*1 hаrdly proof as to In gun see how this case the positively removed. We its expert add to identified custody weap in the meantime could witness as its Iowa, page (loc. cit. used fire the fatal shot. identification.” No material 1210, N.W.2d, 892.) alteration was shown. The page exhibit was properly admitted. where numerous cases
Defendant cites custody Affirmed. failure show continuous inadmis- rendered the exhibit article has All concur. Justices liquids all or cases involve sible. These easily sus- substances which other They also
ceptible undetected alteration. testimony. expert the basis for
are often of cus- a break the chain
In such cases indi-
tody, circumstances of the under the case, fatal admissi- has been held
vidual liq-
bility.
involving intoxicating
Cases
Kingsbury, 191 Iowa
uors are: State v.
Iowa, Apрellee,
STATE of
Utterback,
325; Joyner
183 N.W.
v.
involv-
case July 24, 1969. case Phillips, 118 Iowa 92 N.W. an axe which were used
involving hairs on testimony, expert
as a basis for
Hossack, 116 Iowa N.W. requires stronger such cases the rule
In custody nonprobability of
showing in this cate- gunA
alteration.
gory.
The rule followed in jurisdic
tion is paragraph found second Evidence, section page 845:
Am.Jur.2d party offering object “The article that, taking evidence must also show account,
all the circumstances into includ difficulty the ease with which
particular object or article been could have
altered, reasonably it was certain that there material nec alteration. It is not
essary object that an or article which precisely
offered in evidence should be its
the same at condition the moment played part
offer as the time when its gave rise to occurrence evidence, change in its сon
offer in but the wrought
dition not have
unjustifiable not be purposes, and must will that the exhibit sufficient moment
mislead.” *2 Sexton, Ames,
Michael appellant. for J. Turner, Gen., Atty. Richard A. William Claerhout, Gen., Atty. E. Asst. Charles Vanderbur, County Atty. and William Gibbons, County Atty., appellee. Asst. RAWLINGS, Justice.
Defendant, Sisco, Eugene Thomas found on his 698.1, Code, rape, (section 1966), as information, attorney’s charged county years ten Men’s was sentenced to Reformatory at Anamosa. appeal
On reversal, contends, urging the court erred ascertain, judgment, failing entered, voluntarily; (1) charge; (2) with knowledge penal con- (3) sequences We reverse. children, and Defendant one nine age was committed to Iowa Boys. Training School for Psychological disclosed he had testing I.Q. grade equivalent. a 5.3 Ultimately assigned dеfendant was Way the Nevada Half House. He Groth, victim, rape Mrs. became acquainted her at that insti- during visits tution, being employed. Mr. Groth February 4, 1968, apparently permission, went to the home Groth where, charged, in Ames it is the offense are here was com- with which we concerned mitted. Honor, accused, point: at one “Your de- counsel arrest of
Subsequent to years request, fendant at the time On who was old represent him. assigned to he committed this crime. He is now 17 psychiatric examina- trial court ordered years I have report age, turning March. resultant defendant. defendant, in made recommendation to the states, part: in material case, view the facts that he enter *3 personality socioрathic diagnosis “Our defendant, after guilty. not of diagnosis This disorder, reaction. antisocial several of conferences—and course patient, with our interviews is based on had time to has considerable think about while his behavior observation confined, this matter since he been find testing. We hospital psychological and unequivocally up since arrest —has any problem psychiatric no evidence apparently his mind to enter a Sociopathic diagnosis. other than the above request guilty. at the And defend- reaction, re- disorder, anti-social personality direction, ant and at his enter a I always in are who fers to individuals contained in the county to experience trouble, profiting neither attorney’s information. We will waive the no real maintaining punishment, nor three-day waiting period sentencing, code. loyalties group, any person, to pronounced and ask that sentence be im- hedonistic, They frequently callous and mediately, if that the desire of this Court. immaturity, showing a marked emotional However, Honor, prior sentencing Your to responsibility, lack lack of sense with pronounced like to make a being I would ability to rationalize judgment, and an statement the