*1 rehearing clearly wrong. tion after The Court clearly support evidence instead is sufficient findings.
Affirmed. v. William G. appellee, Nebraska, Hill, State appellant. Filed November 1979. No. 42513.
Rosenberg Yungblut Stephen Yungblut, & and K. appellant. Attorney Ralph Douglas, General, Paul L. H. appellee. Gillan, for
Heard before Boslaugh, McCown, Clinton, JJ. White, Hastings, Brodkey, J. Brodkey, (hereinafter defendant, William G. re- Hill), appealed has to this court from a ferred of his motion to withdraw nolo con- denial degree assault. affirm. tendere to first sexual We degree charged July first with Hill was On to com- intent with with assault assault sexual charge hearing sodomy. preliminary on said A mit *2 1977, found 16, the court and Hill committed December held on probable was that said existed cause Court to the District bound over He was offenses. and February 1978, he arraigned 1, time at which on guilty plea Trial counts. to both of not a entered April 24, 1978, April a hear- 26, 1978. On for set was ing change by Hill for motions made held on was continuance, motions were which and for of venue bargain, day, pursuant plea to a Later that denied. guilty plea count Hill to the first of not his plea withdrew entered a charge, to that of nolo contendere and following dismissed. count was which the second post- Sentencing 7, 1978, but was set for June was subsequent poned mo- Hill’s desire and because of sociopath proceedings. Al- to initiate sexual tion though proceedings overruled, motion was his upon motion. the court’s own initiated were later pursuant socio- to sexual Hill was examined legal path of fit definition and found to within act by sociopath. retained New counsel was a sexual hearing 1978, 4, had on a Hill, and on October plea contendere, of nolo to withdraw the motion denied, October then renewed on motion was which 26, again 1, 1978, 1978, On November denied. sociopath proceedings were dismissed at the sexual request. on November Hill was sentenced Hill’s imprisonment 7 to 14 for a term of from to years charge. on the validity assigns relating errors to the of four contending generally plea, contendere
the nolo intelligently voluntarily made. The it was separately specific assignments error are dis- of opinion. cussed later this principles govern in case were set which Kluge, 198 251 N. W. 2d us in State v. Neb. out 737 (1977): adopted approved “This court Relating to American Bar Association Standards Guilty of minimum Pleas standards (1971), Turner, 183 N. and has Neb. W. reference adhered those standards with to with- guilty pleas. Evans, State drawal 2.1 of 234 N. W. Section those stand- provides: ards “ ‘(a) The should the defendant court allow guilty his or nolo contendere when- withdraw upon timely defendant, motion for with- ever proves necessary drawal, cor- that withdrawal is * * * injustice. rect a manifest “ ‘(b) showing that with- the absence injustice, necessary to correct a manifest drawal may not withdraw his a defendant once a matter of nolo contendere as sentence, accepted Before the court. has been may the defendant discretion allow the court its any just reason unless fair and withdraw the *3 substantially prejudiced by prosecution has been upon plea.’ Section 2.1 also defendant’s reliance the necessary plea provides is to that of the withdrawal injustice the a defendant manifest whenever correct proves of assistance that he denied the effective was by plea counsel, or ratified that was not entered the involuntary un- defendant, or the the knowing, that prosecution failed abide or has to that the agreement. a occasions that held on numerous “This court has guilty or nolo con- to of motion withdraw only the defendant if be sustained tendere should necessary a mani- proves correct is to withdrawal grounds es- injustice for withdrawal and the fest convincing State evidence. clear tablished (1975); Freeman, W. 226 N. v. W. 2d 602, 211 N. Daniels, 190 Neb. State (1973); 187 N. W. Johnson, 187 Neb. State v. is nolo contendere or of When a charge knowledge the the with full
made permitted plea,
consequences of the
it will not be
to
fraud, mistake,
absence of
be withdrawn
the
procurement.
