is entered plea is conviction accepted judgment it, to some ex- favoring judgments general policy finality applies tent, least, and in criminal as well as in civil cases.2 tender accept- ance of a is and most solemn While must be a commitment. plea no which he did not the state has reason to a man for a crime imprison commit, disposed encourage are not accused ‘play “[w]e persons with the courts at the overburdened calendars games’ expense already the rights setting of other accused trial” aside persons awaiting by and ac- upon of conviction based made with deliberation judgments pleas States, the court with cepted caution. Everett United by App. 60, 65, (2d) 979, D. 336 F. C. * * *
“* * *
rights
The mere fact
that an accused
his
knowing
act,
will receive
consequences
of his
and believes that he
hopes
than he would
punishment
shorter sentence or milder
by pleading
a trial
no
ground
permitting
and conviction
upon
jury, presents
been
after
has not
expectation
he
withdrawal
finds
Morreale,
E.
realized.”
107 N.
Ill.
People
of guilty
based
Furthermore, a
conviction
effect
such
if the
not be
without the
reasons
strongest
should
vacated
the state due
bar
will
seriously prejudice
proceedings
vacation
be to
or
the time the
occurring between
circumstances
changes
evidentiary
tried
will
and the time when
case
accepted
*4
Note,
how
Notes,
See,
L.
J.
55 Col.
Rev.
64 Yale L.
547, 558, 163 N. W.
ever,
Subject restraining frequently these we have effect that an withdraw is addressed plea application the sound discretion of the trial court and should be whenever granted to correct manifest There for necessary injustice. authority is supporting principle. this
The American Bar Project Association Minimum Standards for Justice, (tentative draft), Criminal Standards to Pleas of Relating Guilty 2.1, sets out a § standard for of a plea: withdrawal
“(a) The court should allow the defendant to withdraw his plea guilty or nolo defendant, contendere whenever the mo- timely tion withdrawal, that withdrawal is proves to correct necessary manifest injustice.
“(i) A motion for withdrawal is if due diligence, made with timely therein, of the considering necessarily nature is not allegations barred because made subsequent to or sentence.
“(ii) to correct a when- injustice Withdrawal manifest necessary ever the defendant that: proves
“(1) he was denied the effective assistance of guaranteed counsel constitution, statute, him by rule; or
“(2) the plea was not entered or ratified the defendant or a person behalf; authorized to so act in his
“(3) plea knowledge or was entered without involuntary, actually or could be or imposed sentence charge imposed; “(4) or he did not receive the sentence concessions contem- charge to seek agreement attorney failed plated by prosecuting or in the promised plea agreement. not to these concessions as oppose
“(iii) for withdrawal without The defendant move been en- charge he is has alleging innocent tered. (5 Cir.) cer example, see 115 F. For Farnsworth v. Sanford denied, 85 L. ed. 313 U. 61 S. S. Ct.
tiorari *5 “(b) In the absence of a showing withdrawal is necessary correct a a injustice, manifest defendant not may withdraw his of plea or nolo contendere guilty as a matter of once the right has been plea sentence, the court. Before accepted by the court in its discretion may allow the defendant to withdraw his fair and reason plea any just unless the substantially has been reliance prosecution prejudiced by the defendant’s plea.”