defendant.” on behalf of warranted, appears their so that behavior attorney then this concluded with reasonable, disorder justified. This is a “ * * * competent comment: Mr. Sisco benefit from been found not to which has trial, according reрort. to stand He to psychiatric treatment. behavior; recognizes consequences of his damage of brain find evidence “We no guess report— and I he feels—with the examination neurological basis of competent make a decision this case. furthermore electroencephalogram. We it, He I felt has made but the Court should distinguish this individual can find the circumstances the case. know I’m wrong, between the difference strictly looking background, at his consequences of behavior recognize the his which isn’t—it is but I don’t enlightening cooper- competent trial and and is stand suppose it’s that beneficial—but so Your attorneys in defense. We ate his his fully Honor can be aware. The facts of hospitalization further do advise attorney, this crime have bothered individual treatment for this psychiatric decision the defendant is final and diagnosis has particular because have, he has made it. And all so that’s psychiatric treat- respond found not Your Honor.” and we find evidence ment furthermore court, time, Thereupon trial for the first in this in- psychiatric problems of other and, personally, defendant addressed to the dividual.” relevant, extent here this followed: April 8, 1968, appeared Well, you rise, “THE will Mr. COURT: arraignment. court for counsel before trial you you anything Do have more Sisco. like tell me? would pages the record be-
Approximately 35 presentation devoted to fore us are No, Honor. “MR. SISCO: Your factual situa- court-counsel discussion of your “THE COURT: Is desire tion here involved. plead guilty? however, defend- things, Among other “MR. Yes. assigned ant’s counsel stated SISCO: plead charge against full you knowledge Do ? him “THE COURT: rights and the Yes, Your Honor. “MR. SISCO: enters such under standably persuasion, and without fear or you Do reason “THE COURT: the court abusing its discretion why pronounc- should now be sentence permit refuse to its withdrawal. ed? Bastedo, 253 Iowa N.W.2d No, “MR. SISCO: sir. ; Am.Jur.2d, Law, 260 21 sec 497, 498; Anno. pages 66 A.L.R. Well, “THE will be COURT: 638.” See also Machibroda you sentence of the confined Anamosa, Reformatory in the Men’s Delano, Iowa, 161 7 L.Ed.2d Iowa, years, you pay ten and that the costs 66, 72; Vaughn, and State v. bond, prosecution. your appeal And *4 448. 159 you appeal, $2,500.00.” desire to will be Furthermore, appеars it most courts II. question present- It is once evident the hold, in the now even absence of a statute appeal go ed on this does not to the matter directing, sentencing judges, or rule be- so Rather, guilt of or innocence. we here are guilty plea, first accepting a fore upon called determine whether guilty to entered, voluntarily an it with determine is accepted plea judgment charge, knowledge the understanding of thereon, any prior absent determination consequences, and there exists the criminal court, by trial the defendant understands it. supporting factual See editor’s basis the charge against both him and crim- statement, 549, 552. 97 A.L.R.2d guilty plea, inal that voluntarily it is entered. McCarthy v. refer At the outset Stаtes, 89 S.Ct. U.S. in I. As stated Kercheval v. United the court Although 220, 223-224, L.Ed.2d 418. U.S. the Rule 11 of with primarily plea guilty dealing 1009: “A differs L.Ed. Procedure, it of Criminal purpose and effect a mere Rules admission Federal standards confession; constitutional extrajudicial or an some gave it itself voice to is rule, as demonstrated in that jury a conviction. Like verdict inherent cit., 1170-1171: statement, required; the loe. is More is this conclusive. “* * * since that argues give the do but Government plead just and sentence. consideration stated his desire petitioner Out crime, of the conse- informed persons accused courts since he was for ‘could plea not he the District guilty quences that a shall of his careful enter- petitioner was accepted that prоp- properly unless made assume after complete er understand- advice with understanding that with a full consequences. (Emphasis pleads the he him.’ charge against When one so the ing of may be held bound. United added.) States
