STATE of Idaho, Plaintiff-Respondent, v. Gary D. MAXEY, Defendant-Appellant.
No. 20812.
Supreme Court of Idaho
April 21, 1994.
873 P.2d 150
Boise, February 1994 Term.
CONCLUSION
We hold that the district court properly exercised its discretion in denying Wersland‘s motion to strike from the presentence report the statements of the surviving victims of the auto collision and their parents, and that the court gave the appropriate weight to such statements at sentencing. We further hold that the district court did not abuse its discretion in weighing Wersland‘s character and history against the nature of the offense and that based upon the facts of this case, the sentence was not unreasonable. Finally, we hold that the district court did not abuse its discretion in denying Wersland‘s motion under
MCDEVITT, C.J., and BISTLINE, JOHNSON and TROUT, JJ., concur.
Larry EchoHawk, Atty. Gen., Michael A. Henderson, Deputy Atty. Gen., Boise, argued, for respondent.
JOHNSON, Justice.
This is a driving under the influence (DUI) case. The primary issues presented concern whether the state should have been allowed to use two prior misdemeanor DUI convictions as the basis for the felony DUI charge in this case. We conclude that the state was not precluded from relying on the two prior convictions.
I.
THE BACKGROUND AND PRIOR PROCEEDINGS.
In June 1990, a Lewiston police officer arrested Gary D. Maxey for DUI (the 1990 case). The state charged Maxey with felony DUI on the basis of two prior DUI convictions.
In 1987, Maxey pleaded guilty to a misdemeanor DUI (the 1987 case). In 1988, Maxey pleaded guilty to a misdemeanor DUI (the 1988 case). In 1989, Maxey was again arrested for DUI (the 1989 case). In the 1989 case, the state originally charged Maxey with felony DUI based on convictions in the 1987 and the 1988 cases. As the result of a plea agreement, Maxey resolved the 1989 case by pleading guilty to another misdemeanor DUI.
In the 1990 case, the state originally charged Maxey with felony DUI based upon his prior convictions in the 1987 case and the 1988 case. Maxey challenged the use of these convictions for enhancement purposes, and the trial court granted Maxey‘s motion to dismiss the 1988 conviction as an enhance
Maxey filed motions in limine and to dismiss challenging the use of the convictions in the 1987 and the 1989 cases as a basis for charging him with a felony in the 1990 case. Maxey asserted that in the 1987 case the guilty plea was taken in violation of Maxey‘s right to counsel and in violation of the state and federal constitutions and
Maxey entered a
II.
MAXEY WAIVED HIS RIGHT TO COUNSEL IN THE 1987 CASE.
Maxey asserts that the state may not use the 1987 conviction to charge him with a felony in the 1990 case because he did not knowingly and intelligently waive his right to counsel in the 1987 case. We disagree.
A. MAXEY HAD THE RIGHT TO APPOINTED COUNSEL, IF HE WAS INDIGENT.
We first note that pursuant to
If the offense has a permissible penalty of imprisonment which will be considered as possible punishment by the court, or if the conviction of the offense could cause a subsequent conviction to be enhanced from a misdemeanor to a felony, then or in either of such events the defendant shall be advised that he has the right to court appointed counsel at public expense if [the defendant] is indigent. If the defendant is found by the court to be entitled to court appointed counsel, the court shall appoint such counsel unless the defendant voluntarily waives [the defendant‘s] right to counsel.
When Maxey pleaded guilty in the 1987 case,
B. MAXEY WAIVED HIS RIGHT TO APPOINTED COUNSEL.
Maxey contends that he never validly waived his right to counsel under
A person who has been appropriately informed of [the person‘s] right to counsel may waive in writing, or by other record, any right provided by this act, if the court concerned, at the time of or after waiver, finds of record that [the person] has acted with full awareness of [the person‘s] rights and of the consequences of a waiver and if
the waiver is otherwise according to law. The court shall consider such factors as the person‘s age, education, and familiarity with the English language and the complexity of the crime involved.
In distinction,
Before a plea of guilty is accepted, the record of the entire proceedings, including reasonable inferences drawn therefrom, must show:
(1) The voluntariness of the plea.
(2) The defendant was informed of the consequences of the plea, including minimum and maximum punishments, and other direct consequences which may apply.
