State v. Creech

710 P.2d 502, 109 Idaho 592, 1985 Ida. LEXIS 501

• Court: Idaho Supreme Court
• Decided: June 20, 1985
• Docket: 15475
• Status: Published

Opinions

DONALDSON, Chief Justice.

This appeal involves defendant’s post-conviction relief proceedings. The circumstances leading up to defendant’s conviction and sentencing are set out in State v. Creech, 105 Idaho 362, 670 P.2d 463 (1983) cert. denied, 465 U.S. 1051, 104 S.Ct. 1327, 79 L.Ed. 722 (1984). The proceedings subsequent to defendant’s sentencing were as follows.

On May 19, 1983, defendant filed a motion to withdraw his guilty plea. The motion was filed pursuant to I.C.R. 33(c) and alleged the following:

“1) the guilty plea in this case was accepted conditionally because the psychological examinations were not reported or finished by the time of the guilty plea ...;

“2) At the time of his guilty plea the appellant believed he had no defenses to the charge and he knowingly waived no defenses;

“3) appellant now realizes that the unprovoked, deadly-force attack on him by David Jensen negates the malice needed to make a killing murder;

“4) appellant never knowingly or intentionally waived the right to take his case to a jury authorized by law to convict him of manslaughter, a lesser included offense of murder;

“5) appellant now realizes that the psychological testing gives him a legal defense to the charge in that as Mr. Creech exceeded the lawful bounds of self-defense he did so because, due to mental disease or defect, he lost capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law;

“6) at the time of his plea the appellant had no idea he had an insanity defense to the charge and he did not knowingly, intelligently waive this defense;

“7) Tom Creech believed that his life would be in jeopardy from the administration of the prison if he revealed the causes and events which led to Jensen’s attack upon him;

“8) threats were made upon the lives of appellant’s family after his not guilty plea which pressured him to waive his trial and plead guilty;

“9) defendant’s guilty plea was caused by improper medical care:

“(a) during the period of time his case was before the district court, Tom Creech needed medication to maintain his brain chemistry in normal balance;

“(b) during the pendency of this case before the guilty plea the defendant was not maintained on his prescribed, antidepressant medication;

“(c) the interruption of the defendant’s prescription medicines by the neglect of State medics caused the suicidal depression which led defendant to plead guilty.”

Four days later, on May 23, 1983, this Court filed its opinion affirming defendant’s conviction and death sentence. On May 27,1983, the district court heard arguments by both parties as to whether a hearing would be necessary on defendant’s motion to withdraw his plea. The district court denied the defendant’s request for a hearing and took the matter under advisement. Then, on June 23, 1983, the district court issued an order refusing to rule on defendant’s motion to withdraw his plea until defendant’s direct appeal was finally remitted and returned to the district court by the Idaho Supreme Court. The remittitur was subsequently issued by the Supreme Court on September 21, 1983. In the meantime, however, the defendant appealed the district court’s refusal to rule on his motion to withdraw his guilty plea. On January 24, 1984, this Court dismissed that appeal because the district court’s order was not an appealable order and remanded the case immediately for all further proceedings on all pending matters. That same day, the district court, in response to the Supreme Court’s remand, issued the following order:

“The Supreme Court of the State of Idaho having returned and remitted this case back to this court for further proceedings on all pending matters, in accordance with its Order dated January 24, 1984, and it appearing to this court that all remaining post trial matters should be rigidly structured by this court so as to expeditiously handle such matters, and prevent excessive delay, and good cause appearing therefore:

“IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that all Uniform Post-conviction act proceedings, Habeas Corpus proceedings, and all other post trial motions of either party, be filed with this court not later than February 6, 1984. Any not filed will be deemed by this court to be waived by the parties hereto. Hearing on these matters, if any, shall commence February 21, 1984, at 10:00 a.m., and continue thereafter until completely disposed of by this court.

“IT IS FURTHER ORDERED, ADJUDGED, AND. DECREED that a hearing under the provisions of § 19-2715 of the Idaho Code is set by this court, on its own motion, for Monday, February 27, 1984 at 9:00 a.m., in front of this court.”

Pursuant to that order, defendant renewed his motion to withdraw his guilty plea. No other post-conviction relief was requested by defendant. On February 21-23, and February 27, 1984, all evidence admitted in prior proceedings was judicially noted and testimony was received on defendant’s motion. Then, on March 6, 1984, the district court issued the following order:

“This court, after considering the defendant’s Motion to Withdraw his Guilty Plea, denies his request. (See Rule 33(c) of the Idaho Criminal Rules) Thomas Eugene Creech’s plea and my sentence will stand! No Manifest injustice has been shown. A sentence of death is a tragic and extraordinary penalty, but when it is legally and properly imposed, execution must follow, or surely we are not a nation ruled and governed by law.

“IT IS SO ORDERED.”

Defendant now appeals, challenging the district court’s denial of his motion, the lack of findings supporting the district court’s denial and the propriety of the district court’s January 24, 1984, order consolidating all of defendant’s post-conviction motions into one proceeding.

I.

I.C.R. 33(c) establishes the standard for withdrawal of a guilty plea. That section provides: “A motion to withdraw a plea of guilty may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.”

