State v. Lemburg

257 N.W.2d 39, 1977 Iowa Sup. LEXIS 1132
CourtSupreme Court of Iowa
DecidedAugust 31, 1977
Docket2-59848
StatusPublished
Cited by19 cases

This text of 257 N.W.2d 39 (State v. Lemburg) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Lemburg, 257 N.W.2d 39, 1977 Iowa Sup. LEXIS 1132 (iowa 1977).

Opinions

HARRIS, Justice.

These two consolidated appeals arise from a plea of guilty to the crime of assault with intent to commit murder in violation of § 690.6, The Code. Defendant Lemburg sought postconviction relief under chapter 663A, The Code, and appeals the trial court’s denial of relief. In addition, Lem-burg was given permission for a delayed appeal from his conviction by his guilty plea in the same proceeding. We affirm the trial court on both appeals.

The facts are without serious dispute. On April 12, 1971 Jack L. Lemburg (Lem-burg) was indicted on the charge by the Linn County grand jury. He was arraigned on the same day, waived time, and entered a plea of not guilty. On June 22, 1971 he appeared in district court and changed his plea from not guilty to guilty as charged. Lemburg was represented at the time by two Cedar Rapids attorneys whose competence he assails in these proceedings. He claims pressure was inflicted upon him to enter a guilty plea in violation of his constitutional rights and that his plea was not voluntarily entered. He further claims he was not at the time in control of his faculties.

An evidentiary hearing was held on Lem-burg’s claim on June 25, 1976 after which the trial court filed its ruling which found (1) he had been represented by competent counsel, and (2) the trial court before accepting Lemburg’s guilty plea complied with the requirements of State v. Sisco, 169 N.W.2d 542 (Iowa 1969) and Brainard v. State, 222 N.W.2d 711 (Iowa 1974). The trial court denied and dismissed Lemburg’s application for postconviction relief.

I. Lemburg first contends his guilty plea was not knowingly and intelligently entered. He believes the trial court’s colloquy at the time of his plea was insufficient to show he understood the nature of the charge against him. He argues the elements of the charge were not com[41]*41pletely explained. The issue involves the first two requisites for taking guilty pleas set down in Sisco, supra. The first Sisco requirement is that the accused understand the charge. The second Sisco requirement is the determination of whether the accused understands the penal consequences of his guilty plea. Only if both requisites are satisfied can it be said an accused’s guilty plea was knowingly and intelligently entered.1

Turning to the first Sisco requirement, defendant’s understanding of the charge, we note the colloquy between the trial court and defendant on the subject was as follows:

“THE COURT: * * * Mr. Lemburg, I’m going to have to ask you a number of questions to make sure basically of two things: if this decision to change your plea from not guilty to guilty is your own voluntary decision, and secondly, to make sure that you do understand what your legal rights are—
“THE DEFENDANT: Yes.
“THE COURT: —and that you are giving up certain basic legal rights when you plea guilty. All right. To begin with, Mr. Lemburg, you are accused of the felony offense of assault with intent to commit murder in violation of Iowa Code Section 690.6. That Code Section provides as follows: ‘If any person assault another with intent to commit murder, he shall be imprisoned in the penitentiary not exceeding thirty years.’ Do you understand that that is the description of the offense and that is the punishment that is provided?
“THE DEFENDANT: Yes, sir.
“THE COURT: Now I’m going to discuss with you in a little more detail the sentencing. In Iowa the sentence that would be imposed would read as follows: ‘That the defendant shall be imprisoned in the Iowa State Penitentiary at Fort Madison, Iowa, for an indeterminate period of time not to exceed 30 years.’ I would have no power to prescribe a shorter period of time. The actual length of time you would serve would depend on whether or not you were granted parole, would depend whether or not you obtained the time off for good behavior. But in no event would the incarceration be for greater than 30 years. Do you understand that?
“THE DEFENDANT: Yes.
“THE COURT: All right. Do you understand that murder is defined in the Iowa Code as killing any human being with malice aforethought either express or implied?
“THE DEFENDANT: Yes.
“THE COURT: Do you understand that by pleading guilty you are admitting that you did in Linn County, Iowa, on or about February 21, 1971, assault Joan M. Lloyd with intent to murder her?
“THE DEFENDANT: Yes.
“THE COURT: And by pleading guilty you are admitting that you did that.
“THE DEFENDANT: Yes.
“THE COURT: Malice aforethought— now murder, I might point out, Mr. Lem-burg, does not require that you had at the time a specific intent to kill her. It requires only that there be the assault with intent to commit murder. The intent to commit murder is the state of mind of malice, where you did so without regard to whether the victim would live or die. Do you understand that?
“THE DEFENDANT: Yes.
“THE COURT: All right. Mr. Lemburg, you are charged with assault with intent to commit murder. How do you now plead?
“THE DEFENDANT: Guilty.
U * * #
“THE COURT: All right. I’m going to go through the legal rights you have with you. I think you may be acquainted with them but I want to make sure you know what they are. You understand that you have a legal right, if you wish, to stick with your plea of not guilty.
[42]*42“THE DEPENDANT: Yes.
“THE COURT: And in that event you would have a jury trial, either this coining Monday or at some later date depending on the status of the Petition for Writ of Cer-tiorari.
“THE DEPENDANT: (Nod in the affirmative.)
“THE COURT: Do you understand that you would have a right to not be convicted—
“THE DEPENDANT: Yes.
“THE COURT: —of this crime unless the State proved to all 12 jurors by its evidence beyond a reasonable doubt that you are in fact guilty? Do you understand that?
“THE DEPENDANT: Yes.
“THE COURT: Do you understand you would have the right to have the assistance of Mr. Sullivan and Mr. Pundt — I believe both of you are appointed in this case; is that correct?
“MR. SULLIVAN: Correct.
“MR. PUNDT: Correct.
“THE COURT: —to assist you in the trial of this case; do you understand that?
“THE DEPENDANT: Yes, sir.
“THE COURT: You would have the right to have all the State’s witnesses personally brought into court, personally confront them and have your attorneys cross-examine them.

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State v. Lemburg
257 N.W.2d 39 (Supreme Court of Iowa, 1977)

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Bluebook (online)
257 N.W.2d 39, 1977 Iowa Sup. LEXIS 1132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-lemburg-iowa-1977.