(3) The defendant was advised that by pleading guilty the defendant would waive the right against compulsory self-incrimination, the right to trial by jury, and the right to confront witnesses against the defendant.
(4) The defendant was informed of the nature of the charge against the defendant.
(5) Whether any promises have been made to the defendant, or whether the plea is a result of any plea bargaining agreement, and if so, the nature of the agreement and that the defendant was informed that the court is not bound by any promises or recommendation from either party as to punishment.
If
In State v. Currington, 108 Idaho 539, 540-41, 700 P.2d 942, 943-44 (1985), the Court ruled that the authority of a trial court to allow post-conviction bail to a convicted criminal made ineligible for bail by a statutory enactment is a matter of procedure rather than substantive law. See also State v. Yoder, 96 Idaho 651, 654, 534 P.2d 771, 774 (1975) (
“Substantive law prescribes norms for societal conduct and punishments for violations thereof. It thus creates, defines, and regulates primary rights. In contrast, practice and procedure pertain to the essentially mechanical operations of the courts by which substantive law, rights, and remedies are effectuated.”
108 Idaho at 541, 700 P.2d at 944 (quoting from State v. Smith, 84 Wash.2d 498, 527 P.2d 674, 677 (1974) (en banc)).
Applying this distinction to
We reject Maxey‘s argument that the conviction in the 1987 case was defective because the trial court failed to comply with
At the time of Maxey‘s arraignment in the 1987 case, and before Maxey pleaded guilty, the trial court asked Maxey if he wished to fill out an application for a court appointed lawyer to represent him. Maxey said “no.” The trial court then asked Maxey if he gave up his right to have a public defender. Maxey said “yes.” The trial court accepted this as a waiver of Maxey‘s right to have counsel appointed.
Maxey contends that the trial court should have advised Maxey not only of his right to counsel, but also of the dangers and disadvantages of representing himself. In State v. Clayton, 100 Idaho 896, 606 P.2d 1000 (1980), the Court stated that, where the defendant wanted to represent himself at trial, the decision amounted to a waiver of the right to counsel, and “the defendant should be made
The dangers of self-representation at trial are obvious. The intricacies of the procedures, the rules of evidence, and the law are sufficient to justify extra care in making sure the defendant appreciates the difficulties in conducting a trial without the assistance of a lawyer. Certainly a guilty plea is an important part of a criminal proceeding. McMann v. Richardson, 397 U.S. 759, 769, 90 S.Ct. 1441, 1448, 25 L.Ed.2d 763, 772 (1970) (“to plead guilty ... frequently involves the making of difficult judgments“). We are not convinced, however, that the judgments that confront a defendant who pleads guilty in a misdemeanor case are sufficiently difficult to warrant a requirement that the trial court must advise the defendant of the problems inherent in entering a plea without counsel.
III.
MAXEY‘S GUILTY PLEAS IN THE 1987 AND THE 1989 CASES WERE NOT ENTERED IN VIOLATION OF THE STATE OR FEDERAL CONSTITUTIONS, OR I.C.R. 11.
Maxey asserts that in the 1987 and 1989 cases he did not plead guilty knowingly, intelligently, and voluntarily, as required by the United States Constitution, the Idaho Constitution, and
We first note that this Court has distinguished between the requirements for accepting guilty pleas in felony cases and those in misdemeanor cases. In State v. Carrasco, 117 Idaho 295, 297-98, 787 P.2d 281, 283-84 (1990), the Court determined that the defendant‘s guilty pleas to two felonies were not entered knowingly, voluntarily, or intelligently. In Carrasco, the Court referred to the constitutional rights waived by a guilty plea stated in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and the requirements of
A defendant may also appear, answer and have judgment entered through an attorney, who shall either appear in person or shall file, at or before the time for appearance, a written appearance and answer on behalf of the defendant. The court may, in its discretion, require the presence of the defendant at any stage of the proceeding not otherwise required by these rules.
The procedures for advising a defendant in a misdemeanor case of the defendant‘s rights are contained in
At the first appearance of the defendant before the court on a uniform citation or sworn complaint, the court shall inform the defendant of [the defendant‘s] constitutional rights and the rights provided in the Idaho Criminal Rules, and these rules. Such advice of rights may be announced to all defendants at each session of court at the commencement of the court hearing, rather than advising each of the defendants individually when they come before the court.
