STATE of Iowa, Appellee, v. Thomas Shawn SMITH, Appellant.
No. 58933.
Supreme Court of Iowa.
July 30, 1976.
244 N.W.2d 325
Bertroche, Barnes & Hаgen, Indianola, for appellant. Richard C. Turner, Atty. Gen., Raymond W. Sullins, Asst. Atty. Gen., Des Moines, and John W. Criswell, County Atty., Indianola, for appellee. Submitted to MOORE, C. J., and LeGRAND, REES, UHLENHOPP and REYNOLDSON, JJ.
Prosecutor misconduct alone is not a sufficient basis for setting aside a conviction; it is not the misconduct which entitles the defendant to relief but resulting prejudice denying the defendant a fair trial. State v. Hall, 235 N.W.2d 702, 712 (Iowa 1975). The trial court is vested with broad discretion in determining whether prosecutorial misсonduct was sufficient to deprive a defendant of a fair trial, and this court will interfere only when such discretion has been abused. State v. Blyth, 226 N.W.2d 250, 271 (Iowa 1975). We do not find an abuse of discretion here.
No reversible error appears.
AFFIRMED.
Defendant аppeals from judgment imposing sentence upon his plea of guilty to the crime of receiving and concealing stolen propеrty having a value greater than $20 in violation of
Defendant was initially charged by county attorney‘s information with the crime of burglary in violation of
On October 14, defendant in open court requested permission of the court to withdraw his plea of not guilty and to enter a plea of guilty to a substituted and amended charge of receiving and concealing stolen property in violation of
Defendant urges this court to adopt the American Bar Association Standards of Appellate Review of Sentences and to abandon the present “abuse of disсretion” rule. In the alternative, he contends the trial court abused its discretion in imposing the maximum statutorily authorized sentence for the crime charged and to which defendant had pleaded guilty.
I. Thrice in less than a year a majority of this court has declined requests of appеllants to adopt the A.B.A. Standards of Appellate Review of Sentences. See State v. Dittmar, 239 N.W.2d 545, 546 (Iowa 1976); State v. Peckenschneider, 236 N.W.2d 344, 346-348 (Iowa 1975); State v. Horton, 231 N.W.2d 36, 39 (Iowa 1975). We continue to adhere to the views articulated in the cases cited and decline to adopt the standards for appellate review as requested by defendant.
II. Alternatively, defеndant asserts trial court abused its discretion in sentencing him to a term of imprisonment of not to exceed five years. There are two thrusts to his аttack on the sentence.
Primarily, he contends trial court should have asked him whether he had an understanding as to what the sentence would bе and whether any “prediction” had been made to him concerning the sentence, and that the court should have told him it was not bound by any such undеrstanding or prediction. Defendant relies on our decision in Brainard v. State, 222 N.W.2d 711, 722 (Iowa 1974).
That part of the Brainard opinion upon which defendant relies is, in effect, an outline or checklist rеcommended by a majority of this court as being helpful for use in receiving pleas of guilty. Nowhere in Brainard was it indicated that the failure of a trial court to advise a defendant in the particulars complained of by the defendant in this case would render invalid an otherwise adequate guilty plea. We did say in Brainard and in State v. Sisco, 169 N.W.2d 542, 545-548 (Iowa 1969), that a trial judge must establish of record that a defendant is aware of the possible maximum punish-
The record also indicates the county attorney in the presence of defendant and his counsel informed the court of the existence of plea negotiations and of the resulting agreement by the State not to make a sentencing recоmmendation in the event defendant pleaded guilty to the amended and substituted charge. The record indicates trial court also asked dеfendant if any threats or inducements other than the previously mentioned arrangement had been made to defendant in order for him to cоnclude to enter the plea of guilty. Defendant responded in the negative.
In short, we find no error in trial court‘s failure to make inquiry of the defendant regarding his understandings or any predictions of the outcome which had been made to him.
In his second subargument on this issue, defendant contends trial court abused its discretion in sentencing him to an indeterminate term of imprisonment not to exceed five years. Defendant claims he should have been granted probation.
The determination whether to sentence a defendant to jail or the reformatory or to assess а fine rather than sentencing him to imprisonment is addressed to the sound discretion of the trial court. State v. Dittmar, supra, page 546 of 239 N.W.2d; State v. Peckenschneider, supra. The trial court is clothed with similar discretion on the question of probation. Peckenschneider, supra. Where the sentence imposed is within the statutory limit, we will not interfere unless the record discloses an abuse of discretion. State v. Dittmar, supra; State v. Horton, supra.
The record in this case discloses no such abuse of discretion.
Trial court indicated it undertook a full consideration and review of defendant‘s background and the presentence investigation report. The court recommended defendant be examined for possible psychiatric problems and treated for any found to exist.
The presentence investigation disclosed defendant‘s unstable marital and vocational history, numerous episodes of antisocial behavior, extensive use of alcohol, a tendency to escаpe from problems and responsibilities and the real possibility of the existence of substantial psychiatric problems. Defendant‘s record, although it reveals no previous felony convictions, discloses other brushes with the law, both as a juvenile and as an adult. The presentеnce investigator concluded defendant‘s needs could best be met in a structured environment.
The sentence imposed was within the scope of trial court‘s discretion. We find no abuse of discretion and must affirm.
AFFIRMED.
MOORE, C. J., and LeGRAND, REES and UHLENHOPP, JJ., concur.
REYNOLDSON, J., dissents.
REYNOLDSON, Justice (dissenting).
I respectfully dissent from Division I of majority‘s opinion for reasons set out in the dissent in State v. Peckenschneider, 236 N.W.2d 344, 348-356 (Iowa 1975).