Bayaud But, (C. F. C.) timely on accept argument, this cannot “We application, the court will vacate a purposes completely ignores the two unfairly shown to have been guilty obtained recent reasons its Rule and the given through ignorance, in- fear or First, procedure although amendment. an application advertence. Such does held to embodied in Rule has not been any question guilt involve or innocence.” mandated, designed constitutionally is (Emphasis supplied). judge making сon- assist district stitutionally required determination
In the same vein this court held truly voluntary. Krana, “The defendant’s 159N.W.2d 416: Second, produce a Rule is intended to rule is now clear if a in- an is en- dictment or information or offense at the time complete record therein the defendant has cluded to which to this volun- relevant tered of the factors Thus, pleaded guilty.’ this examination Requiring the more tariness determination. to, relation law and the of the between meticulously Rule is adhered having admits committed at least acts discourage, more tends of, ‘protect designed a defendant who disposition expeditious enable more position pleading voluntarily post-convic- and often frivolous numerous of the nature validity tion attacks on the constitutional realizing but without that his con- guilty pleas. actually duct does not fall within however, amendment, the 1966 “Prior to charge.’ interro- judges personally district not all judge “To the extent that the district their accepting gated defendants exposes thus state of defendant’s mind of the awareness pleas. With personal interroga- through requirements the Rule’s confusion over tion, facilitates his own deter- it to amended respect, the draftsmen voluntariness, plea’s mination of provision ‘expressly requiring add a facilitates determination he also personally.’ court to address the defendant post-conviction subsequent proceeding responsibil- judge’s clarification based a claim was in- quite obviously ities furthers both of the voluntary. goals Both are under- of these purposes. By personally interrogat- Rule’s *5 in proportion degree mined the dis- to the ing the will the judge not ‘assumptions’ trict judge resorts to not plea’s be better able ascertain the volun- to upon responses based his in- recorded tariness, develop but he will a more also quiries.” (Emphasis supplied.) complete to support record his determina- subsequent in a post-conviction attack. Also, ex rel. McCloud as United States 853, 857-858, Rundle, (3 Cir.) 402 F.2d genesis their purposes have "These two adequate rec- “In the absence of an states: A plea. guilty the nature a defendant of prop- that the trial has indicating ord simultaneously plea enters such a who plea erly ascertained whether a includ- rights, constitutional waives several entered, voluntarily it is in- knowingly compulsory against privilege his self- corpus habeas upon cumbent the federal incrimination, jury, and right his trial by on the court to make this determination For this his his accusers. confront basis of all the relevant facts and circum- the Due Process waiver to valid under be connection, it should be stances. In this Clause, relinquish- be ‘an intentional pointed out that the strong presumption of right or ment or abandonment a known constitutional which attaches to regularity 458, Zerbst, privilege: Johnson collaterally conviction when a state court 464, (1938). 58 S.Ct. L.Ed. 1461 attacked, may be overcome where there is Consеquently, guilty plea a is defendant’s proceedings no record the state court equally not voluntary knowing, exist, where such shows does process been obtained in violation due that properly question court did not Moreover, and is void. because therefore Al- accepting on his plea an admission the ele- all though the standards determin- federal ments charge, criminal it can- formal ing the a guilty plea voluntariness not truly voluntary unless the defendant not yet as been imposed upon the state possesses an the law in significant is nonetheless courts: relation facts. under Rule 11 Federal Rules of “* * * Procedure, judge Criminal Procedure of must determine‘that Criminal the conduct even to its which the amendment in defendant admits proof constitutes burden of charged the offense in the in- did in fact shift to the Iowa, Kulish, 423 [p. the rule § 653].”’ the terms of where Government 428, 432, February 148 N.W.2d filed Prior complied with. not were Iowa, 161 Cooper, 1967.” also See ‘the court only that 11, required Rule * ** Bennett, N.W.2d Brewer plea without accept shall Iowa, 749, 751. 