In the 1987 case, the transcript of the session of court where Maxey was arraigned indicates that pursuant to
In Maxey‘s sentencing in the 1987 case, which took place in a separate proceeding seven days after Maxey‘s guilty plea, the trial court informed Maxey:
Let me advise you of something else, though so you can beware of it. You get a second [DUI] now in the State of Idaho and you‘re looking at - I mean if it‘s within five years of the date of this one, you‘re looking at least ten days in jail, you could go for a year. You‘re looking at a fine of up to two thousand dollars, your driving privileges would have to be suspended for at least six months and could be for up to a year and a third such offense within five years is a felony and you could actually go to prison for it.
The day after this hearing, the clerk of court sent a “Quicki-Note” to Maxey indicating that Maxey had not signed a “Notification of Penalties Form” in court. The “Quicki-Note” asked for acknowledgement that the magistrate judge had notified Maxey of future penalties if he were convicted of DUI within five years. Maxey admits that he signed three copies of the notification of penalties form and sent them back to the court.
In 1987,
Shall be advised by the court in writing at the time of sentencing of the penalties that will be imposed for second or subsequent [DUI] violations ..., which advice shall be signed by the defendant,....
[T]he court shall at or before the time of sentencing or granting a withheld judgment deliver to the defendant a written notice advising the defendant as to the penalties that may be imposed for subsequent [DUI] violations.... The notice shall be signed by the defendant and retained by the court,....
Neither the statute nor the rule require this advice to be given before the court accepts a plea of guilty. Although the trial court did not strictly comply with the requirement for written notice of subsequent penalties signed by Maxey at or before sentencing, Maxey admitted he received, signed, and returned the written advice shortly after his sentencing, and certainly before any of his subsequent DUI violations that are at issue in this case. Therefore, we conclude that the error, defect, irregularity, or variance did not affect Maxey‘s substantial rights and should be disregarded as harmless.
THE COURT: When you appeared here last year, 1987 on your last DWI and that was in what, in October?
A: Yes, your Honor.
THE COURT: The judge explained to you what the penalties were for future [DUI‘s], didn‘t they?
A: Yeah.
THE COURT: Do I need to go over it again?
A: No.
We decline Maxey‘s invitation that we address the significance of the trial court‘s failure in the 1987 case to use a form in compliance with
We conclude that the record of the entire proceedings of the 1987 case, including
B. THE 1989 CASE.
In the 1989 case, Maxey was awaiting a jury trial on a felony DUI, when the prosecutor and Maxey‘s attorney approached the trial court with a plea bargain by which Maxey would plead guilty to a misdemeanor DUI. Before accepting Maxey‘s plea, the trial court advised Maxey of his rights and asked Maxey if he was prepared to enter a plea to the misdemeanor charge. Maxey pleaded guilty.
In addition to Maxey‘s general assertions that his 1989 guilty plea was not knowing and intelligent, Maxey asserts that the trial court specifically did not inform him of: (1) his right to a jury trial, and (2) the consequences of his guilty plea with regard to future DUIs.
Concerning the lack of advice of the right to a jury trial, we acknowledge that at the plea hearing, the trial court informed Maxey: “You have a right to go to trial.” Although the trial court did not inform Maxey of a right to a “jury trial,” we cannot ignore that this advice came at a time when Maxey was scheduled for a jury trial on the felony DUI charge that was reduced to a misdemeanor by the plea bargain. In this context, it is disingenuous for Maxey to contend that he did not understand that he had a right to a jury trial when he pleaded guilty to the misdemeanor DUI.
At the sentencing hearing in the 1989 case the trial court informed Maxey as follows:
THE COURT: Do we have those advice - advice of future penalties forms?
Well, I suppose I can go ahead before those forms come back. I‘ll accept this plea agreement.
Thanks. Thank you.
Sign it.
Mr. Maxey, it‘s my duty to inform you that you have been - you have just pled guilty to an enhanced DUI, that you did previously -
MR. CLARK: Judge. That‘s unenhanced.
THE COURT: Unenhanced DUI, and the maximum possible penalty for that you know.
A second DUI violation within five years including withheld judgments is a misdemeanor, and for a second DUI within five years you can be sentenced to jail for at least - you will be sentenced to jail for at least ten days and can be sentenced for up to one year in jail. You could be fined up to two thousand dollars for an enhanced DUI and you shall have your driving privileges suspended for at least six months but not more than one year following your release from jail.
