State v. Tweedy

309 N.W.2d 94, 209 Neb. 649, 1981 Neb. LEXIS 958

Opinions

Hastings, J.

The defendant, Richard L. Tweedy, has appealed from the District Court for Dodge County which affirmed a county court conviction of Tweedy for second offense driving while under the influence of alcoholic liquor. Defendant received a sentence of 90 days in the Dodge County jail and suspension of his driver’s license for 1 year. The defendant as signs as error the court’s refusal to allow the defendant to withdraw his plea because the court had not established a voluntary and intelligent waiver of his constitutional rights when the court accepted defendant’s guilty plea; the failure to find a factual basis for the plea; and the failure to follow the sentencing recommendations of the prosecuting attorney. We reverse.

The defendant had initially been charged on August 1, 1979, with third offense driving while under the influence of alcohol. Pursuant to a plea bargain, on September 27, 1979, the complaint was amended to second offense driving while under the influence of alcohol, and the defendant pleaded guilty to the amended charge. The Dodge County attorney’s office recommended a 2-year probation to include a $200 fine, loss of driving privileges during probation except for work and probationary purposes, and antibuse and inpatient treatment if deemed necessary by the Dodge County Chemical Abuse Program staff. The court pointed out to the defendant that such recommendation was only that of the county attorney’s office and that the court was not obligated to “follow any plea agreement.” After hearing from the defendant that he was pleading guilty because he did in fact commit the crime, the county court accepted the plea and ordered the defendant to report to the chief probation officer for a presentence investigation and to the Dodge County Chemical Abuse Program office for evaluation and testing. A presentence report was furnished to the court on October 25, 1979, which contained overwhelming evidence in the section containing the police report to support a finding of driving while intoxicated, including a gas chromatograph test of twenty-hundredths of one percent.

The matter came on for sentencing on December 3, 1979. On that date the court continued the matter until January 3, 1980, and deferred sentencing pending the defendant’s successful completion of inpatient treatment at an approved treatment facility of his choice. The matter again came on for sentencing on May 15, 1980. By that time, the court had learned that the defendant had been terminated from the treatment program because of two unexcused absences. The court ordered the defendant to serve 90 days in the Dodge County jail, and a 1-year suspension of his driver’s license. The sentence and conviction were appealed to the District Court for Dodge County and there affirmed.

Defendant’s second and third assignments of error may be disposed of rather quickly. The preferred procedure for ascertaining whether or not a factual basis exists to support a guilty plea is to inquire directly of the defendant. However, an examination of a presentence report containing such facts made before sentencing is an acceptable alternative. State v. Daniels 190 Neb. 602, 211 N.W.2d 127 (1973); State v. Leger, 190 Neb. 352, 208 N.W.2d 276 (1973). We have also suggested that by a defendant admitting that he is in fact guilty of the crime charged, he has furnished a factual basis for accepting the plea. State v. Hyslop, 189 Neb. 331, 202 N.W.2d 595 (1972).

There are two answers to the defendant’s contention that the trial court failed to follow the recommendations of the county attorney. A defendant has no legal basis to rely on a sentence recommended as part of a plea bargain where the trial court has made it clear that it was not in any way bound by such agreement. State v. Ristau, 201 Neb. 784, 272 N.W.2d 274 (1978). Furthermore, the court made it abundantly clear to the defendant that before it would consider probation for the defendant it would be necessary for him to complete a program of inpatient treatment for alcohol. He failed to do so.

There is no merit to either of these two assignments of error.

A more difficult problem is presented by defendant’s claim that there was no voluntary and intelligent waiver of his constitutional rights prior to the accept anee of his guilty plea. In other words, we are faced with the general question of the applicability of the principles of Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), to misdemeanors. Boykin identified the three main constitutional rights waived when a plea of guilty is accepted, i.e., the privilege against self-incrimination, the right to trial by jury, and the right to confront one’s accusers. “We cannot presume a waiver of these three important federal rights from a silent record.” Boykin at 243.

This court has been reluctant to embrace unequivocally the specific holdings of Boykin. “This requirement of an item-by-item review of constitutional rights on a guilty plea is a strained and a too extreme construction of those cases.” State v. Turner, 186 Neb. 424, 425, 183 N.W.2d 763, 765 (1971). However, we did adopt the holding of Boykin in principle. “What Boykin says is that the court cannot presume a waiver of federal constitutional rights from a silent record. That case requires that a plea of guilty must not only be intelligent and voluntary to be valid but the record must affirmatively disclose that the defendant entered his plea understandingly and voluntarily.” Turner at 425, 183 N.W.2d at 765, If we concede that the record must affirmatively show an intelligent plea, understandingly entered, it is difficult to imagine how this can be demonstrated unless that same record discloses knowledge on the part of a defendant as to what rights he is waiving when entering such plea.

In any event, does the Boykin-Turner rule apply to misdemeanor proceedings? The courts of several of our sister states have encountered the same problem. In an exhaustive opinion by Tobriner, J., the California Supreme Court in Mills v. Municipal Court, 10 Cal. 3d 288, 515 P.2d 273, 110 Cal. Rptr. 329 (1973), held that Boykin was applicable to all misdemeanors regardless of penalty. “A misdemeanor defendant no less than a felony defendant relinquishes various constitutional rights by entering a plea of guilty. There is no question, of course, that in misdemeanor proceedings a defendant retains fully both his right to confront his accusers and his privilege against self-incrimination [citations omitted]; moreover, in this state, every misdemeanor defendant has a right to a trial by jury.” Mills at 298, 515 P.2d at 280, 110 Cal. Rptr. at 336. “The People have suggested no logical basis for confining the rulings of Boykin and Tahl to the felony context in which they were enunciated, and we can discern no rational ground for such a distinction.” Id. at 299, 515 P.2d at 281, 110 Cal. Rptr. at 337. “Under these circumstances, we believe that it would be more expedient simply to provide for an adequate record of a defendant’s waivers in all felony and misdemeanor cases, rather than to require the trial court first to make a pre-arraignment determination of the potential sentence a misdemeanor defendant might receive, and then to obtain explicit waivers from those who face imprisonment.” Id. at 301, 515 P.2d at 282, 110 Cal. Rptr. at 338.