161 N.W.2d determining that first the na- understanding of voluntarily with In line American Bar As- herewith the ’*** standard charge. ture of the Project sociation Minimum Standards on then the more appear would Guilty, Justice, Ap- for Criminal Pleas of enunciated mandate as constitutional proved Draft, provides part pertinent : in Kercheval v. States. U.S. “1.4 to be Defendant advised court. [274 (Emphasis supplied). L.Ed. 1009]” accept “The court should fore- approval of voiced Recently we guilty or nolo contendere from defendant Rife, v going in State addressing per- without first the defendant better “The statement: sonally and accepting procedure “(a) determining he understands Rules of Federal in Rule found the charge; nature of accept should Procedure, that courts determining a plea “(b) first informing him that an un- and with it is made guilty or nolo contendere waives possible and the derstanding right to trial by jury; and clear, if the quite It is involved. penalty “(c) informing him: promises by empty prosecutor induces im- threatens judge if the leniency, or “(i) possible of the maximum sentence a con- sentence the maximum pose charge, including possible involuntary trial, plea is after viction sentences; consecutive *6 void. is thereon any based mandatory “(ii) of the minimum sen- 107, 103, Bastedo, supra Iowa v. State [253 tence, any, charge; if the United v. 255]; Machibroda N.W.2d 111 510, States, 487, 7 82 S.Ct. 368 U.S. “(iii) charged when the offense is one supplied.) (Emphasis (1962).” 473 for pun- different or which a additional by ishment is authorized of the reason Iowa, 149 Lampson, Also, v. in State previously fact that the defendant has “‘The 121, said: 116, court this N.W.2d offense, may convicted of an that this fact guilty plea of a requisites formal plea present be established after his Code, 777.12, out at section set state are this convicted, previously if he action has been court therewith connection In thereby subjecting him to such different or 9, Kellison, Iowa 232 v. said State has punishment. additional place, 239, first “In the 242: 14, 4 N.W.2d voluntary and entirely plea must be a such “1.5 Determining plea. voluntariness of misrepresentation, fear, by by induced holding of false by out by persuasion, plea accept the a should not “The court byor through inadvertence hopes, nor made de- nolo without first or contendere 423 Law ignorance, voluntary. 22 Criminal By § termining is C.J.S. satisfy it- And the court should [p. attorney prosecuting and de- inquiry of 653]. voluntary character of counsel, self fense the court should determine it, especially ac- accepting where whether the is the result tendered by represented is is not counsel prior plea plea agreement, cused discussions a obviously inexperienced and, lack- young is, or agreement if it what hаs been intelligence knowledge attorney of our prosecuting or If reached. spoken language. agreed 22 Law or conces- seek sentence C.J.S.
548
court,
guilty plea
a
is
approved
change
entered serve to
or
which must be
sions
per-
alter
holding.
the defendant
above
the court must advise
sonally
recommendations
words,
sentencing
court
In other
binding on
attorney
prosecuting
anyone,
abrogate
delegate
or
then
The court should
address
court.
accused,
duty to
attorney for
including
wheth-
and determine
personally
knowledge of the
any
or
defendant’s
force
determine
promises
er
other
legal
charge, appreciation of
plea.
to obtain the
threаts were used
whether
accuracy
Determining
“1.6
entered,
it.
supporting
of facts
existence
acceptance of a
“Notwithstanding
holding in United
clearly the
enter
plea of
the court should not
Cir.)
(2
Gilligan,
v.
rel. Codarre
States ex
judgment upon
making
such
proceeding
961, involving a habeas
363 F.2d
inquiry
may satisfy it that
such
prisoner.
year
state
13
old
brought
plea.”
factual
basis for the
court,
was asked
the accused
There
acquiesced in
are,
Briefly
sentencing,
these
standards
stated
essence,
attorney
by his
exemplification
11,
of Rule
Fed-
that Mr.
was, “I will take the
eral Rules Criminal
answer
one
Procedure.
reversing
prior denial
In
said.”
Dow
lend additional
following authorities
writ,
at page
stated
965:
Fultz
foregoing conclusions.
supрort
had
[petitioner]
“The fact
that Codarre
408;
404,
States, (6
365 F.2d
Cir.).
v. United
court-appointed
recommended
counsel who
Davis,
212 F.2d
(7 Cir.)
v.
United States
Codarre
pleading guilty is not conclusive.
9,
Kellison,
267;
264,
232 Iowa
v.
must have made a reasoned choice.
himself
14-15,
239;
People,
v.