A third DUI violation within five years including withheld judgments is a felony and you shall in that situation be sentenced to the custody of the Idaho State Board of Corrections for not more than five years, but if the court imposes a jail sentence instead of the state penitentiary it shall be for a minimum period of not less than thirty days, and also you may be fined up to five thousand dollars and you shall have your driving privileges suspended for at least one year and not more than five years after release from imprisonment.
So you should be aware of those future penalties. And I‘m going to ask you to sign this form which contains those penalties that I‘ve just read to you.
We‘ll just leave those at the clerk‘s desk and perhaps if you‘d step over there after sentencing and sign that form, we‘ll take care of it in that way.
This satisfied the requirements for written advice of subsequent DUI penalties as specified in
We conclude that the record of the entire proceedings of the 1989 case, including reasonable inferences drawn from this record, show that Maxey‘s guilty plea was made knowingly, intelligently, and voluntarily and that the trial court complied with the requirements of
CONCLUSION.
We affirm the trial court‘s denial of Maxey‘s motions in limine and to dismiss.
MCDEVITT, C.J. and HART, J. Pro Tem concur.
FULLER, Justice Pro Tem, dissents.
I concur with the majority opinion as to the 1989 DUI conviction but dissent as to the 1987 DUI conviction.
In my view, the majority opinion should have addressed the more intricate questions concerning Maxey‘s right to private counsel and waiver of that right under the United States Constitution.
In State v. Jennings, 122 Idaho 531, 533, 835 P.2d 1342 (Ct.App. 1992), the court of appeals did address these questions, but concluded from the record defendant had waived his right to retained counsel in a prior DUI misdemeanor case. This court denied a petition for review. The view adopted in Jennings should be re-examined, because it presumed a defendant waived the right to private counsel based on defendant‘s knowledge of his rights, his failure to claim he wanted to be represented, and a silent record that shows no express waiver.
The Jennings view of “presumed waiver” is inconsistent with well established constitutional principles. “A defendant who pleads guilty is entitled to the benefit of counsel, and a request for counsel is not necessary.” Rice v. Olson, 324 U.S. 786, 788, 65 S.Ct. 989, 991, 89 L.Ed. 1367 (1945). “Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not a waiver.” Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962). While these cases deal with court appointed counsel, the principles should apply equally to a waiver of private counsel.
No proceedings may take place prior to the appointment of counsel or until the defendant has had a reasonable period of time to obtain counsel, or unless the defendant waives the right to counsel. (Emphasis added.)
This rule applies to misdemeanor cases to the extent it is not in conflict with specific rules regarding the processing of misdemeanor charges.
Like Jennings, the transcript in this case shows the magistrate failed to obtain an express waiver of Maxey‘s right to private counsel in the 1987 proceedings. The transcript shows:
THE COURT: Do you give up your right to have a public defender this morning, Mr. Maxey?
A. Yes.
THE COURT: Okay. I‘ll note that waiver in your file then. You can hire a lawyer to represent yourself, whatever you‘d like to do, okay?
(T. p. 14, ls. 9-15.)
The magistrate‘s clear message to Maxey is that he still had a right to private counsel. The absence of legal counsel‘s guiding hand to assist Maxey is shown by a later exchange between Maxey and the magistrate:
THE COURT: Okay. Do you understand that your giving up all your rights except your right to appeal your sentence if you‘re not happy with it. And you understand if you have any defenses to DWI you‘re giving those up today, also?
A. What‘s that mean?
THE COURT: Well, I‘m not allowed to go through police reports before I come in here so I don‘t know -
A. Oh.
THE COURT: Anything about your case.
A. Oh. (T. p. 16, ls. 9-20)
In my view, the magistrate did not comply with the recognized standards for waiver of
“The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused - whose life or liberty is at stake - is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.” To discharge this duty properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge‘s responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.
332 U.S. at 723, 68 S.Ct. at 323, 92 L.Ed. at 320 (citations omitted) (emphasis added).
The “colloquy” in this case, where the defendant merely responded “yes” to the magistrate‘s question of whether he gave up his right to “have a public defender this morning“, is precisely the type of bare-bones waiver that Von Moltke cautioned against so long ago. That colloquy is insufficient to meet the state‘s burden of showing that the waiver was knowing and voluntary. State v. Wuthrich, 112 Idaho 360, 732 P.2d 329 (Ct.App. 1986).
