RABINOWITZ, Justice.
On the first occasion this matter was before us it was remanded to the trial court for the purpose of holding a hearing in conformity with Criminal Rule 35(b).
Originally appellant was tried upon a three-count indictment. After the state had presented its case in chief and appellant had testified, appellant withdrew his not-guilty plea to a forgery count and pled guilty thereto. At the time this matter was initially before us appellant had claimed
that he was coerced into withdrawing his plea of not guilty and entering a plea of guilty by his court appointed counsel, who threatened to withdraw if this was not done, at the same time assuring him that if he did so he (counsel) would guarantee that the probation officer would recommend probation.
In our opinion we concluded that these assertions raised an issue of fact which could not be “resolved in an appeal and which should have been determined in an acceptable manner by the trial court.”
Upon remand, the superior court appointed counsel for appellant and entered an order enabling appellant to be present at the hearing.
After hearing testimony from appellant, appellant’s previous court-appointed trial counsel, and the Youth and Adult Authority’s probation officer who authored the presentence report which had been ordered in regard to the sentencing of appellant, the trial court filed findings of fact as required by our mandate.
As to appellant’s assertions of threatened withdrawal from the case, as well as guarantee of probation by Robert Libbey, appellant’s court-appointed trial counsel, the superior court found that
Mr. Libbey did not threaten to withdraw from the case.
* * * He did not promise Thompson that he would obtain probation for him, although he did inform Thompson that he would do everything he could in that direction.
It has been pointed out that Thompson had previously been advised that his chances for probation were dim in view of his record. Thompson was perfectly capable of making his own decision, and' I find that he did.'
* * * Thompson was perfectly aware of how the matter stood and of his chances for probation at the time he entered his plea. He was not, coerced by his attorney nor was he confused. I find nothing improper in the conduct of Mr. Libbey, whom * * * I find to have been completely honest and candid with his client * * *.
Our review of the entire record of the hearing held on remand has led us to the conclusion that the superior court’s findings which pertain to Mr. Libbey’s purported withdrawal and his alleged guarantee of probation are amply supported by the record. We, therefore, affirm the superior court’s findings and conclusions to the effect that appellant’s change of plea to guilty was made voluntarily and with understanding of the nature of the charge.
We are of the opinion that the record discloses a sufficient factual basis for the trial court’s acceptance of appellant’s guilty plea.
We are also of the view that the record establishes that appellant was fully aware of the conse
quences of his guilty plea.
The fact that a plea of guilty was entered because of the possibility of obtaining a more lenient sentence does not make such a plea an involuntary one.
We note that appellant’s counsel
in this appeal has not briefed the question of the voluntariness of appellant’s plea of guilty.
Nevertheless, because this issue resulted in our original remand and was the focal
point of the hearing that was held upon remand, we considered it appropriate to discuss this question.
We find it unnecessary to decide all of the issues which appellant now seeks to raise. It is a well established rule that in the circumstance where a defendant, who is adequately represented by counsel, voluntarily and knowingly pleads guilty, this act constitutes a waiver of all non-jurisdictional defenses.
The only other question which we consider to be properly before us, in light of the foregoing rule and the record which was produced at the remand hearing, is appellant’s assertion that it was improper conduct on the part of the Youth and Adult Authority’s probation officer to question appellant with regard to the two charges against appellant which were dismissed when appellant changed his plea to the forgery count to that of guilty.
Criminal Rule 32(c) which pertains to presentence investigations and reports provides :
When Made.
The probation service of the court shall make a pre-sentence investigation and report to the court before the imposition of sentence or the granting of probation unless the court otherwise directs. The report shall not be submitted to the court or its contents disclosed to anyone unless the defendant has pleaded guilty or has been found guilty.
Report.
The report of the pre-sentence investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition, and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the court.
Here the record discloses that after appellant had changed his plea the trial court ordered a presentence investigation to be made and a presentence report to be filed. During the course of his investigation, a probation officer of the Youth and Adult Authority of the State of Alaska questioned appellant concerning his involvement in the two charges which had been dismissed. The presentence report which was filed contained reference to appellant’s admissions of guilt as to the two dismissed charges. Appellant contends that both the questioning referred to above and the inclusion of the responses elicited from appellant, concerning the dismissed charges, in the presen-tence report constituted error.
We hold that under the circumstances appearing in this record nothing which occurred during the presentence investigation, nor any portion of the text of the presentence report which was filed, requires the setting aside of appellant’s sentence. Here appellant’s trial counsel was
given the opportunity to read the pre-sentence report before appellant was sentenced.
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RABINOWITZ, Justice.
On the first occasion this matter was before us it was remanded to the trial court for the purpose of holding a hearing in conformity with Criminal Rule 35(b).
Originally appellant was tried upon a three-count indictment. After the state had presented its case in chief and appellant had testified, appellant withdrew his not-guilty plea to a forgery count and pled guilty thereto. At the time this matter was initially before us appellant had claimed
that he was coerced into withdrawing his plea of not guilty and entering a plea of guilty by his court appointed counsel, who threatened to withdraw if this was not done, at the same time assuring him that if he did so he (counsel) would guarantee that the probation officer would recommend probation.
In our opinion we concluded that these assertions raised an issue of fact which could not be “resolved in an appeal and which should have been determined in an acceptable manner by the trial court.”
Upon remand, the superior court appointed counsel for appellant and entered an order enabling appellant to be present at the hearing.
After hearing testimony from appellant, appellant’s previous court-appointed trial counsel, and the Youth and Adult Authority’s probation officer who authored the presentence report which had been ordered in regard to the sentencing of appellant, the trial court filed findings of fact as required by our mandate.