“This distinction rests upon practical considerations important to the proper administration of justice____ Before sentencing, the inconvenience to court and prosecution resulting from a change of plea is ordinarily slight as compared with the public interest in protecting the right of the accused to trial by jury. But if a plea of guilty could be retracted with ease after sentence, the accused might be encouraged to plead guilty to test the weight of potential punishment, and withdraw the plea if the sentence were unexpectedly severe____ The result would be to undermine respect for the courts and fritter away the time/and painstaking effort devoted to the sentencing process.” (Emphasis in original). Russell v. State, 105 Idaho 497, 500, 670 P.2d 904, 907, (Ct.App.1983) (quoting Kadwell v. United States, 315 F.2d 667, 670 (9th Cir.1963)).

In this instance, defendant’s motion was filed after sentence was imposed by the district court. Therefore, the district court’s inquiry should have, and apparently was, focused on whether manifest injustice would result by not allowing defendant to withdraw his guilty plea. The district court found no manifest injustice in allowing defendant’s guilty plea to stand.

A motion to withdraw a guilty plea is addressed to the sound discretion of the district court. Kienlen v. U.S., 379 F.2d 20, 24 (10th Cir.1967). "With these principles in mind we must look to the whole record before us to determine whether it is manifestly unjust to preclude withdrawal of [defendant’s] guilty plea.” Id. In his motion to withdraw his guilty plea, the defendant enumerated nine grounds for allowing the withdrawal. These grounds can be synthesized into five grounds. Each will be reviewed in turn. First, in allegations 1, 5 and 6, the defendant submits that he entered his plea conditionally. His position is based on the following colloquy that occurred on Friday, August 28, 1981, when defendant entered his guilty plea.

“Mr. Kehne: I would just like to state that Mr. Creech has been seen by Dr. Stoner for psychiatric evaluations, and those evaluations are not completed at this time. We would like to reserve the right to come back to the court and withdraw the plea if it turns out Mr. Creech is in some way not competent to make this decision.

“The Court: I gather you have no objection to that, Mr. Harris?

“Mr. Harris: No.

“The Court: The court is certainly going to rely on this report before I make any changes.”

On December 8, 1981, Dr. Stoner issued a report which could be the basis for an insanity defense. He testified at the sentencing hearing on January 11, 1982, that at the time of the murder, the defendant was incapable of understanding the wrongfulness of his conduct. The defendant filed his motion to withdraw his guilty plea on May 19, 1983, almost a year and a half later. Defendant maintains that until he studied the appeal briefs he did not understand what Dr. Stoner’s testimony could mean for him. Defendant also claims that during this time lag his counselors and family talked him into withdrawing his plea.

The State points to several flaws in defendant’s position. The State first asserts that the most damaging evidence against Creech on this point is the time lag between the completion of Dr. Stoner’s psychiatric examination and defendant’s motion to withdraw his plea. It is the State’s position that defendant’s claim that he didn’t understand the consequences of Dr. Stoner’s report until a year and a half after it was issued is hard to believe, especially since the question of defendant’s sanity was reviewed at his sentencing hearing, defendant’s history shows that he has changed his story about what happened many times, and defendant admits to lying in order to manipulate the court. Moreover, the State points out that at the time of sentencing defendant was being represented by his present attorney who certainly knew the consequences of the report. Finally, the State submits Dr. La Marr Heyrend’s testimony from the sentencing hearing. Dr. Heyrend had also examined defendant and testified that defendant did appreciate the wrongfulness of his conduct.

The defendant’s next argument in support of his motion, based on allegations 2 through 4, is that his defense of self-defense to the first degree murder charge was not knowingly and intentionally waived. Defendant’s position is embodied in the following:

“A. [Creech] Well, first of all, I thought that I was charged with first degree murder, which I had been told when that new law was passed, that anybody that killed another inmate in prison that was already doing time for murder, that it was automatic first degree murder.

“Q. [Mr. Kehne] By the time you wrote that letter, had you and any attorneys talked about the difference between manslaughter and first degree murder surrounding the case?

“A. No.”

Defendant again maintains that the time lag between when he entered his guilty plea and when he filed his motion was attributable to the fact that until he read his appeal briefs he didn’t understand that he had a possible defense.

The State’s response to defendant’s position is two pronged. First, the State contends that defendant did not kill in self-defense and thus is guilty of first degree murder. In support of their theory, the State introduced defendant’s prior testimony that he intended to kill Jensen, that he planned the murder in advance and that part of that plan may even have been to make it appear that he was acting in self-defense. Second, the State contends that defendant knew exactly what charge he was pleading guilty to and that he knew that he was waiving all defenses by pleading guilty. In support of this theory, the State introduced defendant’s prior testimony that he knew the charge and the consequences of his guilty plea. The State also suggests that based on defendant’s extensive involvement in prior murder trials involving self-defense, defendant was well aware of the difference between manslaughter and murder.

