Summary
In Maes v. People, supra, a motion was made to withdraw a plea of nolo contendere and enter pleas of not guilty and not guilty by reason of insanity.
Summary of this case from Lemme v. LangloisOpinion
No. 21379.
Decided November 2, 1964. Rehearing denied November 23, 1964.
From a denial of his motion for change of plea, defendant filed a motion seeking the following orders from Supreme Court; allowing him to proceed in forma pauperis on writ of error directed to an adverse judgment and sentence; to appoint counsel; and to provide him with a transcript. Rule to show cause issued to trial judge.
Rule Discharged.
1. CRIMINAL LAW — Motion to Change Plea — Matter of Right — Discretion of Court. One accused of crime may not, as matter of right, have his plea of guilty withdrawn or changed; application for withdrawal or change of such plea is addressed to the discretion of the trial court, and only when it is made to appear that that discretion has been abused will the reviewing court act.
2. Change of Plea — Exercise of Discretion — Favorable to Defendant — Justifiable Basis. To warrant to exercise of discretion favorable to defendant concerning a change of plea, there must be some showing that justice will be subverted by a denial thereof, as where defendant may have been surprised or influenced into a plea of guilty when he had a defense; where a plea of guilty was entered by mistake or under a misconception of the nature of the charge; where such plea was entered through fear, fraud, or official misrepresentation; or where it was made involuntarily for some reason.
3. Change of plea — Exercise of Discretion — Favorable to Defendant — Showing — Trial Court — Function of Reviewing Court. Whether a showing was made by defendant concerning his request for a change of plea that justice will be subverted by a denial thereof is a matter for the trial court to decide; its decision is normally binding on reviewing court when it appears that it has been made in the exercise of a judicial discretion; reviewing court's function is to scrutinize the discretion exercised and intervene only where an abuse of discretion is noted.
4. Change of Plea — Probation Report — Propriety. On motion by defendant for a change of plea, there was no impropriety in the consideration by the trial court of the report of the probation officer which contained a number of admissions the effect of which the defendant in no manner and to no degree diminished.
5. Change of Plea — Denial — Psychiatric Examination — Probation Report. Trial court acted properly in denying defendant's motion for a change of plea; it would have been a court of credulity had it sanctioned reinstatement of the plea of not guilty and permitted the filing of the insanity plea, after it had accepted a plea impliedly admitting guilt, had before it the result of the psychiatric examination, and further had availed itself of the material in the probation report containing damning data of defendant's guilt.
Error to the District Court of the City and County of Denver, Hon. Edward J. Keating, Judge.
Mr. NATHAN DAVIDOVICH, for plaintiff in error.
Mr. WALTER F. SCHERER, for Hon. Edward J. Keating.
Maes filed a motion before us asking; in substance, that we enter orders in three respects: (1) that we allow him to proceed in forma pauperis on writ of error directed to an adverse judgment and sentence; (2) that we direct the trial court to continue at state expense its appointment of counsel for him in the present proceedings; and (3) that we order the trial court to have prepared for filing and use in this Court, without cost to Maes, the transcript of proceedings has before it. A rule to slow cause was issued to the trial judge.
Maes had been accused of the crime of non-support. To this charge he pled not guilty. Later, he was permitted to change his plea to that of nolo contendere. Before the latter plea was accepted, however, the trial court advised him of his right to a trial by jury, and of his right to have counsel (court-appointed in the event he was unable to employ one), and warned him of the consequences should the plea of nolo contendere be received. Notwithstanding such advice and warning, Maes persisted in his plea of nolo contendere. The plea was then accepted and entered.
At once Maes asked leave to apply for probation. Leave was granted. At the same time, Maes advised the trial court that the probation report could be considered as evidence in the disposition of his case. Hearing on the application was thereupon set for September 12, 1963, five weeks after the entry of the plea and the application for probation.
While his application for probation was pending, Maes disappeared, became a fugitive, and his bond was forfeited. He was later apprehended and returned to the jurisdiction of the trial court. On April 13, 1964, pursuant to Maes' request, present counsel was appointed to represent him in any further proceeding.
On its own motion, the trial court on May 26, 1964, appointed a psychiatrist to examine Maes. Maes was thereafter examined. The following conclusions of the psychiatrist appear in his letter, dated, June 4, 1964, directed to the trial court:
"It is my opinion that his defendant has a character disorder and that he is an individual who is not willing to profit from experience. This is a common personality defect with which people are born and which leads to chronic antisocial behavior and which is not amenable to treatment in more than ninety per cent of the cases. Unfortunately these individuals by nature are completely selfish and interested only their immediate self-gratification at whatever risk or cost. They also have the ability to plead their case well in order to avoid trouble and relapse into the same pattern for wrong doing nor do they appreciate punishment and its consequences. These individuals are the trouble-makers of society: sometimes called 'the disturbers of the peace.'