The Wisconsin Court the standard but Supreme adopted above noted that the four factual injustice used illustrate manifest are stituations (2d) not exhaustive. State v. 9. Reppin, Wis. The Illinois Court the Supreme manifest-injus also follows apparently test, (1) tice suggesting injustice plea manifest exist when law; (2) entered on a was the facts or the misapprehension plea of was entered in of counsel or the consequence misrepresentation by (3) one state’s someone else in the case is where attorney authority; or accused; (4) there is doubt of the of the the accused has a defense guilt better (5) of consideration will be worthy by justice or ends jury; Walston, served the case to 38 Ill. by submitting a jury. People 230 N. E. In withdrawal of a Pennsylvania, plea properly “[t]he (a) allowed where it the nature of the ignorance has been entered in crime charged with which defendant has been and the consequences (b) or not and volun- freely where was made plea, plea (c) mistake, or where the was entered or without tarily, plea by defendant, (d) consent where entered an un- by or was plea case, counseled defendant in a or in a case in which felony homicide * * *, (e) or indigent defendant was or was refused counsel where fear, (f) induced fraud or or where plea justifiable was threats or by made, or Judge kept, trial has but has not or com- hearing promise mitment induced the or where because of plea, (g) unusual very circumstances, the Court Justice will best be served sub- believes that by (Italics omitted.) Scoleri, the case to a Commonwealth mitting jury.” 218, 247, (2d) 521, 536, 415 Pa. 202 A. 203 A. or refusing
In recent orders authorize the years authorizing with- of a drawal have been this court where claim considered was made that:
The jurisdiction subject court lacked over the matter.4 The defendant lacked the mental capacity interpose guilty.5 not defendant was afforded the adequately advice compe
tent counsel.6
An agreement made inducing prosecution *6 fulfilled.7 not defendant did understand the nature and elements of the charged
offense and the of consequence plea.8 his 4 Minton, 213, (2d) 384, v. State 276 Minn. 149 N. W. where defendant pled guilty charged although properly theft not with offense. Cf. State Youngren, 388, v. (2d) 275 Minn. 147 W.N. 370. 5 Seebold, 241, 854; (2d) State v. Stang- 280 Minn. 158 N. State ex rel. W. Tahash, 353, vik v. (2d) 281 Minn. 161 N. W. 667. 6Where defendant right counsel, shows effective denial of his convic plea guilty See, tion based on a Waldron, of should vacated. State v. 273 57, (2d) Note, Minn. 139 also, Seebold, N. W. supra; 785. State v. v. State Johnson, 218; 209, (2d) 279 Minn. Roberts, 156 N. W. State 279 v. Minn. 319, (2d) 760; Tahash, 156 N. 359, W. State ex rel. Turner v. 279 Minn. 904; Peters, 156 (2d) 832; 309, (2d) N. W. v. State 274 Minn. 143 N. W. Ingram, 356, State (2d) v. 273 Minn. N. 141 W. 802. 7 Wolske, 465, (2d) v. State 280 Minn. 160 N. W. 146. 8 plea guilty permitted Withdrawal of a of will not be where defendant understood charged the nature and seriousness of the offense at the time of See, Hamilton, 528; pleading. 21, (2d) State v. 280 Minn. 157 N. W. State Bohall, 1, (2d) 845; Judd, 415, v. 280 Minn. 157 N. State W. v. 277 Minn. 724; Roberts, (2d) supra; Tahash, 152 N. W. Oney State v. State ex rel. v. 277 394, (2d) 526; Fagerstrom, 561, Minn. 152 N. W. State v. 276 Minn. 151 (2d) 251; Peters, 421, supra; Jones, N. W. State v. State v. 267 Minn. 127 (2d) N. W. plea guilty permitted
Withdrawal of a will be where did defendant See, consequences plea understand the of his at the time of v. pleading. State Hamilton, supra; Bohall, supra; Roberts, supra; State v. State v. State v. Ad kison, 1, 394; Tahash, (2d) 279 ex Minn. 155 N. State Adams v. W. rel. 545, Porter, (2d) 562; 306,
Minn. 143 N. W. 148 N. W. State v. 274 Minn. 822; (2d) Peters, supra; Jones, supra. State v. State v. of a clear and because only was interposed
The plea guilty obtained admissibility illegally concerning grave misapprehension evidence.9 was inter time his plea at the made the defendant
Statements charged element of crime an essential the existence of negated posed plea.10 inconsistent with the were if the asserted grounds cases that stated in these We have assumed or to vacate the authority had were the district court for relief established entered. had been of conviction though even plea We have a rarity.11 is order plea Reversal of an Tahash, 154 N. W. Drysdale ex rel. In State obtained, confession, to invalidate illegally for a that in order the court held been misled (a) have Defendant must guilty: based on a conviction confession, illegally obtained rights regard to the to his constitutional as existence of the by the prompted (b) have been guilty must his 203; (2d) Linehan, See, also, 150 N. W. 276 Minn. State v. confession. Tahash, Minn. Tahash, supra; Schuler State ex rel. State ex Turner v. rel. 404; 200; Kobi, 151 W. 277 Minn. 154 N. W. State v. Fruhr ex rel. Poelakker, State 276 Minn. Tahash, 146 N. W. man v. by illegally will also obtained evidence prompted A genuine misapprehension under that defendant was the basis be vacated on