improper
used in its
other
means
Williams, 191
(1969).” 2.1 of the Bar
The comments to section American Relating Guilty Association Standards Pleas of prove it the evidence make manifest clear injustice must be more than a mere failure procedural requirement. example, meet “For alleged a defendant who he was unaware of the charge extremely pleaded to which he would find it grounds if difficult show withdrawal the rec- judge, required by ord established that sec- charge. 1.4, tion him advised On the other judge hand, if the record indicated that did not defendant, so advise the would still tending put have to in additional evidence to show charge.” that he was not otherwise aware (a) (Emphasis (ii), Comment, section 2.1 Relating Guilty. ABA Standards to Pleas of Such comment makes it clear the burden of proof injustice question upon on the of manifest rests foregoing principles the defendant. With specific assignments mind, we now examine Hill’s error. injustice
Hill first contends that manifest resulted when trial court failed to advise him of the right jury waiver of his constitutional to a trial. The record clear that the trial court did indeed fail to entry so advise Hill of at the time of his plea. nolo However, contendere failure, require itself, in and of does not us to alter the deci- sion of fact, the trial court on Hill’s motion. *4 we reject grounds. First, this contention on two we be- proof lieve Hill failed to meet the burden of which is The record is injustice. to show manifest absolutely right clear Hill was aware his to a entry jury of the nolo con- at the time of his trial plea. 2.1, ABA As the comments to section tendere supra, indicate, Standards, Hill has the burden proving of this of the waiver that he was unaware prove right. Hill failed to clear believe that We convincing unaware of the evidence that he was Having jury trial. failed of his to a waiver proof, Hill failed establish meet his burden of manifest Bond, injustice See, also, to this issue. as (4) Guilty Bargaining Pleas, §§ 7.11 Plea (5), (1978). p. 325 for a second likewise this contention
We adopted strict, rit court has never reason. This approach re for trial courts to follow when ualistic rights viewing a defendant’s constitutional before guilty plea. accepting Turner, 186 State v. Neb. (1971); Kluge, supra; 424, 183 2d 763 State v. N. W. Fowler, 647, 271 N. W. State v.
(1978); Curnyn, State v. N. W. following adopted the standard We have pleas: accepting guilty reference to “Before with sufficiently judge expected guilty ex he amine the defendant stands the nature of the to determine whether under charge, possible penalty supra. plea.” Turner, and the effect of his Relating Hill the ABA Standards contends Guilty are the minimum standards which Pleas of agree. controlling isHill herein. that we With must contention that the court likewise correct inform a defendant entry nolo con- of a by jury, right to trial will waive a tendere words. in those exact and that he was not informed previously stated, information However, given strict, manner. in a ritualistic need not be represented com- record discloses that proceedings. stages petent It is counsel at all pursuant nolo clear Hill entered his contendere plea bargain. that time: at counsel stated to his His bargain, [Mr. Hill] hearing feels he “After *5 thing him, to avoid to do be the best that it would * * like- matter, trial court *.” The a trial acceptance nolo con- of the Hill that informed wise tender e will “* * * you operate follows: as would penalty subjecting yourself to the all to the be adjudged guilty by you been had a same extent if jury guilty by jury en- a trial or had or after found guilty.” voluntary intelligent tered a (Emphasis the affirmative waiver While jury might right have been elicited in trial of a possible, of the the substance most direct form the proceedings of such indicates a waiver notwithstanding Hill, his claim to con- made trary. assignment first
We therefore Hill’s error. of the trial court
Hill next contends that failure possibility sociopath of sexual to inform him of being against proceedings him amounted instituted injustice. particular, to manifest relies on (iii) (c) supra, Standards, of the ABA section 1.4 accept provides: “The court should not which nolo contendere from defendant addressing personally first without * * * * * * (iii) (c) informing him: when the charged is one for which a offense different or addi- punishment tional that an is authorized reason of the fact previously the defendant has been convicted of may offense, this fact be established after present previ- action if his he has been ously thereby subjecting convicted, him to such dif- punishment.” ferent or additional clearly Such reliance is unfounded. The record sociopath proceedings establishes the sexual request. both instituted and were dismissed at Hill’s We fail to see how Hill can contend that he was un- possibility punishment aware of the of additional proceedings when initiated at re- those were quest. It is true that Hill testified he believed that proceedings the trial initiated at court’s were request. However, Hill testi- on cross-examination expressed to his counsel to fied that he had a desire proceed sociopath law, who filed under the sexual testimony such a motion on Hill’s behalf. Such knowledge possi- Hill had makes it clear that proceedings being bility sociopath insti- of sexual against 7, 1978, him, at as of June tuted least original sentencing it is true that knowl- date. While edge punishment on of the additional must be had *6 entry plea, of the the record in this the date the of is Hill had such knowl- case edge. unclear as whether knowledge
Hill did not that he had no of show proceedings entry April 1978, 24, these the date of on plea. Having of the nolo contendere failed to meet proof matter, affirm his burden of on the we must claim. the trial court as this rejecting reason for this conten- We have further assuming Hill. that the record indi- tion of Even knowledge possi- cated that Hill did not have of being bility sociopath proceedings of insti- sexual against him, inform him as to this tuted failure so In matter fact, is at best harmless error this case. sociopath proceedings the sexual were dis- at No different or addi- missed Hill’s insistence. upon punishment imposed Hill tional of these as result any proceedings. point possible out that We injected might been into this mat- error which have assuming Hill done Hill. Even ter was lacked tention, so knowledge matter, of we his con- this any may have resulted since error which connection, United Hill. see was caused Timmreck, 441 U. S. 99 S. Ct. 60 States v. (1979). L. Ed. 2d 634 the failure of the trial court next contends of the basis
to make a factual determination
injustice. Again,
charge
to manifest
amounted
also
position.
