Brainard v. State ( 1974 )

REES, Justice

(dissenting).

I respectfully dissent.

The majority today seeks to buttress and amplify the four guidelines we first laid down in State v. Sisco, 169 N.W.2d 542 (Iowa 1969) with a new suggested procedure for guilty plea proceedings utilizing a checklist containing some thirty specific points of inquiry trial courts might pursue before passing on the propriety of a guilty plea. It is apparently the majority’s belief the checklist will: (1) insure guilty plea proceedings are conducted in accordance with the Sisco guidelines and constitutional due process; (2) facilitate our review of convictions based on guilty pleas by causing to be spread on the record proof the plea has been voluntarily and intelligently entered. I do not share that belief.

I. While my disagreement with the majority lies principally in the wisdom and advisability of the use of the checklist, I feel some attention should be given the majority’s reinterpretation and apparent extension of the first two guidelines for guilty plea proceedings laid down in Sisco.

The first Sisco guideline requires the trial judge to personally address the defendant and determine whether he understands the charge brought against him. Compliance with this guideline in the majority’s view will hereafter require a record showing the trial judge specifically explained the legal elements of the charge to the defendant and expressly inquired of him whether he understands the charge. Implicit in this requirement is the majority’s apparent belief a guilty plea cannot be knowing and voluntary unless the defendant: (a) is apprised of the specific elements of his offense; (b) expressly states he understands them. In my opinion this constitutes a rather significant and unfortunate departure from our previous position on the subject of compliance with the first Sisco guideline and the record showing necessary to establish the validity of a guilty plea.

As noted by the majority, we have on many occasions said compliance with the Sisco guidelines does not require a ritualistic inquiry of the defendant concerning the nature and consequences of his plea but merely must be meaningful and substantial. State v. Sisco, supra, 169 N.W.2d at p. 551; State v. Reppert, 215 N.W.2d 302, 304-305 (Iowa 1974); State v. Bledsoe, 200 N.W.2d 529, 531 (Iowa 1972). Before today we have consistently held meaningful and substantial compliance with the first Sisco guideline does not require the trial judge to explain to the defendant the specific elements of the crime charged, at least where the name given the crime is sufficiently descriptive of the nature thereof. See State v. York, 210 N.W.2d 608 (Iowa 1973); State v. Sargent, 210 N.W.2d 656 (Iowa 1973); Michels v. Brewer, 211 N.W.2d 293, 296 (Iowa 1973); State v. Hackett, 201 N.W.2d 487, 490 (Iowa 1972). In my judgment, our past position remains the better one and the reasoning expressed in the cases cited comports with the reality a trial judge need not always advise the defendant of each and every statutory element of the crime with which he is charged in order to insure he understands the basic nature of the offense. While I readily concede explanation of the specific elements of a crime is commendable and may well be material on the issue whether a defendant understood the charge against him in a given case, the procedure should not, as the majority holds, be looked upon as a sine qua non for the valid acceptance of all guilty pleas. As it is, the inevitable practical effect of the majority’s position in this regard is that the court will soon be faced with the prospect of upsetting guilty plea convictions of thrice-convicted burglars for, say, the failure of a trial judge to explain one of the elements of burglary consists of an unlawful entry. This prospect, I submit, only serves to illustrate how far afield we are going and how removed we are tending from the basic inquiry whether a plea is knowing and voluntary.

The second aspect of the first Sisco guideline elaborated upon by the majority requires the trial judge to expressly inquire of the defendant whether he understands the charge explained to him. Our previous position in this regard, taken as well by at least two circuit courts of appeal, has been that if under the whole record the defendant’s understanding of the charge is apparent, a failure on the trial judge’s part to expressly ask him if he understands the charge does not vitiate the conviction. State v. Sargent, supra. See also Eagle Thunder v. United States, 477 F.2d 1326 (8 Cir. 1973); Paradiso v. United States, 482 F.2d 409 (3 Cir. 1973). That position surely provided ample assurance no guilty plea will be upheld absent a record showing the defendant understood the nature of the charge brought against him. The majority’s holding a specific inquiry as to the defendant’s understanding should be hereafter required does little in my estimation to increase that assurance, and instead stands merely as an exaltation of form over substance. As it is, the fact a defendant states he understands the charge brought against him can hardly be conclusive on our determination he did indeed understand the charge. To make that determination, we must in the future as we have in the past under Sargent look to all the circumstances of a given case.