Poelakker, See, g., rights. constitutional e. concerning legal position and *7 457, (2d) Hemstock, State N. sup 276 Minn. 150 W. ra; State v. 307, Richter, 133 supra; Peters, Ingram, v. 270 supra; State State v. v. denied, 119, 537, 860, ed. 15 L. 86 S. Ct. W. certiorari U. N. S. (2d) 98. guilty, plea defendant, by after a of the court upon examination If element of of an essential negate the existence would states facts which made, of counsel on motion guilty, should be withdrawn crime, if of the Tahash, supra. ex rel. the court. State Schuler or guilty by statements made defend- plea of where accept to improper It is guilty plea. sentencing are inconsistent with arraignment or time of ant at Jones, (2d) 489; 329, Olson, W. State v. See, 133 N. 270 Minn. State v. (2d) 227; Tahash, 100, 153 N. W. 278 Minn. supra. Terry rel. State ex Cf. Tahash, 116 N. W. Crossley 263 Minn. State ex rel. Tahash, 261 Minn. 110 W. See, Norgaard v. ex rel. (2d) 867. to
refused order vacation of a of when guilty manifest has injustice not been demonstrated.12 have We held that relief is delay seeking a relevant consideration.13 Committee on the Criminal the Advisory Trial to American Bar
Association Project Justice, on Minimum Standards for Criminal (tentative Standards to Relating draft), Pleas of Guilty concluded: p. “There does not to be appear any reason for good withdrawal allowing as a matter of right, absent a showing injustice, manifest once the court has However, the accepted plea.” withdrawal be allowed be- may fore sentence for fair and any just reason the unless has been prosecution substantially prejudiced See, reliance the 2.1 plea. defendant’s § Standards Relating to Pleas of Guilty. these to
Applying us, precepts case before we are satisfied that the order district court should be affirmed because the interrogation of the defendant to his prior sentenc raises a ing serious as question to whether defendant was murder in the second degree. Minn. St. provides: 609.19
“Whoever causes the death with intent aof to human being effect person another, death such or but without premeditation, murder in the second degree and to sentenced imprisonment for not more (Italics than 40 years.” supplied.) him
According questions defendant’s responses put dis- decedent, trict court and the county attorney, offered stranger, him a ride in his automobile as he was Lea, home in Albert walking Minnesota, at about 3 a. m. on May 1963. Notwithstanding the un- usual circumstances of this meeting, defendant, as related by drove they around the for while countryside until the events transpired culminated in the killing. questions These and answers appear from interrogation:
“Q. man, You didn’t plan to kill did this you? Warren, State v. 278 Minn. 153 N. W. 273. In case this Project court cited A. B. A. Justice, Minimum Standards for Criminal (tentative Relating Standards Pleas Guilty draft), § 2.1. Searles, 142 N. W.
“A. I didn’t have no intentions to.
“Q. You didn’t know him before that night, did you?
“A. No.
ij; :{$ ‡ ‡ ‡ “County hammer, You Attorney: pulled back aimed the you gun head, at shot, his and you is that correct?
“The Defendant: Yes.
“Q. Did intend to kill you him?
“A. No.” Other answers that, defendant do by suggest, though establish, not they if his statements are trustworthy, his actions in so far as caused they victim’s death revulsion, were the of fear or product or both.
In light of this testimony defendant in which he specifically denied intent to kill the decedent, belief, it is our particularly view extraordinary occurred, circumstances under which this homicide court’s that trial discretion in was exer- properly cised unless it will result in serious prejudice state.
The state contends it will be prejudiced if this is vacated because in the time that has since the was inter elapsed the United posed Supreme States Court has declared in accepted Arizona, Miranda v. 384 U. 86 S. Ct. 16 L. ed. S. (filed 13, 1966), that, L. R. June in the A. absence waiver, statements made aby defendant while in not custody are admissible him when he has been against notified before their making counsel, of his if right public expense necessary; right maintain silence if he the fact prefers; statement any given him used in evidence him. Prior to the decision in against Miranda, it was the of the Minnesota Court that fail position Supreme ure to factor be considered the trial court give warning such all other relevant whether a con together deciding circumstances warning fession was or was not but that failure to voluntary, give not in and of itself bar the use in evidence. given did statement 828. In Johnson v. Taylor, 1772, 1781, 16 ed. New 384 U. S. Ct. L. Jersey, S. *9 (filed 882, 20, 1966), 892 States Court de- Supreme June the United clared that Miranda rule to cases commenced after” “only applies the decision in Miranda was announced. the plea
If merits, is vacated and case is tried on the application Miranda rule would the state be- seriously prejudice it cause would adherence to an require exclusionary which did principle not exist when the plea of was tendered and and accepted would not have been if been tried the case had at that applied time.