Two critical components are entirely lacking from the 1987 waiver: (1) a knowing waiver of the right to private, retained counsel; and (2) warnings that would impart an “apprehension” of allowable enhanced punishments that might accrue in the future.
In my view, when in 1987 the magistrate obtained Maxey‘s plea of guilty without an express waiver of his right to private counsel, it was an uncounseled plea to a misdemeanor offense which might be used later to enhance an offense to a felony. Such a plea is not valid for all purposes and constitutes a violation of the
BISTLINE, J., concurs.
BISTLINE, Justice, dissenting.
Although I concur in the partial dissent of Fuller, J. Pro Tem, I write separately to dissent on additional grounds with regard to the 1987 conviction because I believe that the majority should have recognized the violation of Maxey‘s statutory rights. As Judge Fuller points out in his persuasive dissent, the majority opinion ignores the more complicated constitutional questions of waiver of counsel for the 1987 conviction. The basis upon which the majority purports to duck these questions is its conclusion that the sufficiency of the waiver of Maxey‘s right to counsel in the 1987 case is measured not by statute or the state or federal constitutions, but rather merely by
Maxey‘s 1987 plea was taken in clear violation of
In 1987, along with all other defendants present for the trial court‘s initial mass advisement, Maxey was told by the court the following: “You have a right to engage counsel, that‘s a right to hire a lawyer and have that lawyer speak for you and represent you in all stages of these proceedings.” Later, when tendering his plea of guilty, the following exchange took place between Maxey and the court:
COURT: Do you wish to fill out an application for a court-appointed lawyer to represent you in this?
MAXEY: No.
COURT: Do you give up your right to have a public defender this morning, Mr. Maxey?
MAXEY: Yes.
COURT: Okay. I‘ll note that waiver in your file then. You can hire a lawyer to represent yourself, whatever you‘d like to do, okay?
MAXEY: Yeah.
The Court then twice inquired if Maxey had any questions about his rights:
COURT: Okay. Do you understand all of your rights that I went through at the beginning of court this morning?
MAXEY: I think so, yeah.
COURT: Okay. Well, Mr. Maxey, if you have any questions for me about your rights or what you are charged with or anything up this point in time that I‘ve explained about DWI‘s that you don‘t understand?
Maxey asked the Court why his bond was so high, the court explained, and then the following exchange took place:
COURT: Well, any other questions other than why your bond was so high? All right. Mr. Maxey, let‘s go back to the citation. Then I have a citation from the eleventh of October alleging operating a motor vehicle under the influence. To that charge how do you wish to plead today, guilty or not guilty?
MAXEY: Guilty.
COURT: Okay. Do you understand that you‘re giving up all of your rights except your right to appeal your sentence if you‘re not happy with it. And you understand if you have any defense to DWI you‘re giving those up today, also?
MAXEY: What‘s that mean?
COURT: Well, I‘m not allowed to go through the police reports before I come in here so I don‘t know-
MAXEY: Oh.
COURT: Anything about your case.
The absence of any particularized findings is a clear violation of
This is the only dialogue between the magistrate and Maxey concerning Maxey‘s waiver of counsel. Under
I.C. § 19-857 , before Maxey could waive his right to court appointed counsel1 the court was required to find of record that he was acting with full awareness of his rights and of the consequences of a waiver. In making this finding it was incumbent upon the court to consider such factors as Maxey‘s age, education, and familiarity with the English language and the complexity of the crime involved. The above quoted dialogue clearly shows that the magistrate failed to inquire of Maxey concerning any of the factors enumerated by the statute - or any other factors - to determine whether Maxey was acting with full awareness of his rights and the consequences of his waiver.
State v. Maxey, 125 Idaho 516, 518, 873 P.2d 161, 164 (Ct.App. 1993).
Despite the clear requirement for such a finding in
All of the cases that the majority points to in support of its reasoning involved genuine
Faced with a clear statutory violation previously recognized by the Court of Appeals, the majority in this case manufactures a conflict between an on-point statute and an inapplicable rule in order to reach the desired outcome and thus hide from its duty to conduct a principled analysis. Because I am unwilling to participate in such an abrogation of responsibility, I respectfully dissent.