Lipps v. State

484 P.2d 734 (1971) 94 Idaho 185

Gerald Clarence LIPPS, Petitioner-Appellant,
v.
The STATE of Idaho, Defendant-Respondent.

No. 10626.

Supreme Court of Idaho.

April 27, 1971.

Michael C. Moore, Lewiston, for petitioner-appellant.

Robert M. Robson, Atty. Gen., Martin R. Ward, Asst. Atty. Gen., Boise, Roy E. Mosman, Lewiston, for defendant-respondent.

SPEAR, Justice.

This appeal is taken from a decision of the district court denying appellant relief under the Idaho Uniform Post-Conviction Procedure Act. I.C. § 19-4901 et seq. Appellant submitted his petition for post-conviction relief, and hearing was held, subsequent to the following events:

A criminal complaint was filed on January 29, 1969 charging appellant with the unlawful importation, sale or furnishing of narcotic drugs in violation of I.C. § 37 3204. After his arrest and preliminary hearing, an information was issued in which appellant was held to answer for five violations of the state's narcotics statutes, specifically I.C. § 37-3203, I.C. § 37-3204 (two counts) and I.C. § 37-3302 (two counts).

At the arraignment, appellant was represented by counsel who advised him to plead guilty. Prior to asking for appellant's plea, the district judge explained the state's burden of proof in a criminal case, the accused's right to cross-examine the state's witnesses, the right to confer with counsel, and that a plea of guilty had to be given understandingly. Appellant answered that he understood all the judge's comments and pleaded guilty to two charges: unlawful possession of narcotics for sale and unlawful importation, sale or furnishing or narcotic drugs.

A hearing in mitigation and aggravation of sentence was held on April 10, 1969. At the conclusion of this hearing, appellant was sentenced to three years in the Idaho State Penitentiary on both of the counts, the sentences to run consecutively.

In June, 1969, after his incarceration had begun, appellant submitted a petition for post-conviction relief in which he stated that he had not been informed by the court that he could appeal, that his attorney did not adequately represent him, and that his guilty plea had been coerced. Hearing was held on appellant's petition on December 2, 1969. Appellant testified that when he conferred with his attorney and decided to plead guilty prior to the arraignment, he was suffering from hallucinations. He also testified that he was not advised by the court of his right to appeal and his right to appointed counsel on appeal prior to his guilty plea.

The district court denied appellant's request for post-conviction relief. This appeal is taken from the district court's disposition of appellant's petition.

Appellant alleges three assignments of error as cause for reversal in this case. First he contends that the district court erred in dismissing his petition since the facts adduced at the hearing were sufficient to show that his plea of guilty was not knowingly and understandingly entered. Next he alleges that the petition should not have been dismissed because he was never advised of his right to appeal from the judgment of conviction or of his right to have court-appointed counsel to represent him on appeal. Finally, the appellant argues that it was improper for the district court to admit evidence of his past criminal record since it was not proper impeachment.

Regarding appellant's first assignment of error, we feel that the evidence before the district court was adequate to sustain the court's dismissal of the petition. It clearly discloses that appellant's plea of guilty was given understandingly and knowingly. Appellant put on no evidence other than his own testimony as proof that he was suffering from the effects of drugs at the time he decided to plead guilty. Furthermore, our examination of the arraignment transcript discloses that the district judge very thoroughly explained to appellant his rights before that court and the effect of pleading guilty. All appellant's responses to the judge's remarks seemed to be rational and indicated a coherent appreciation of the nature of the proceeding. Where there is competent and substantial evidence to support the district court's conclusions, this court will not disturb such findings on appeal. State v. Hinkley, 93 Idaho 872, 477 P.2d 495 (1970); Jones v. State, 93 Idaho 859, 477 P.2d 101 (1970).

Appellant's second assignment of error is also without merit. We have recently held that there is no ground for post-conviction relief where the district judge has not advised an accused of his right to appeal. State v. Hinkley, supra; Pulver v. State, 93 Idaho 687, 471 P.2d 74 (1970). Furthermore, there was evidence of appellant's knowledge of his right to appeal notwithstanding the district court's failure to so advise him at the arraignment hearing. At the post-conviction hearing appellant testified that he broached the subject of appeal with his attorney soon after he was sentenced.

Since it was unnecessary for the district court to have advised appellant of his right to appeal, it follows that it was also unnecessary to have advised him of his right to have court-appointed counsel to represent him on appeal.

We find that no error was committed in this post-conviction proceeding by admission of evidence of appellant's prior criminal record. This evidence was not submitted for impeachment purposes. Rather, the prosecutor sought appellant's testimony on the matter and the judge admitted it to establish that appellant had some prior experience with the criminal process and therefore must have understood the nature of what was transpiring at the arraignment hearing. Since the evidence was offered by the State to rebut one of the issues raised by appellant, we believe it was properly admitted and considered.

Decision of the district court denying post-conviction relief affirmed.

McQUADE, C.J., and McFADDEN, DONALDSON and SHEPARD, JJ., concur.