Many respected courts have held that the Miranda rule does not apply to retrials of a 13, case tried on the merits June 1966.14 before (Del.)
In (2d) 262, Jenkins v. State 274, 230 A. the court said: “* * * it logical think neither nor We reasonable that the retrial should conducted under rules different from those when prevailing * ** were novo, cases tried the first time. de Although a new trial is case; new it is continuation of the case until original the judg- ment is final.” 129,
In State Vigliano, 51, 66, (2d) 137, v. 50 N. the New J. 232 A. said: court Jersey
«* * * take to ‘begun’ [W]e ‘commenced’ have same sig- i.e., nificance, refer those cases or trials which were initiated or in which the first was taken after the This view accords step date. stated with a criminal i.e., commonplace law in this an order country, trial a new as an incident of a reversal a conviction on appeal simply amounts a continuance same case toward final looking of either acquittal or conviction.” Other courts taken a different of this matter.15In v. People have view 14 262; (Del.) (2d) State, 465, Jenkins v. State 230 A. Sims v. 223 Ga. 65; 439, (2d) (2d) (2d) 746; People Worley, 156 37 S. E. v. 227 E. Ill. 51, (2d) 129; Vigliano, Burnley Commonwealth, v. 50 N. J. 232 A. 356, (2d) 108; Warden, Prison, E. 208 Va. 158 Hall S. Nev. State 83 446, (2d) 425; State, 11, App. Nev. 434 P. Boone v. 3 Md. 237 A. 787; State, 351, See, Richardson, Murphy v. 221 Tenn. 426 W. S. Application Retrials, Criminal Procedur e —Miranda: L. Rev. 863. S. C. Shoffner, State v. 31 Wis. 143 N. W. Creech (2d) 245; Brock, (Ky.) Commonwealth S. W. Ariz. (2d) 9, 21, P. Rptr. 67 Cal. 59 Cal.
Doherty, 185, the court said: to the of the Constitution forth-
“We cannot a truncated version apply ra- it second We cannot is a trial. coming proceeding merely because for defend- violative of Miranda tionally forbid the use statements use for those first such tried after June sanction ants tried at time nullified proceeding.” after earlier believe, seeks we where convicted defendant
But at least in situations in favor a trial to the trial court’s discretion by appealing merits to be test of applied voluntariness guilty, do if to accepted be that in force when the should order vacating otherwise would be so the state that the prejudicial could not be justified. *10 the of the state accepted, was case As the time the guilty plea far of his entirely consisted almost admissions. So this defendant against informed, to the we was no other evidence available as have been there this trial of at is available now. If the equally that time which not state on to be the same rules evidence governed by case the merits is as have been to the the confession would pertaining voluntariness we are the not been proffered accepted, had applied denial of the the trial determination that justified accepting judge’s would but not injustice, relief cause manifest requested by petitioner otherwise. decision, that the trial court the at its considered claim arriving
In its was concluded for the voluntary purposes confession not the it on motion that not. It is for us decide ruling unnecessary the was of defendant were or were not volun- this time whether the admissions at 601; Doherty, (2d) 9, Rptr. 429 (2d) People v. 67 59 416 P. Cal. Cal. 305; 177; Ruiz, (2d) (2d) State v. 49 Hawaii 421 P. P. McCarther, 290; (2d) Jackson, 416 197 Kan. P. C. (2d) 236; People Sayers, App. Div. N. Y. S. 155 S. E. ( 481; J.) Supp. v. Pinto D. N. 259 F. States ex rel. Pierce United 472; Cir.) Virgin (3 of the 374 F. Government per curiam affirmed (5 Cir.) (3 Cir.) v. United States 378 F. Gibson Islands Lovell F. in a so tary plea. constitutional sense as to vacation justify determination proceedings court in the district postconviction not does if to trial on the foreclose this it should arise incidental issue merits.
Affirmed.
Peterson, Justice (dissenting). decision, dissent,
The essence of the from I which that respectfully below court justified second-degree a conviction for murder de- killing admitted of decedent on the sole that ground fendant in had pleading made a statement of fact which would negate existence of an essential agree element of the crime. I with or, made, principle accepted should not be if should withdrawn the court or if motion of counsel such case, were the but I do agree not that this is the case.1 Defendant admittedly killed the Reverend Berner Nyjordet 23, 1963. Decedent was shot in the head May pistol pointblank and stabbed range several times in head and chest. Defendant was murder, indicted first-degree for essential elements of originally which death; include both and an premeditation intent to that in- effect but dictment was replaced by charging dismissed and information murder, lesser crime an intent second-degree only to effect death, not element. Defendant premeditation,3 is essential acknowl- explained had edges counsel him and in some “very carefully crimes, detail” the essential elements of both cannot so it be said from did this record that the nature and defendant understand elements of the offense to pleaded which he guilty.
