Feaster v. State , 539 P.2d 401 ( 1975 )

539 P.2d 401 (1975)

Clifford F. FEASTER, Petitioner,
v.
The STATE of Oklahoma, Respondent.

No. C-75-357.

Court of Criminal Appeals of Oklahoma.

July 21, 1975. Rehearing Denied August 6, 1975.

Lucas & Cate, Norman, for petitioner.

Larry Derryberry, Atty. Gen., for respondent.

OPINION

BLISS, Judge:

Appellant, Clifford F. Feaster, hereinafter referred to as defendant, entered pleas of guilty on the 4th day of March, 1975, in the District Court, Oklahoma County, in Case No. CRF-74-3628 to the offense of Robbery in the First Degree and in Case No. CRF-74-3136 to the offense of Grand Larceny, in violation of 21 Ohio St. 1971, §§ 791 and 797 and 21 Ohio St. 1971, § 1704, respectively. Thereafter on the 1st day of April, 1975, judgment and sentence was imposed in each of said cases and pursuant thereto defendant was sentenced to a term of twenty (20) years imprisonment in Case No. CRF-74-3628 and five (5) years imprisonment in Case No. CRF-74-3136, said sentences to run concurrently. Thereafter on the 11th day of April, 1975, defendant filed an application to withdraw his pleas of guilty in said cases; whereafter, on the 25th day of April, 1975, an evidentiary hearing was conducted at which time the defendant's application was denied.

Defendant contends the trial court erred in denying defendant's application to withdraw his plea of guilty in each case because defendant did not intelligently enter said pleas because he was not adequately advised by the court of his constitutional rights and, consequently, he did not voluntarily and intelligently waive said rights. Defendant asserts the trial court record supports him in this contention in that it reflects the trial judge failed to comply with the prerequisites for acceptance of a plea of guilty as enunciated in previous decisions of this Court, citing Copenhaver v. State, Okl.Cr., 431 P.2d 669 (1967) and Smith v. Oklahoma City, Okl.Cr., 513 P.2d 1327 (1973).

Although the procedure outlined in Smith, supra, citing Copenhaver, supra, is not constitutionally mandated, it was designed to assist the trial judge in making the constitutionally required determination that a defendant's plea of guilty is truly voluntarily and intelligently entered. In Smith, supra, this Court set forth the procedure to be followed by the trial court in determining whether a defendant's plea of guilty was voluntarily and intelligently entered. In pertinent part this Court stated:

"In order to clarify the procedure, for all future cases, to be followed by the trial court in determining whether a defendant is voluntarily and understandingly entering a plea of guilty, whether represented by court-appointed counsel, public defender, retained counsel, or appears without counsel, the trial court must first determine if the defendant is competent by interrogation of defense counsel and the defendant as to the defendant's past and present mental state as well as by observation of the defendant. In the event the court finds there is substantial question as to the competency of the defendant, the court should commit the defendant for observation as provided by law. If the trial court determines the defendant is competent, he must then advise the defendant:

"1. That he has a right to court-appointed counsel, if the defendant appears without counsel;

"2. That he has a right to trial by jury;

"3. That he has a right to be confronted by witness who would testify against him;

"4. That he has a privilege against compulsory self-incrimination guaranteed by the Fifth Amendment;

"5. The nature and consequences of such plea, including the minimum and maximum punishment provided by law for the crime of which he stands charged;

"6. That the trial court is not bound by any recommendation made by the prosecuting attorney or any agreement entered into by defense attorney and the prosecuting attorney.

"An affirmative waiver of these requirements must be reflected in the record prior to the acceptance of a plea of guilty."

However, we further note this Court's language in Cobbler v. State, Okl.Cr., 521 P.2d 838 (1974), the progeny of Smith, supra, wherein in pertinent part it reads:

"In the first paragraph of the Syllabus in Peterson v. State, Okl.Cr., 473 P.2d 293, we stated:

"``The words of the Miranda warning do not constitute a ritualistic formula which must be repeated without variation in order to be effective, but words which convey the substance of the warning along with the required information are sufficient.'