"In my opinion he was legally sane on each of the occasions that I examined him and was legally sane on the occasion which caused his arrest."
On June 12, 1964, Maes sought leave to withdraw his plea of nolo contendere and to enter pleas of not guilty and not guilty by reason of insanity at the time of the commission of the offense. A hearing was held on the matter on the same day and at its conclusion, the trial court denied the motion. Imposition of sentence to the penitentiary for not less than eighteen months and not more than five years followed.
In its return to our order to show cause, the trial stated:
"In denying [Maes'] motion for change of plea, this court exercised its judgment on the merits of the motion and, under all of the facts and circumstances, submits that said judgments was neither arbitrary nor capricious. This court took into consideration, inter alia [Maes'] previous history as disclosed by his admissions to the probation department, wherein he, in effect, admitted that he had failed to support his child, a copy of which report is attached hereto. Further this curt has never been advised by [Maes] or his counsel that he has a meritorious defense to the charge against him.
"This court was and is of the opinion that [Maes] entered his original plea knowingly and with a full understanding of the nature of the charge and that it was entered without fear, fraud or misrepresentation. Inasmuch as [Maes] has never factually suggested his innocence of the charge against him, this court felt substantive justice, nor [his] rights would he prejudiced by a denial of the motion."
It is unnecessary to set forth the material contained in the report of the probation officer. In the consideration of its contents in connection with other matters, we find much to sustain the action of the trial court in its denial of the application for the leave to withdraw the plea of guilty and we find little to persuade us to hold that a contrary result should have eventuated.
We are disinclined to upset the ruling of the trial court made after a hearing in which it had certain advantages not available to us. Thus, from the inception of the case, it had opportunities to observe and evaluate Maes. In this respect the trial court had before it circumstances which moved it permit a change of plea from that of not guilty to nolo contendere. And finally, it had before it the totality of circumstances, including the probation report which prompted a denial of the request for withdrawal of the nolo contendere plea and the entry of the pleas of not guilty and not guilty by reason of insanity.
One accused of crime may not, as a matter of right, have his plea of guilty withdrawn or changed. An application for the withdrawal or change of such plea is addressed to the discretion of the trial court, and only when it is made to appear that that discretion has been abused will we act Abshier v. People, 87 Colo. 507, 289 Pac. 1081; Champion v. People, 124 Colo. 253, 236 P.2d 127.
The law pertaining to applications to withdraw a plea is well set forth by the Supreme Court of New Jersey in the case of State v. Daniels, 38 N.J. 242, 249, 183 A.2d 648, 652:
"Applications to withdraw a plea are by their very nature within that class of matters addressed to the exercise of the court's discretion. * * * By this is meant discretion founded on the facts and the applicable law and not simply an undisciplined whim. The concept has particular meaning in connection with the scope of review on appeal, for it is axiomatic that the trial court's conclusion in such situations will not upset unless there has been a so-called 'abuse' of discretion."
To warrant the exercise of discretion favorable to defendant concerning a change of plea there must be some showing that justice will be subverted by a denial thereof as where a defendant may have been surprised or influenced into a plea of guilty when he had a defense: where a plea guilty was entered by mistake or under a misconception of the nature of the charge; where such plea was entered through fear, fraud or official misrepresentation; or where it was made involuntarily for some reason. Champion v. People, supra.
Whether such showing was made is a matter for the trial court to decide. Its decision is normally binding on us when it appears that it has been made in the exercise of a judicial discretion. Our sole function then is to scrutinize the discretion exercised. we intervene only where we note an abuse of discretion.
There was no impropriety in the consideration by the trial court of the report of the probation officer. It contained a number of admissions the effect of which Maes in no manner and to no degree diminished. The trial court would have been a court of credulity had it sanctioned reinstatement of the plea of not guilty and permitted the filing of the insanity plea, after it had accepted a plea impliedly admitting guilt, had before it the result of the psychiatric examination, and further had availed itself of the material in the probation report containing damning data Maes' guilt. See Abshier v. People, supra.
In applying the law thus cited, we hold that the trial; court acted property in the premises and hence Maes' motion, seeking orders from us directing the trial court to appoint counsel and to provide him with a transcript, should be, and is hereby denied.
The rule is discharged.
MR. JUSTICE SUTTON, MR. JUSTICE DAY and MR. JUSTICE PRINGLE dissent.