The defendant’s third argument in support of his motion is based on allegation 7. The defendant’s exact position on this point is a bit hazy. It seems to be either that he pled guilty because that is what he thought the prison authorities wanted him to do, or that his statement about his intentions of committing the murder and his guilt were contrived so that he would not have to return to the penitentiary and face harassment from the other inmates and guards. In either case, the only evidence supporting Creech’s position is his own testimony.

Defendant’s fourth argument in support of his motion is based on allegation 8. Defendant’s position is that he pled guilty because of threats to his family. However, defendant offers no evidence other than his own assertions to support this argument.

Finally, in allegation 9, defendant maintains that the interruption of his medication by state medics caused him to become suicidally depressed and that is why he pled guilty. Again, defendant’s only evidence for these assertions is his own testimony.

A review of the proceedings during which defendant entered his plea also reveals that defendant was fully advised of his right to plead not guilty, that he was questioned concerning his knowledge of the charge, that he was advised of the sentencing consequences of a guilty plea to first degree murder, and that he was informed that by pleading guilty he would relinquish the constitutional protections provided by a trial. The record shows that the court made every reasonable attempt to make certain the appellant’s plea was entered voluntarily and with a full understanding of its import. See State v. Ruth, 98 Idaho 879, 574 P.2d 1357 (1978). Defendant was represented by counsel prior to the hearing when he entered his guilty plea and his counsel was present at the hearing. Although defense counsel asked to be dismissed from the case because defendant refused to comply with his advice, the district court refused so that defendant could continue to have the advice of counsel. The defendant was not, as the dissent alleges, “encouraged” by the district court to plead guilty. As the dissent notes, the transcript is very telling:

“Q. When did you decide to plead guilty?

“A. I have been thinking about it ever since I was arrested for this charge.

“Q. Why did you decide to plead guilty?

“A. Because I am guilty.

“Q. Are you pleading guilty freely and voluntarily?

“A. Yes, sir.

“Q. I gather that you discussed this matter of pleading guilty with your attorney?

“A. Yes, sir. My attorney advised me not to plead.

“Q. And I gather that, for the record, is Mr. Kehne?

“A. Yes, sir.

“Q. Do you feel you have had sufficient time to discuss this matter with Mr. Kehne?

“A. Yes, sir.

“Q. Have you explained to Mr. Kehne everything you know about this charge?

“A. Yes, sir.

“Q. Has Mr. Kehne advised you to your satisfaction of your rights, defenses, and the possible consequences to you of a plea of guilty?

“A. Yes, sir.

“Q. And I gather that this is your own free wishes here today?

“A. Yes, sir.

“Q. This is what you want to do, even considering the wishes of your counsel?

“A. Yes.

“Q. Are you satisfied other than this last point at least with your attorney’s representation of you in this matter?

“A. Yes, sir.

“Q. And after all these questions, Mr. Creech, and everything I have asked you and after talking to your attorney this morning, which I gave you an opportunity to do, do you still want to plead guilty?

“A. Yes sir.”

As in Faretta v. California, 422 U.S. 806, 817, 95 S.Ct. 2525, 2532, 45 L.Ed.2d 562 (1975), “we confront here a nearly universal conviction, on the part of our people as well as our courts, that forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so.” Based on an entire review of defendant’s proceedings to date, we affirm the district court’s finding that it would not be manifestly unjust to allow defendant’s guilty plea to stand.

The defendant further contends that the district court should have included detailed findings of fact and conclusions of law in its order denying defendant’s motion. While written findings may be required in rulings on motions brought pursuant to the Uniform Post-Conviction Relief Act, nothing in I.C.R. 33(c) requires a trial court to make written findings when ruling on a motion to withdraw a guilty plea after sentencing.¹ Therefore, the district court’s order was adequate.

II.

The defendant also challenges the propriety of the January 24 order consolidating all of defendant’s post-conviction motions. Defendant first claims that it was fundamentally unfair for the district court to so limit the time period within which he was required to raise his post-conviction motions. However, the United States Supreme Court has approved the use of summary procedures for the expeditious resolution of collateral proceedings in death penalty cases. Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 77 L.Ed. 1090 (1983). In this case, defendant was initially sentenced by the district court on January 25, 1982. His sentence was affirmed by this Court on May 23, 1983. It was not until January 24, 1984, that defendant was required to make his final post-conviction challenges. Under these circumstances we do not find the district court’s January 24 order improper.

Defendant also challenges that portion of the January 24 order which deemed all issues not raised in the proceedings waived. However, during the proceedings defendant did not seek to raise any issues other than withdrawal of his guilty plea. On appeal, defendant has failed to show that he has been prejudiced in any way by the waiver portion of the order. Therefore, the issue is not properly before us. Cf. State v. Standlee, 96 Idaho 165, 168, 525 P.2d 360, 363 (1974).

No costs on appeal.

No attorney fees on appeal.

SHEPARD, BAKES and HUNTLEY, JJ., concur.

1 . Although not cited by the defendant, we take judicial notice of State v. Howell, 104 Idaho 393, 659 P.2d 147 (1983), where the Court of Appeals stated that a ruling on a motion to withdraw a guilty plea must be supported by written findings. Howell does not apply to this case for two reasons. First, the statement requiring written findings was dicta. Second, that case involved a motion to withdraw a guilty plea before sentencing.