“Although
in Hill’s
find merit
we fail to
questioning
to the factual basis is
defendant as
required
enters a
the defendant
not
where
Hyslop,
331, 202 N.
contendere,
189 Neb.
State v.
nolo
satisfy
is a
itself that there
must
the court
W.
factual basis
Country,
charge.”
State v.
for the
determining
“In
2d 110
276 N. W.
exists,
for a
a factual basis
whether
interrogate
the defendant.
court
is not
pre-
Inquiry
prosecutor
of the
or examination
of the
report
Daniels,
State v.
is an alternative.”
sentence
190
(1973). Although
Neb.602,
it is
N. W.
judge
presentence
true that the trial
did not have
concerning
report
before him at the
the defendant
plea,
entry
it
of the
of the nolo contendere
is
time
report
prior
him
to the sen-
clear he had the
before
tencing.
point
section 1.6 of the ABA
We
out that
“Notwithstanding
supra, provides:
Standards,
acceptance
guilty,
of a
should
court
judgment upon
making
enter a
such
without
inquiry
may satisfy
it that there is a factual
plea.”
(Emphasis
basis for the
As we
Leger,
stated
208 N. W. 2d
(1973):
“Verification
the fact
the court
pleas
was aware
‘factual basis’
for the
presentence
reports
found
which were before
pronounced.”
the court when sentences were
Our
*7
review of the record indicates that there was indeed
charge.
factual basis for
We likewise
regard.
in
defendant’s contention
Finally,
injustice
Hill contends that manifest
oc-
curred because of the trail court’s failure to advise
rights,
him with reference to certain constitutional
Boykin
as set out in
Alabama,
238,
395 U. S.
89 S.
1709,
Ct.
(1978), where we stated: “In this court filed opinion Turner, in its 424, the case of State v.
183 N. W. 2d which case has been consistent- ly followed in this state it since was filed and is the leading authority setting forth the to be ob- tests accepting pleas guilty. case, served in In that accepted this court the test enunciated in North Alford, [400 Carolina v. U. S. 91 S. Ct. 27 L. (1970)], Ed. 2d that the standard was and re plea represents voluntary mains whether intelligent and among choice the alternative courses of open opinion action to the defendant. In the we requirement item-by-item stated: ‘This of an rights guilty plea review of constitutional on a is a strained and a too extreme construction of those upon Boy in that relied cases.’ defendant case Boykin only requires kin, as not that a intelligent voluntary be to be valid but that affirmatively record must disclose that the defend plea understandingly and volun ant entered ** * tarily. opinion Turner, In its this court requirements Boykin, spe but considered cifically litany require declined to a ritualistic item-by-item rights before review of constitutional accepting guilty plea pre from a defendant.” As clearly viously indicated, of the record es a review great pains took to de tablishes that the trial court charges, if Hill the nature of the termine understood plea. penalties involved, the effect of the No pre under the law this state. more is suggested the use of check lists cases we have vious arraignments in present to avoid difficulties such as were again. We do
in the instant case. so appearing record, in the reversible error No judgment Court must be affirmed. of the District
Affirmed. J., concurs result. Clinton, participating J., in this case. C. not
Krivosha, concurring J., in result. White, agree to enable a the record is sufficient I that of his knew of fact to find that by jury trier by tendering to trial waiving right. he was no contest conceding, Assuming, the burden but properly placed assert on a defendant be should *8 injustice, Relating prove in indicated section manifest Guilty, 2.1, Pleas of ABA Standards pointing simply burden is satisfied to a record silent of a constitutional as to the waiver right. Otherwise, be reconciled the decision cannot Douglas Boykin language Justice with the Mr. Alabama, 89 S. Ct. 23 L. Ed. 395 U. S. rights in- constitutional 274: “Several federal place takes when a volved a waiver * * * trial. is entered a state criminal by jury. Second, Duncan v. is the to trial Louisiana, 491. 391 U. S. 88 S. Ct. 20 L. Ed. * * * presume a of these three We cannot waiver rights important record.” federal from a silent (Emphasis join JJ., in this concur- Hastings, McCown
rence. Bank, The Omaha National Executor Ganaros, deceased, Estate of Theodore N. appellee. appellant, Koliopoulos, v. Sam Filed November 1979. No. 42351. Denenberg, appellant. Norman