Martinez
4 N.W.2d
1,
Janis,
See Brookhart
384
86
v.
U.S.
S.Ct.
990, 991;
521,
People v.
P.2d
152
382
Colo.
1245,
19,
(April
1966);
III. Neither does See Kent v. United 383 U.S. 86 1045, the time ments counsel for defendant at S.Ct. 16 L.Ed.2d (1966). pro- 84 The
549 contrary he been court that is what pro- insufficient provided offered cedure believe, promises by especially led to as to supplied.) (Emphasis tection.” prosecutor or his defense counsel v. Thurmond rel. ex State in United And ** * no would more defendant] [the 508, another F.Supp. Mancusi, 275 (D.C.) challenge open that statement in than court a state vacating case, court in habeas challenge would a clergyman’s he sermon conviction, remand- Trebach, pulpit.’ Rationing The inquiry searching “A 519: page ing, said sup- 159-60 (1964).” (Emphasis Justice en- the defendant time court at by the plied.) and effi- reliable is the most ters the de- determining whether means of cient subject at Finally hand refer on the nature fully understands fendant McCarthy v. again this statement him. that has commitment States, 459, 466, 89 United 394 U.S. S.Ct. accepting the judge inquiry Such 1166,1170, 1171: “By interrogat personally the de- permitting the value plea has judge will the position reevaluate fendant to plea’s able ascertain the better voluntari mercy. court’s throwing himself ness, develop but he will more com also cited). (Authorities plete support record to his determination subsequent post-conviction attack.” con did case, trial court “In pe whether determine inquiry to duct 1.5, American See also sections 1.4 and voluntary. There plea was titioner’s Relating to Standards Bar Association examin comprehensive ‘penetrating and Fultz v. Guilty, quoted supra; Pleas of under the circumstances of all ation 404, 408; States, 365 F.2d (6 Cir.) United v. Moltke Von plea is tendered.’ such 333, People Taylor, Mich.App. 316, 92 Gillies, 332 U.S. 723,725; Rhay, Woods Wash. v. United Kercheval See (1948). L.Ed. 309 Harrell, 2d 414 P.2d State L.Ed. 223, 227; 40 Wis.2d 161 N.W.2d Elks ex rel. (1927); States Burke, ex rel. Burnett Wis.2d F.Supp. (S.D.N.Y. Gilligan, 256 nis v. 91, 95-96; 126 N.W.2d and editor’s state- asking inquiry ‘A 1966). mere routine —the ment, A.L.R.2d questions suf standard several —will trial court.’ discharge duty fice to hold, persuaded We are and now when Lester, 247 F.2d 499- United States v. guilty plea by defendant, is entered 500 (2d 1957): Cir. court must personally address the accused fact represented by counsel did 'not relieve procedure prescribed heretofore the court responsibility determine whether of further understands the inquiry.’ Id. at 500. See United ex States made, penal aware of the conse- rel. Gilligan, Codarre v. 363 F.2d 965 quences the plea, is entered (2d 1966). Cir. voluntarily. Nothing less will suffice. surrounding of tensions notice “Judicial IV. It is also evident a record of the impossible acceptance pleas makes *8 directed, proceedings supra, should be made hearing that defendant without a decide preserved. District significance the the understood regard In this section 1.7 the Ameri- Attorney’s for the record that statement Project can Bar Association on Minimum defend- promise was made. But even the Justice, Standards for Pleas cojnprehend, fail- ant did his hear and did Guilty, Draft, approved provides : attorney ure stood challenge when acquies- mute is nоt conclusive evidence proceedings. “1.7 Record of cence. “ proceedings at de- “A of the the verbatim record or prosecution, the judge, the ‘If open which defendant enters in a statement makes fense counsel pre- meaningful or nolo made and informative personal contendere should be (i) open The should discussion with the served. include accused in court. (as required court’s advice to the defendant Whitehead, Citing VI. 1.4), (ii) inquiry section into the 899,903, argues state required plea (as of the voluntariness guilty plea defendant’s should be set 1.5), inquiry section (iii) into aside alleged because he has at time accuracy (as required of the in sec- innocence. tion 1.6).” argument That ignores thе factual sit- That precept is supported also in Mc- presented. uation here State v. White- Carthy v. United and United States head, supra, 'involved an application for Rundle, ex rel. quoted McCloud both leave to withdraw a after supra. judgment and sentence. Again favorably we look upon and application No such before us adopt 1.7, provisions of section Ameri And, above, time. as noted are not can Bar Association Minimum Standards innocence, now guilt concerned with or for Criminal Justice, quoted above. appeal defendant’s final judgment be- ing directed to the matter of disclosed, V. As sentenc- heretofore trial court ing procedure. did make inquiry thorough regarding the facts attendаnt upon the with crime which Whitehead, It is thus evident defendant stood charged. supra, factually comparable is here neither controlling. nor
