Pulver v. State

471 P.2d 74, 93 Idaho 687, 1970 Ida. LEXIS 237
CourtIdaho Supreme Court
DecidedJune 2, 1970
Docket10476
StatusPublished
Cited by34 cases

This text of 471 P.2d 74 (Pulver v. State) is published on Counsel Stack Legal Research, covering Idaho Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pulver v. State, 471 P.2d 74, 93 Idaho 687, 1970 Ida. LEXIS 237 (Idaho 1970).

Opinions

DONALDSON, Justice.

Harvey Pulver (petitioner-appellant) pled guilty to the charge of Second Degree Murder on January 4, 1965, and received an indeterminate sentence, not to exceed 75 years. While serving his sentence in the Idaho State Penitentiary, Pulver filed a Motion for Post-Conviction Relief alleging that he was being held in unlawful custody since:

(1) His plea of guilty was entered under duress (threat of hanging, threat of being prosecuted as a recidivist, and for other crimes) ;

(2) He was misrepresented and inadequately represented by counsel;

(3) He was denied his right to appeal;

[689]*689(4) The sentence imposed upon him was illegal (75 years) ;

(5) He was possessed of facts which would have proved his innocence, but not brought forth on advice of counsel.

The district court dismissed Pulver’s Motion for Post-Conviction Relief since in the opinion of the district court:

“ * * * it appears that none of the rights of the Movant were impugned or taken .advantage of. It appears that he was duly represented, and was fully advised at all times as to his rights in the matter.” 1

The order concluded that “unless new and additional grounds are presented to the Court that the petition will be dismissed within twenty days, as provided by the Statute.”

No such grounds were presented and an appeal was taken from the dismissal order on December 22, 1967. This Court dismissed the appeal as being premature, holding that the order was only indicative of the district court’s intention to dismiss, rather than being a final judgment of dismissal. In the decision2 this Court noted the deficiency of the record and that the record showed the case to be still pending.

Therefore a motion for final judgment was made in the district court. Such a judgment was entered on February 24, 1969, and this appeal was taken therefrom on March 4, 1969.

Appellant contends that the trial court erred in dismissing his Motion for Post-Conviction Relief since his plea of guilty was obtained by duress, fraud, and undue influence. Appellant furthermore asserts his plea was entered without an understanding of its true import.

On August 6, 1964, Harvey Pulver was indicted for First Degree Murder (murder while perpetrating burglary). On January 4, 1965, Pulver appeared in district court accompanied by his attorney and the prosecuting attorney. Pulver, indicted for First Degree Murder, asked permission of the .court to tender a plea of guilty to the crime of Second Degree Murder. In response to the court’s questioning it was found that a plea to Second Degree Murder was agreeable with the state and that the defendant, Pulver, desired to be permitted to enter a plea of guilty to the lesser included offense. Pulver indicated to the court, in the presence of his counsel, that he had discussed his plea with counsel and understood the significance of entering a plea of guilty to the crime of Second Degree Murder, and the penalty that could be imposed. Pulver then entered his plea of guilty to the included offense of Second Degree Murder. Thereupon, the district court adjudged Pulver guilty and ordered him to appear for sentencing. On January 19, 1965, Pulver was sentenced to the Idaho State Penitentiary for an indeterminate term not to exceed seventy-five (75) years.

At oral argument of this case before this Court, a motion was made by the respondent (State of Idaho) to have a letter, written by B. A. McDevitt, trial counsel for appellant, made a part of the record on appeal. The correspondence disclosed that prior to the entry of appellant’s plea of guilty to the reduced charge, Pulver and his counsel had discussed, deliberated, and decided that the plea should be entered. The information contained in the letter is material and relevant but this Court must deny the respondent’s motion since the letter in question was not considered by the trial court in reaching its decision. The letter cannot, therefore, be considered by this Court on appeal. Nevertheless the record discloses circumstances which show that Pulver’s plea was intelligently made with a thorough understanding of its import and consequences.

“In a sense, it can be said that most guilty pleas are the result of a ‘bargain’ with the prosecutor. But this, standing alone, does not vitiate such pleas. A guilty defendant must always weigh the [690]*690possibility of his conviction on all counts, and the possibility of his getting the maximum sentence, against the possibility that he can plead to fewer, or less■er, offenses, and perhaps receive a light•er sentence. The latter possibility exists if he pleads guilty * * *.
No competent lawyer, discussing a possible guilty plea with a client, could fail to canvass these possible alternatives with him. Nor would he fail to ascertain the willingness of the prosecutor to '‘go along.’ * * *
The important thing is not that there •shall be no ‘deal’ or ‘bargain’, but that the plea shall be a genuine one, by a defendant who is guilty; one who understands his situation, his rights, and the ■consequences of the plea, and is neither deceived nor coerced.” Cortez v. United States, 337 F.2d 699 at 701 (9th Cir. 1964).

The Federal Rules of Criminal ^Procedure 3 have articulated a standard for accepting guilty pleas. A defendant may plead guilty with the consent of the court. The court however cannot accept the plea without first determining that the plea is made voluntarily with understanding of the ■nature of the charge. In view of the several criteria discussed above and their application to the circumstances presented by the case at bar it cannot be said that Pulver’s plea of guilty was entered under duress nor was it entered without an understanding of its true import, although appellant has so alleged.

Appellant’s next assignment of •error concerns the trial court’s refusal to grant the relief requested since Pulver claims that he was misrepresented and inadequately represented by counsel. This specification of error really involves two distinct claims and we will deal with each individually. The record affirmatively shows that appellant’s counsel represented his interests in good faith. Numerous motions were made for the purpose of protecting Pulver’s rights.4

“The handling of the defense by counsel will not be declared inadequate except in cases where counsel displays such a lack of diligence and competence as to reduce the trial to a ‘farce or sham’. People v. Ricks, 161 Cal.App.2d 674, 327 P.2d 209 (1958); 23 C.J.S. Criminal Law § 982(8), pp. 968-970.” State v. Freeman, 85 Idaho 339 at 348, 379 P.2d 632 at 637 (1963).

The second point raised by appellant regarding his allegation of inadequate counsel involves the claim that multiple representation of four co-defendants in a capital case is violative of his sixth amendment rights. This Court has considered the propriety of representation by one attorney of several co-defendants in the case of State v. Oldham, 92 Idaho 124, 438 P.2d 275 (1968).

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Bluebook (online)
471 P.2d 74, 93 Idaho 687, 1970 Ida. LEXIS 237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pulver-v-state-idaho-1970.