The second Sisco guideline discussed at length by the majority requires the trial judge to personally address the defendant and determine whether he is aware of the consequences of his plea. Citing Boykin v. Alabama, the majority holds compliance with this guideline will now require a record showing the defendant understands that by pleading guilty he waives three constitutional rights: (1) the privilege against compulsory self-incrimination; (2) the right to trial by jury; (3) the right to confront the witnesses against him. Implicit in this requirement is the majority’s apparent belief a guilty plea cannot be voluntary and intelligent unless the defendant is apprised specifically of at least these three constitutional rights he waives in so pleading and that an inquiry along that line is constitutionally mandated by Boykin. This, I submit, is not self-evident.

A number of federal circuit courts dealing with postconviction attacks on guilty pleas have concluded neither Boykin nor consideration of due process requires that a defendant be informed specifically of these rights which are waived by a guilty plea or that the waiver of the rights is a “consequence” of which defendant must be informed before the court is justified in accepting his plea. Wade v. Coiner, 468 F.2d 1059 (4 Cir. 1972); McChesney v. Henderson, 482 F.2d 1101 (5 Cir.1973), cert. den, 414 U.S. 1146, 94 S.Ct. 901, 39 L.Ed.2d 102; United States v. Sherman, 474 F.2d 303 (9 Cir. 1973); Davis v. United States, 470 F.2d 1128 (3 Cir. 1972); United States v. Frontero, 452 F.2d 406 (5 Cir. 1971); Hansen v. Mathews, 424 F.2d 1205 (7 Cir. 1970).

Numerous state courts, including our own, have taken a similar position, opting for the so-called “less strict” reading of Boykin. State v. Bell, 210 N.W.2d 423 (Iowa 1973); People v. Kuchulan, 390 Mich. 701, 213 N.W.2d 95 (1973); Heffley v. Warden, 89 Nev. 573, 516 P.2d 1403 (1973); Davis v. State, 277 So.2d 300 (Fla.App. 1973); Merrill v. State, 206 N.W.2d 828 (S.D.1973); Edwards v. State, 51 Wis.2d 231, 186 N.W.2d 193 (1973); State v. Phillips, 108 Ariz. 332, 498 P.2d 199 (1972); People v. Reeves, 50 Ill.2d 28, 276 N.E.2d 318 (1971); State v. Piacella, 27 Ohio St.2d 92, 271 N.E.2d 852 (1971); Raisley v. Sullivan, 8 Or.App. 332, 493 P.2d 745 (1972); Miracle v. Peyton, 211 Va. 123, 176 S.E.2d 339 (1970); Commonwealth v. Morrow, 296 N.E.2d 468 (Mass.1973); State v. Reed, 187 Neb. 792, 194 N.W.2d 179 (1972).

The Supreme Court in a decision handed down after Boykin casts considerable doubt on the constitutional necessity the three rights must be specifically enumerated and waived. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). See Notes, 7 Lincoln L.Rev. 137, 187 (1973), and 1974 Duke L.J. 149 for an argument Alford’s holding a trial court may accept a guilty plea accompanied by protestations of innocence makes a Fifth Amendment waiver no longer essential to a valid guilty plea.

The common thread running through the decisions of these courts opting for the less restrictive reading of Boykin is the belief a guilty plea may be intelligent and voluntary and therefore acceptable consistent with due process despite the absence of a record showing the three constitutional rights enumerated above were specifically mentioned by the trial judge. I subscribe to that belief and accordingly disagree with what seems to me the majority’s unnecessary modification of the second Sisco guideline. While I do feel the trial judge should be encouraged to advise the defendant of the various constitutional rights he waives by pleading guilty, I cannot keep company with the majority’s conclusion a failure of the record to show a specific enumeration of same gives rise to a presumption the guilty plea was not voluntary or intelligent. My position on this issue is that expressed by the Eighth Circuit in Todd v. Lockhart, 490 F.2d 626, 628 (8 Cir. 1974), holding that while a spreading on the record of a colloquy between the trial judge and defendant concerning the three rights might be material in determining the validity of a guilty plea in a given case, the absence thereof need not necessarily be conclusive as a finding the guilty plea was involuntary and unintelligent in all cases.