However, it apparent is also no effort made, entry was guilty plea after Moreover VII. State Ala- judgment, to ascertain whether bama, charge, legal understood the effect, 5 Cr.L. accords consequences plea, of his or was support substantial set conclusions voluntarily made. supra. forth Admittedly attorney defendant’s told the indigent There an charged court his year old “recognized client robbery, five counts appeared consequences of his behavior.” court, counsel, state appointed guilty pleas charged. offenses cry еxpressed But this is a far from an understanding penal pre- far So as disclosed the record the accused, talking criminal conduct. siding judge questions asked no of accused attorney, may to his have meant he knew concerning and sentence ul- morally wrong, his conduct was even timately imposed. law. That constituted violation of the hardly equivalent of an understand- ap- appealed the Alabama Defendant ing punishment be adminis- Thereupon pellate tribunal denied relief. entry tered to the granted the United States charged. certiorari, serious offense here reversing and in said: “It was error, record, plain on the face Furthermore, stated, above sentenc- accept petitioner’s guilty judgе delegate cannot coun- courts to defense showing affirmative duty sel to ascertain defend- * * * intelligent voluntary. ant’s of an unlawful act or *9 legal consequences any its than plea more guilty “A more than confes- is a assign can determining the task volun- sion which admits that accused did acts; conviction; is a guilty tariness of That matter a various is a itself by to be determined the court alone after give judgment remains but to and
551 presume important Kercheval v. a waiver of these three punishment. See determine 223, 220, rights S.Ct. federal silent 274 47 record. U.S. Admissibility of 582, 583, L.Ed. 1009. 71 facing is for an accused “What at stake ‘reliable on a confession must be based so imprisonment death demands utmost issue on the voluntariness determination capаble can licitude courts are which rights of the constitutional satisfies which accused to make vassing matter with the Denno, v. 378 defendant.’ Jackson understanding of full what sure has a 1774, 368, 1786, 387, L.Ed. 12 84 S.Ct. U.S. consequence. connotes of its requirement prosecu- that the 908. The 2d function, judge discharges When spread prerequisites on the record the adequate review he leaves is in- a valid waiver no constitutional sought. Lou (Garner be later v. Cochran, Carnley novation. In 369 U.S. v. 256, isiana, 157, 248, 173, 368 S.Ct. U.S. 82 70, 506, 516, 884, 890, 8 82 S.Ct. L.Ed.2d Patterson, 207; Specht 386 7 L.Ed.2d v. problem dealt we of waiver of 1212, 605, 1209, 610, L.Ed. U.S. S.Ct. 18 counsel, right right. a Sixth Amendment spin-off 326), 2d of col and forestalls ‘Presuming held: a silent We waiver from murky proceedings probe lateral seek to impermissible. record is The record memories. show, allegatiоn or there must an be show, evidence that an accused dissenting in the Ala- justices “The three intelligently
was offered counsel but ac- Court stated law bama rejected Any- understandingly the offer. curately they concluded that when thing less is not waiver.’ error the record reversible 'because think that “We the same standard must does not the defendant volun- disclose applied determining whether a pleas tarily understandingly entered his For, 663, is as made. guilty.’ Ala. at [659], said, is more than an ad- [412], at 415.” So.2d conduct; mission is a conviction. VIII. court it must coercion, In fairness trial
Ignorance,
incomprehension,
ter-
inducements,
we have never heretofore
ror,
conceded
blatant
threats
subtle or
forth
sentencing procedures
held the
set
might be
perfect cover-up
of unconstitu-
obligatory.
are
above
tionality.
question
effective
waiver of a federal
in a
right
constitutional
hand,
previously
dis-
other
as
On
proceeding
governed by
is of course
federal
closed,
recommended,
at
it has
Alabama,
Douglas
standards.
v.