In Cleveland v. Whipkey, 29 Ohio App. 2d 79, 278 N.E.2d 374 (1972), the Supreme Court of Ohio reached a similar conclusion. “The Supreme Court, however, did not limit its decisions to felonies nor did it include or exclude misdemeanors. The court only made flat assertions that these rights and privileges applied to criminal cases.

“Academically, and based on sound legal reasoning, these same rules should apply to misdemeanors as well as felonies. Valid reasons have not been presented why the Supreme Court rules regarding waivers of constitutional rights should not apply to misdemeanors as well as to felonies. The labels of ‘misdemeanor’ and ‘felony’ should not control whether a defendant is entitled to all of his constitutional rights.” Cleveland at 84, 278 N.E.2d at 378.

The Michigan Court of Appeals in People v. Tomlinson, 50 Mich. App. 655, 213 N.W.2d 803 (1973), apparently following general court rules promulgated by the Supreme Court, refused to apply the requirements of Boykin to “simple misdemeanors,” i.e., those where the penalty is less than 6 months’ imprisonment. Its reason for such decision was that “less solicitude is required than reciting the litany of constitutional rights which the defendant is waiving” in a case involving a 10-day jail sentence and a $50 fine. Tomlinson at 659, 213 N.W.2d at 805.

Although holding that the record did show that defendant was made aware of the constitutional rights which would be waived by a guilty plea, the court in Crew v. Nelson, 88 S.D. 162, 216 N.W.2d 565 (1974), held that Boykin was applicable to misdemeanor cases. “We first conclude that the Boykin standards of arraignment apply generally to misdemeanor cases. A misdemeanor defendant has the same rights to trial, to confronting his accusers, and to his privilege against self-incrimination. Thus we see no rational basis for making a distinction between a felony and a misdemeanor case.” Crew at 164-65, 216 N.W.2d at 566.

We do recognize, however, that there is a vast difference between the impact of a waiver of constitutional rights when one’s liberty is involved as opposed to his pocketbook. In Argersinger v. Hamlin, 407 U.S. 25, 92 S. Ct. 2006, 32 L. Ed. 2d 530 (1972), the Court held that no person may be imprisoned for any offense absent a knowing and intelligent waiver of counsel. In arriving at that decision, the Court reviewed the authorities providing for specified standards required under the sixth amendment for all criminal prosecutions. These included the requirement of a public trial, the right to be informed of the nature and cause of the accusation, the right of confrontation, and compulsory process for obtaining the attendance of witnesses. “We have never limited these rights to felonies or to lesser but serious offenses.” Argersinger at 28.

We therefore hold that no defendant may be imprisoned for any offense, whether a traffic infraction, misdemeanor, or felony, absent a knowing and intelli gent waiver of his rights as provided for by the BoykinTurner rule. That means that such defendants are entitled to be informed of the nature of the charges against them, the right to assistance of counsel, the right to confront witnesses against them, the right to a jury trial where otherwise authorized, and the privilege against self-incrimination. A voluntary and intelligent waiver of these rights must affirmatively appear from the record.

We realize that this holding may place some additional burdens on some of the municipal and county courts which have not heretofore followed this procedure. Therefore, the rule announced today is to be applied prospectively only, i.e., to guilty pleas taken after the date of the issuance of the mandate in this case.

It remains only for us to apply these principles to the instant case. The defendant was represented by counsel at all stages of the proceedings. (We should mention, however, that counsel was not the same as the one representing the defendant on this appeal.) The defendant was advised that the charges against him had been reduced from third offense to second offense driving while intoxicated. The defendant declared that no threats or promises had been made to him. He was advised that the recommendations of the county attorney as to probation were not binding on the court. The trial court then stated “[t]hat the Court isn’t obligated to follow any plea agreement. Do you understand what your rights are in this Court?” to which the defendant replied “Uh — yes”; following which the trial court stated, “Do you have any question about any of those rights at this time that you wish to have explained?” and the defendant said “No.” He was told of the possible penalties. The defendant was then asked by the court if he entered “this plea of guilty voluntarily, knowingly, intelligently and with understanding of the consequences of your plea,” and he replied “Yes.”

It is readily apparent that the record fails to disclose that defendant knew of his right to a jury trial, of the right to confront witnesses against him, or of the privilege against self-incrimination. It is therefore impossible to conclude from a record entirely barren of any facts demonstrating that defendant understood his various rights that the defendant voluntarily and intelligently gave them up by pleading guilty. The case is reversed, defendant’s conviction is vacated, and the cause is remanded to the District Court for further proceedings.

Before concluding, however, we cannot urge strongly enough that all courts should devise and implement a standard procedure for explaining the various rights to defendants entering pleas of guilty. If this is done, there should be no reason in the future for a court to fail to properly advise defendants of their constitutional rights when offering pleas of guilty. However, we should hasten to add that defense counsel are not immune from their share of criticism in cases of this kind. The fact that we employ the adversary system in the administration of justice does not mean that defense counsel have no responsibility to the court. It is incumbent upon counsel to take the necessary precautions to ensure that the record made adequately demonstrates for the benefit of the court that the defendant has knowledge of his rights and freely and voluntarily waives them before allowing him to plead guilty.

Reversed and remanded.