Defendant, concludes, made a statement of fact majority negating 1Nor, Washington County District apparently, did the Court of which had petition prior corpus proceeding. denied defendant’s in Our habeas reversal Tahash, Chapman and remand in ex rel. 152 N. W. evidentiary hearing was to afford an as to such other issues raised original defendant as could not be determined from record. 609.185(1). Minn. St. 3Minn. St. 609.19. when, kill with his contemporaneous element of intent the essential less to he did not have that intent. There is he said that guilty, statement, read in isolation however, than when merely appears statement, if considered I that such from his other statements. submit context, of the nonessen- in its full reflects more than a disavowal nothing in significance is of a disavowal which tial element of premeditation, of a indictment and original acceptance dismissal of justifying the basis statement which constitutes to a lesser crime. The indeed, is, interrogation to the response court’s decision his trial of the court:
“Q. plan man, you? didn’t to kill this did You [By court] to. “A. I didn’t no have intentions
“Q. You didn’t know him before that did night, you?
“A. No.
“Q. thought thought came to The time decided or you first —the right? you, your something mind he that irritated was when said girl’s he name. call— my “A. When mentioned about told me to He (Italics just supplied.) think of me as that is what he girl, said.” your think, is, I meaning equally apparent real defendant’s statement the following attorney: from with the county colloquy went into the “County you country Nyjordet, When Attorney: did intend to rob him? you
“The Defendant: No.
“County Attorney: Did [*] you [*] intend to rob [*] [*] [*] him? got Not when I car. “The Defendant: you were car, but Attorney: got Not when “County you after you country Hayward out in the did intend rob hinü “The Defendant: Yes. intend to kill him? Did you
“County Attorney: No. Defendant: “The head, you shooting didn’t knew were You Attorney:
“County you? (Italics Defendant: Yes.” supplied.)
“The
27 It a is read defendant’s isolated statement unrealistic to into utterly of his detailed ac- negation that essential element when considered with count the shot stabbed decedent. of circumstances in which he We have in the the to cause death —even past held that intent unequivocally circumstances be determined as fact premeditation may from such the — of armed and the being method in which the occurred. State killing v. 1, (2d) 47; Hare, 281 161 v. Minn. State 278 Minn. Campbell, 820; Tahash, N. ex 154 W. State rel. Fruhrman Ware, N. State 146 W. 267 Minn. 126 W.N. (2d) 429; 262 Minn. As it Gowdy, W. Hare, so 405, 408, stated in succinctly 154 N. W. (2d) 820, 822:
“* ** shots, loaded revolver three Aiming person firing all of which strike target, the of surely inference permits premedita- tion with intent to kill.” course,
I do not mean to that suggest, is properly accepted, however inference of inescapable probable might be were the evidence submitted to a issue, trial of the if the disputed submit, defendant chose however, to assert his I categorically innocence. the whole of defendant’s statements fact neither constitutes a clear and unequivocal declaration of such innocence nor raises serious doubt toas of the crime guilt admitted guilty.
2. The well have practical result of defendant’s ultimate acquittal. against Crucial evidence defend- ant is apparently contained in a “confession” taken without the giving of the warnings and of counsel as availability required by Miranda rule.4 Because the conviction occurred to the effective prior date Miranda, the confession would not have been inadmissible on that ground. But whether or not trial its post-Miranda admissibility sustained, would be ultimately is most I agree uncertain. would Although with the court holding is to admissibility confession Arizona, Miranda v. 384 U. S. S. ed. Ct. L. 10 A. R. L. standards, this does not fully according pre-Miranda
be determined ultimate decision for the state possible prejudice, from safeguard Court. Supreme United States make but for the not for us to conviction. would reverse and reinstate I *13 AND OTHERS. LONGSETH OF WENDY IN RE WELFARE HERMAN E. BEHRENDS COUNTY, WISCONSIN. COLUMBIA (2d) 365. 162 N. W. 8, 1968 No. November Skjervold, for Paul A. appellant. Gill, Leitsch, J. Kermit A. and William F. Kelly,
John respond- ent.