380 U.S.
occasions,
foregoing
least four
1078,
1074,
85 S.Ct.
L.Ed.2d
Coop-
procedures be
See
v.
followed.
State
934.
728,
er,
Iowa,
731; State
161 N.W.2d
rights
federal
“Several
constitutional
Rife,
846,
Iowa,
848; State
v.
149 N.W.2d
place
takes
when
involved in a waiver that
Lampson,
149 N.W.2d
in a state crimin-
entered
Kellison,
and State
232 Iowa
against com-
the privilege
al trial. First is
N.W.2d 239.
by
pulsory
guaranteed
self-incrimination
applicable to
Amendment
Fifth
compliance
substаntial
now hold
We
reason
Fourteenth.
States
opinion
set forth
standards
Malloy Hogan,
mandatory in all
indictable misdemeanor
right
653. Second
felony
guilty is
cases where a
Louisiana,
Duncan v.
jury.
accused.
20 L.Ed.2d
U.S.
88 S.Ct.
Third,
dictates, however, they
ac-
justice
confront one’s
Manifest
is the
bar,
Texas,
applicable
be held
case
cusers. Pointer v.
U.S.
Alabama, supra.
cannot
Reversed remanded instructions. Despite McCarthy, holding the limited Boykin just Court in two — BECKER, JJ., MASON concur. months later—used that decision springboard deciding a LARSON, JJ., constitutionally LeGRAND and concur in a state was invalid specially. complied unless rule 11 was with. federal opinion McCarthy There is in the conclusion, justify the two-judge GARFIELD, SNELL, J., C. Boykin forcefully points dissent case STUART, JJ., MOORE and dissent. this out. adopting a We are here mere ritual as an LeGRAND, special- (concurring Justice easy pushbutton deciding method of ly). par- in advance—without reference to the result, I concur in but because ticular circumstances—when a by*reason compelled feel do so Mc- fails to meet constitutional standards. Carthy v. United fully opinion I am aware the announces 22 L.Ed.2d that the formula should not used become Alabama, “ritualistic”, despite but this admonition the Except for these United recent States just inevitable result is that. decisions, Supreme Court I would have no My objection is not to the standards im- doubt this defendant accorded his full was posed but rather to the method which the rights. constitutional opinion says must be followed in order We reverse here because defendant’s they demonstrate have been met. This com- accepted was the trial court pletely disregards the real issue: having (1) without first ascertained it was plea voluntary; was it with the made full voluntary, (2) made with an consequences; knowledge and was of the charge, (3) made with knowl- realizing punishment edge penal consequences. It is in- imposed? could Apparently this now teresting note the defendant does not of trifling importance. becomes The in- claim, find, nor do we was not quiry longer is what did the defendant voluntary, not in made with fact know fact at the time he entered his an understanding charges, or was what did the trial court tell him at that not in knowledge made with a fact time. Even fully if he were to be aware penal result, consequences. The it seems every fact the trial point court could me, relegates substance to a subordinate out, a opinion defendant would under this position upon pure and insists formalism nevertheless be entitled to have his set as a test for constitutional conformance. aside because his did not come information a particular source. opinion Under our present case it is now obligatory upon recently our courts to com- As as March year of this ply with rule Rules of Federal Proce- United States Second Circuit Ap- Court of provisions dure. fully These peals discussed considered a problem similar opinion. McCarthy In the case McMann, ex States rel. Brooks v. Supreme imposed announced the rule 408 F.2d 825. There it was claimed *11 that, to axiomatic if defendant be en- defend- the failed to warn trial court had he did under titled to relief not under- subject sentencing to because ant he was allege he rights, stand his he should at the time his first the recidivist statute conceding ignorant rights. the was in fact of those Oth- accepted. After was the erwise where is harm? be of the conse- defendant should advised quences plea, his court said: of the McCarthy decisions Until the at of the holding this the least some was process requires that an “But even if due throughout circuit the federal courts coun- possible recidivist accused be of aware try. varying are discussed The views acceptance of judge’s treatment McCarthy repeated and need not be here. always the it should not be accused’s This has also been the rationale of the necessary