II. I think it evident from the majority’s discussion of the post-Sisco history in this jurisdiction that the fears expressed in the special concurring opinion in Sisco have been realized and our review of guilty plea convictions in Iowa has become marked by an' inquiry into not what the defendant knew at the time he entered his plea, but rather into what the trial judge told him at that time. It seems to me this preoccupation with the particulars of the trial judge’s conduct in guilty plea proceedings constitutes a rather subtle and unfortunate shift in the focus of the guilty plea inquiry away from the defendant and his understanding, which serves only to obfuscate the basic issue whether the plea was knowingly and voluntarily entered. The problem thus created for the reviewing court will in my judgment be merely exacerbated and compounded by the checklist approved by the majority today.

I would hasten to make clear at this point that while my objection to the new recommended procedure for guilty plea proceedings centers in part on the majority’s amplification of the first two Sisco guidelines, it is not directed so much to the content of the checklist as it is to policy considerations, and the fact the very existence of a checklist cannot but convey the impression non-literal compliance therewith by the trial courts of this state will in and of itself constitute sufficient grounds for the invalidation of guilty plea convictions. Unquestionably the number of often frivolous attacks on guilty plea convictions surfacing in the wake of Sisco has heavily taxed the resources of this court and the criminal justice system generally in Iowa. While it is difficult to measure the impact of the new checklist on this problem, it does seem doubtful the addition of thirty-odd points of inquiry to the four Sisco guidelines will diminish the number of these frivolous attacks and consequently the burden on the system.

I of course recognize the basic issue in this regard is due process, not the burden on the judiciary, but cannot avoid concluding the new procedures will only unnecessarily increase the latter without furthering the former. For while on the one hand non-literal compliance with the checklist will give rise to the presumption a guilty plea was improvidently accepted, and thereby encourage more frivolous appeals by defendants whose pleas otherwise satisfied the Sisco due process standards, on the other hand, literal compliance will ironically serve as presumptive evidence the plea was knowing and voluntary, even though such compliance may have been nothing more than a pro-forma ritualistic parrot-like recital by the trial court of the points contained therein, without any further investigation into the specific circumstances of a given defendant’s plea.

The sentiment first expressed in the special concurrence in Sisco has never been more pertinent:

“We are here adopting a mere ritual as an easy and pushbotton method of deciding in advance — without reference to the particular circumstances — when a plea of guilty fails to meet constitutional standards. I am fully aware the opinion announces that the formula used should not become ‘ritualistic’, but despite this admonition the inevitable result is just that.

“My objection is not (emphasis added) to the standards imposed but rather to the method which the opinion says must be followed in order to demonstrate they have been met. This completely disregards the real issue: was the plea voluntary; was it made with the full knowledge of the consequences; and was it made realizing the punishment which could be imposed? Apparently this now becomes of trifling importance. The inquiry no longer is what did the defendant know at the time he entered his plea, but what did the trial court tell him at that time. Even if he were to be fully aware of every fact the trial court could point out, a defendant would under this opinion nevertheless be entitled to have his plea set aside because his information did not come from a particular source.” Sisco, 169 N.W.2d at p. 552 (special concurring opinion).

III. The instant case involves two guilty plea convictions. The majority concludes the first of these must be set aside for the trial court’s failure to comply with the first, second and fourth Sisco guidelines in that the trial judge did not: (a) ask defendant whether he understood the charge; (b) advise him specifically of the three rights enumerated supra he waived by pleading guilty. Since I have taken the position neither the pronouncements in Boykin, considerations of due process, nor the rationale of our prior holdings require a record showing these two procedures were specifically followed by the trial judge as a prerequisite for proper acceptance of a guilty plea, I would affirm the conviction on the ground the guilty plea was knowing and voluntary on the basis of the entire record.

The majority reverses the second conviction on the ground the defendant was not apprised of the specific elements of the charge brought against him. Inasmuch as I believe compliance with the first Sisco guideline need not entail a recital by the trial judge of the specific elements of the crime charged, I would uphold the conviction on the ground the record shows the defendant did in fact understand the nature of the charge against him and otherwise entered a voluntary and intelligent plea of guilty.

I would affirm the trial court.

MOORE, C. J., and LeGRAND and UH-LENHOPP, JJ., join this dissent.