"We are of the opinion that the same holds true as to the procedure to be followed, as outlined in Smith v. Oklahoma City, supra, and hold that the trial court in the instant case, substantially complied with this procedure.

"We believe that the trial court should follow the rule and the directives of Smith v. Oklahoma City, supra, in order to avert a direct or collateral attack; however, in order to meet constitutional standards promulgated by the Supreme Court of the United States and made obligatory on the States by the 14th Amendment, it is sufficient if the record affirmatively reflects that the defendant knowingly and intelligently entered a plea of guilty, with full knowledge of the nature and consequence of such plea and waived his right to a jury trial and/or the right to be represented by counsel. If these requirements are reflected by the record, or can be established, then the judgment and sentence rendered on the plea of guilty should not be disturbed for a failure to comply with a ritualistic formula."

Assuming the plea minute of March 4 was the only record before us, we would be compelled to find that the District Judge did not fully adhere to the procedure outlined in Smith, supra, and such an infirmity would render the defendant's pleas of guilty invalid as not having been voluntarily and intelligently entered. We further note that the minute of the pleas of March 4 is not illustrative of a procedure which should be emulated by trial judges. However, we must examine the plea minute before us together with the supplementary record made at the hearing on the application to withdraw the defendant's pleas of guilty. This type of supplementation of the original plea minute for the Court's consideration is proper in light of Cobbler, supra.^[1]

The language in Cobbler, supra, allows the trial court and this Court, in determining whether or not a plea of guilty was voluntarily and intelligently entered, to consider the testimony taken at a hearing on an application to withdraw plea of guilty. This is certainly consistent with the language of the United States Supreme Court in Brady v. United States, 397 U.S. 742, at 749, 90 S. Ct. 1463, at 1469, 25 L. Ed. 2d 747, at 757.^[2]

An examination of the entire record before us illustrates the trial judge complied with the directives of Smith, supra.

Specifically, the minute of the defendant's pleas affirmatively reflects that the defendant was assisted by counsel, and thus this satisfies the first requirement of Smith, supra.^[3] The minute further reflects that the trial judge advised the defendant of the nature and consequences of his plea to which the defendant indicated his understanding; thus satisfying the fifth requirement of the procedure outlined in Smith, supra.^[4]

Requirements number two, three, and four of Smith, supra, involve defendant's constitutional rights. As stated by the United States Supreme Court in McCarthy v. United States, 394 U.S. 459, at 466, 89 S. Ct. 1166, at 1171, 22 L. Ed. 2d 418, at 425:

"These two purposes have their genesis in the nature of a guilty plea. A defendant who enters such a plea simultaneously waives several constitutional rights, including his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers. For this waiver to be valid under the Due Process Clause, it must be ``an intentional relinquishment or abandonment of a known right or privilege.' Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 [1466, 146 A.L.R. 357] (1938). Consequently, if a defendant's guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void. Moreover, because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts." (Footnotes Omitted)

With this language in mind, we feel requirement number two is affirmatively reflected as having been satisfied by the defendant's response at the hearing on the application to withdraw his plea of guilty wherein he admitted to having been advised by the trial judge of his right to a jury trial and his desire to waive such right.^[5]

We further feel requirements three and four were satisfied as indicated in the record as the defendant, prior to the entry of his pleas of guilty, while assisted by counsel, prepared the summary of facts sheet;^[6] thereafter the trial judge made inquiry of defendant regarding the summary of facts sheet.^[7]

Here again the signature of the defendant on the summary of facts sheet illustrates an "intentional relinquishment or abandonment of a known right or privilege." See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461, 1466 (1938).