given that such information of For holdings the state courts. some it the accused is obvious the court for Biastock, instance, see Wis. 167 any that accused knew other the from if 231, 235, which was decided after possible consequences source the to him Boy- McCarthy the before the opinion but a guilty plea there would be violation kin the court opinion, where Wisconsin due court process convey the if failed said with reference to present the In case the information. represented by counsel “Defendant was peti- allege in his Brooks does habeas Therefore, the trial absence court. the ignorant tion that he the conse- contrary, proof it must be as- quences plea; his his claim that defendant counsel advised the sumed process that due was denied is that him possible of all defenses.” consequences was not tоld trial court. assumption made same should be The defend- gave counsel here as the advice “The here circumstances demonstrate not ade- claim he was ant. There is no that appellant consequences knew the record shows he represented. The quately plea. would follow after his First and counsel, further The shows was. foremost, had stage Brooks counsel each presence proceedings, of the state criminal and it is showing he statement to detailed reasonable to that his assume counsel ad- substantially all had advised defendant consequences vised him of his requires. rule 11 which federal matters Certainly any the lack affidavit stated says that opinion when counsel attоrney his attorney did not dis- consequences of defendant understood weighs cuss these with him only that meant his act heavily against petitioner.” (Empha- morally wrong “he knew conduct was his sis supplied.) a violation of it constituted even I consider reasoning particularly law.”
applicable here. I also consider the result searching be a fanciful appears to desirable, to be far more although unlikely possibilities for which impact doubtful can withstand now It has in the record. is no basis recent decisions al- guilty plea was year more than a since ready referred to. had time to reflect He has
entered. He has he entered. principle would and consider the subscribe to the represented cоnscien- at all times been who denies he en- he doesn’t tered Yet says diligent tious and counsel. his or who he did so with- conse- consequences, suggest out understanding its en- anything less than act quences titled of his question. hearing settle that Here, was invol- however, appears or that defendant does not —even untary. now—assert such claim. It seem would curring LeGrand, mysterious opinion There is about to- Justice *12 attorney gives gether Supreme
information an a client who further fact the clearly what considering means. Court has not held its decision Alabama, Cooper, Boykin As we said layman applied should must “[E]ven expect plea retroactively. to be as an treated guilt confession of and a honest waiver
all defenses known and unknown.” MOORE, STUART, SNELL, JJ„ join this dissent. sаys
If counsel he advised his client of in- of such upon imagination volves no strain telling
assume this included him jury to a pro- with its built-in punishment
tections and of the which subject. Any
he is other result attributes deceit, stupidity counsel either should, course,
both. A defendant permitted practiced his counsel Q. E. Harlan Fred HOLSTEEN, Holsteen, him, one of these arts Plaintiffs-Appellees, should not assume he did so. P.
Regardless any other Josephine al., THOMPSON et Defendants, considerations and as minimum, an absolute I would King Kathryn Leake, Holsteen Defendant- allege insist the absence those Appellant. say which present conditions must be No. 53552. Having valid. Supreme Court of Iowa. so, failed to do he is entitled to no relief. July 24, 1969. previous decisions,
I find in our all opinion, contrary. cited in the to the reached, justifiable all,
The result opinions be bottomed on the recent
of the United States Court. Boykin out,
dissent points correctly I
believe, that the decision makes rule “substantially
II applicable to the states as matter federal constitutional due
process.” That dissent further finds the
result reached I “bizarre.” believe ours
too. agree dissent, I
Much majority opinion is of course the
we are bound to For observe. that reason reluctantly concur result.
LARSON, J., joins special in this con-
currence.
GARFIELD, (dissenting). Chief Justice majority opinion
I dissent from the specially con-
grounds indicated in the