As to appellant’s assertions of threatened withdrawal from the case, as well as guarantee of probation by Robert Libbey, appellant’s court-appointed trial counsel, the superior court found that
Mr. Libbey did not threaten to withdraw from the case.
* * * He did not promise Thompson that he would obtain probation for him, although he did inform Thompson that he would do everything he could in that direction.
It has been pointed out that Thompson had previously been advised that his chances for probation were dim in view of his record. Thompson was perfectly capable of making his own decision, and' I find that he did.'
* * * Thompson was perfectly aware of how the matter stood and of his chances for probation at the time he entered his plea. He was not, coerced by his attorney nor was he confused. I find nothing improper in the conduct of Mr. Libbey, whom * * * I find to have been completely honest and candid with his client * * *.
Our review of the entire record of the hearing held on remand has led us to the conclusion that the superior court’s findings which pertain to Mr. Libbey’s purported withdrawal and his alleged guarantee of probation are amply supported by the record. We, therefore, affirm the superior court’s findings and conclusions to the effect that appellant’s change of plea to guilty was made voluntarily and with understanding of the nature of the charge.
We are of the opinion that the record discloses a sufficient factual basis for the trial court’s acceptance of appellant’s guilty plea.
We are also of the view that the record establishes that appellant was fully aware of the conse
quences of his guilty plea.
The fact that a plea of guilty was entered because of the possibility of obtaining a more lenient sentence does not make such a plea an involuntary one.
We note that appellant’s counsel
in this appeal has not briefed the question of the voluntariness of appellant’s plea of guilty.
Nevertheless, because this issue resulted in our original remand and was the focal
point of the hearing that was held upon remand, we considered it appropriate to discuss this question.
We find it unnecessary to decide all of the issues which appellant now seeks to raise. It is a well established rule that in the circumstance where a defendant, who is adequately represented by counsel, voluntarily and knowingly pleads guilty, this act constitutes a waiver of all non-jurisdictional defenses.
The only other question which we consider to be properly before us, in light of the foregoing rule and the record which was produced at the remand hearing, is appellant’s assertion that it was improper conduct on the part of the Youth and Adult Authority’s probation officer to question appellant with regard to the two charges against appellant which were dismissed when appellant changed his plea to the forgery count to that of guilty.
Criminal Rule 32(c) which pertains to presentence investigations and reports provides :
When Made.
The probation service of the court shall make a pre-sentence investigation and report to the court before the imposition of sentence or the granting of probation unless the court otherwise directs. The report shall not be submitted to the court or its contents disclosed to anyone unless the defendant has pleaded guilty or has been found guilty.
Report.
The report of the pre-sentence investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition, and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the court.
Here the record discloses that after appellant had changed his plea the trial court ordered a presentence investigation to be made and a presentence report to be filed. During the course of his investigation, a probation officer of the Youth and Adult Authority of the State of Alaska questioned appellant concerning his involvement in the two charges which had been dismissed. The presentence report which was filed contained reference to appellant’s admissions of guilt as to the two dismissed charges. Appellant contends that both the questioning referred to above and the inclusion of the responses elicited from appellant, concerning the dismissed charges, in the presen-tence report constituted error.
We hold that under the circumstances appearing in this record nothing which occurred during the presentence investigation, nor any portion of the text of the presentence report which was filed, requires the setting aside of appellant’s sentence. Here appellant’s trial counsel was
given the opportunity to read the pre-sentence report before appellant was sentenced. No objection was raised to the factual content thereof. We believe that appellant’s attack on the presentence investigation and report are disposed of by the rationale of the following cases which we find persuasive.
In Williams v. People of State of New York
the defendant was convicted of first degree murder and the jury recommended a life sentence. In imposing the death penalty the trial judge stated that a presentence investigation had revealed factors which persuaded him that the death penalty was called for. Among these factors referred to was the appellant’s experience in approximately thirty other burglaries. The appellant had not been convicted of these burglaries, but the judge had information that he had confessed to some and had been identified as the perpetrator of others.
The attack on the sentence was based on a denial of due process in that the appellant had not been afforded an opportunity to confront those that had accused him of these other burglaries. In affirming, the Supreme Court of the United States said:
A sentencing judge, however, is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant — if not essential — to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial.
United States v. Doyle
presented a factual situation closely related to the circumstances of the case at bar. There the defendant was indicted on eleven counts of violation of the Securities Act. After a plea of guilty to a single count, the remaining counts were dismissed. The pre-sentence report which was submitted indicated that the defendant was guilty of the charges which had been dismissed. In upholding defendant’s conviction the court wrote:
The dismissal of the other counts at the Government’s request was not an adjudication against it on the merits, even though, as a result of the statute of limitations, no further prosecution can occur for the offenses there charged. The aim of the sentencing court is to acquire a thorough acquaintance with the character and history of the man before it. Its synopsis should include the unfavorable, as well as the favorable, data, and few things could be so relevant as other criminal activity of the defendant, particularly activity closely related to the crime at hand. Counsel suggests that although a ‘criminal record’ may be considered, crimes not passed on by a court are beyond the pale, but we see nothing to warrant this distinction. * * *
Of necessity, much of the information garnered by the probation officer will be hearsay and will doubtless be discounted accordingly, but the very object of the process is scope and the defendant is always guarded by the statutory maximum. To argue that the presumption of innocence is affronted by considering unproved criminal activity is as implausible as taking the double jeopardy clause to bar reference to past convictions.
In light of the foregoing, we affirm the superior court’s denial of appellant’s Criminal Rule 35(b) motion to vacate the judgment and commitment entered in this case.