The last requirement of Smith, number six, is reflected as substantially complied with by the defendant's admission at the hearing on the application to withdraw his plea of guilty at which time he testified that, prior to the entry of his pleas of guilty, the Court informed him of what the State's recommendation of punishment would be.^[8] Again this is allowed by Cobbler, supra, in that it can be established that the trial judge complied with the requirement mandated by Smith, supra. We further note this requirement is essential as we promote the concept of plea bargaining and we feel such promotion is consistent with the United States Supreme Court's statement in Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971) wherein the Supreme Court discussed the legitimacy of the practice of plea bargaining and found that where "properly administered" it is to be "encouraged" as an "essential" and "essential component of the administration of justice." Found at pages 260-261, 92 S.Ct. at page 498.

In passing, we feel it necessary to attempt once again to clarify the procedure to be followed by the trial court in all future cases in determining whether or not a defendant's plea of guilty is voluntarily and intelligently entered. We urge all trial courts to adhere fully to the directives of Smith, supra.

We further urge that if a summary of facts sheet on a defendant's plea of guilty be utilized, the trial judge shall comply with the following procedure and we approve and urge adoption of such a device if the following procedure is complied with by the trial judge:

1. Summary of facts sheet must be filled out in its entirety and signed by the defendant and if represented by counsel, with counsel, prior to the trial judge's acceptance of the defendant's plea of guilty;

2. At the acceptance of the defendant's plea of guilty, the prepared summary of facts sheet must be submitted to the court and the trial judge shall then inquire of the defendant, while the defendant be under oath, whether or not the defendant desires the trial judge to ask the defendant each specific question on the summary of facts sheet or if a defendant so desires then he may, under oath, acquiesce to the trial judge that he has read the summary of facts sheet, signed the summary of facts sheet, and voluntarily and intelligently answered the summary of facts sheet;

3. If the defendant so indicates, the trial judge must then sign and date the summary of facts sheet and so indicate by minute if the imposition of judgment and sentence is postponed to a time certain for preparation of a presentencing report and a summary of facts sheet shall then be admitted into evidence as a State's exhibit; and

4. The summary of facts sheet must then be properly filed on that day with the court clerk.

We also emphasize that the summary of facts sheet on a defendant's plea of guilty shall contain all of the mandates of Smith, supra, to be in compliance with this Court's Opinion of today. For all of the above and foregoing reasons, the writ of certiorari is denied.

BUSSEY, J., concurs.

NOTES

[1] This Court's language in Cobbler stated that the necessary requirements are met if "are reflected by the record, or can be established, then the judgment and sentence rendered on the plea of guilty should not be disturbed for a failure to comply with a ritualistic formula." (Emphasis Added)

[2] The language in Brady, supra, reads as follows:

"The trial judge in 1959 found the plea voluntary before accepting it; the District Court in 1968, after an evidentiary hearing, found that the plea was voluntarily made; the Court of Appeals specifically approved the finding of voluntariness. We see no reason on this record to disturb the judgment of those courts. Petitioner, advised by competent counsel, tendered his plea after his codefendant, who had already given a confession, determined to plead guilty and became available to testify against petitioner. It was this development that the District Court found to have triggered Brady's guilty plea."

Such language is indicative of approval of considering the record in its entirety rather than a narrowed examination of simply the record made at the time of acceptance of the plea which may in itself be incompletely transcribed.

[3] The plea minute reflects the Petitioner was represented by counsel on March 4 as indicated in the record:

"THE COURT: State of Oklahoma versus Clifford F. Feaster.

"Are you Mr. Feaster?

"THE DEFENDANT: Yes, sir.

"THE COURT: Come around.

"Mr. Elliott your attorney?

"THE DEFENDANT: Yes, sir."

[4] The plea minute at Tr. 2, Lines 20 through 23 illustrates this, wherein it reads:

"THE COURT: A minimum sentence of five years and there is no maximum for this robbery charge. You understand that?

"THE DEFENDANT: Yes, sir."

[5] This is illustrated in the record at Tr. 17 and 18, Lines 10 through 4 as follows:

"Q. Did the Court advise you at that time that you were entitled to a jury trial? Didn't the Judge ask — advise you that you were entitled to have a jury trial?

"A. Yes, sir.

"Q. And you at that time told him you did not want a jury trial, is that correct?

"A. Mr. Elliott felt I would be better off pleading guilty.

"Q. You didn't answer my question. The Judge asked you the question whether you wanted a jury trial, and you answered either ``yes' or ``no.' What was your answer to that question at that time?

"A. Yes.

"Q. It was ``Yes.' And if you had wanted a jury trial, you could have said ``no' at that time in front of the Judge, could you not?

"A. Yes, sir.

"Q. But you said, yes, you do not want a jury trial, is that correct?

"A. Yes, sir."

and at Tr. 27, Lines 1 through 11 wherein it states:

"A. The jury was here, ready.

"Q. Yes. They were ready to try you?

"A. Yes, sir.

"Q. The State was ready to go, proceed?

"A. Yes.

"Q. And you decided you did not want a jury trial. Isn't that what happened?

"A. Yes, sir.

"Q. Well, then, you could have had a jury trial if you so had desired at that time, is that correct?

"A. Yes, sir."

[6] See Appendix I for said Summary of Facts sheet.

[7] This finding is supported by the record wherein it states at Tr. 19, Lines 8 through 13 as follows:

"THE COURT: I think he is looking at the Summary of Facts and you're looking at what was said. The Summary of Facts was filled out on March the 4th and the — and this record that I furnished to you at the expense of the County was made at the time he was sentenced on April the 1st or whenever it was."

Tr. 21 and 22, Lines 14 through 6 as follows:

"MR. LUCAS: If it please the Court, we do now object to counsel's continued reference to whether or not the Court asked these questions when it's already been stated by the Court that his counsel helped him fill out this form and not the Court, and the record does not reflect the Court asking these questions.

"THE COURT: Overruled.

"MR. LUCAS: Exception.

"THE COURT: I'm quite sure the Court did ask the questions. He and his counsel — he and his counsel sat down at the table and went over the questions and Mr. Elliott filled them out, it's in Mr. Elliott's handwriting. But when I came into the courtroom, I always take the Summary of Facts and go over them myself to see that they understand it before I accept their plea of guilty. And I — I'm quite sure the Court did go over that before I asked for a pre-sentence investigation, because at that time we had a jury here and he could have received a trial."

Tr. 51 and 52, Lines 13 through 6 as follows:

"THE COURT: Well, the record reflects it. Now you're trying to change it. The record — the record reflects that he and his lawyer sat down and filled out this Summary while they were waiting for the Court to appear. After — after the district attorney and Mr. Elliott in chambers advised the Court the case would not be for trial. It was sent down to me for trial, and both of the attorneys appeared and they — they said they had been unable to work out anything, but Mr. Elliott informed me in chambers that he had talked to his client and he was going to plead him blind to the Court and wanted a pre-sentence investigation. So I'll tell you I can remember it distinctly because it hasn't been very long ago. And I told him to go in and prepare a Summary of Facts and I would be in after taking care of other matters. I came in and he had the Summary of Facts prepared and submitted it to the Court. He had already prepared his Summary of Facts before I came on the bench. And that's the way I — that's the way I handle all these cases and that's the way I handled this one. And he came in and filled out his Summary of Facts."

and Tr. 61, Lines 12 through 15:

"THE COURT: I will state for the record that I — I don't ever sentence anybody without advising them fully of their constitutional and statutory rights, and it was done in this case."

[8] This finding is supported by the record at Tr. 20 and 21, Lines 20 through 6 wherein it states:

"Q. (By Mr. Funk) Now, Mr. Witness, prior to the time that you did enter a plea of guilty, the Court advised you what the State had recommended, what the recommended punishment would be if you entered a plea of guilty, did he not?

"A. Yes, sir.

"Q. He told you that he would — in the event that you entered a plea of guilty, that the — the State would recommend a twenty-five year punishment. Is that not true?

"A. Yes, sir.

"Q. And after you had had that information, you — you did enter a plea of guilty, is that correct?

"A. Yes, sir."