Summary
In State v. Evans, 194 Neb. 559, 234 N.W.2d 199 (1975), the Supreme Court of Nebraska adopted a standard governing withdrawals of guilty pleas that had the effect of harmonizing what may have been divergent Nebraska cases in this area.
Summary of this case from Holtan v. ParrattOpinion
No. 39971.
Filed October 23, 1975.
1. Criminal Law: Judges: Plea Bargains: Guilty Plea. A trial judge should not enter into any agreement that the defendant will be permitted to withdraw his plea if the judge does not accept the county attorney's recommendation on sentence. 2. ___: ___: ___: ___. It is not proper for a trial judge to permit the withdrawal of a plea of guilty or nolo contendere unless such withdrawal is necessary to correct a manifest injustice. 3. Criminal Law: Judges: Plea Bargains: Guilty Plea: Sentencing. In the area of sentencing the defendant should be fully informed that the trial judge will not be bound by any agreement. He should understand the recommendation is no more than a recommendation to be considered under the principles set out in section 1.8 of the ABA Standards Relating to Pleas of Guilty.
Appeal from the District Court for Douglas County: JOHN E. CLARK, Judge. Affirmed.
Paul E. Watts, J. Joseph McQuillan, Gerald E. Moran, and Robert C. Sigler, for appellant.
Paul L. Douglas, Attorney General, and Melvin K. Kammerlohr, for appellee.
Heard before WHITE, C. J., SPENCER, BOSLAUGH, McCOWN, NEWTON, and CLINTON, JJ., and KUNS, Retired District Judge.
This is an appeal from a burglary conviction on a nolo contendere plea entered pursuant to a plea bargain. The county attorney agreed to recommend a 6-month county jail sentence. Appellant-defendant received a 2 to 4 year term in the Nebraska Penal and Correctional Complex. His motion to withdraw his plea was overruled. Defendant alleges the court, in overruling his motion to withdraw his plea, abused its discretion, violated his right to the equal protection of the laws, and denied the due process of law guaranteed by the United States Constitution. We affirm.
When defendant entered his plea the trial court inquired whether there had been any plea bargaining. Counsel for defendant informed the court there had, and explained the agreement to the court. He then requested that the plea be entered with leave to withdraw it if the court chose not to honor the county attorney's recommendation of a county jail sentence. The court advised defendant and his counsel it would not be bound by any recommendations. It further advised defendant any plea made would be binding and if that was not the understanding of defendant and his counsel there should be no further proceedings on the plea. Defendant was then asked by his counsel if this was agreeable to him and he replied in the affirmative. The court then stated: "The only position I am taking, Mr. Evans, is that, as the Court, I am not going to be bound by such a recommendation. You are either guilty of a charge, or you are not. I am not saying it won't be considered, because it will. Certainly the recommendation of the County Attorney will be considered, as will the presentence investigation and anything else that is brought to the Court, either by your lawyer, or you. Is that your understanding, Mr. Evans?" Defendant answered affirmatively.
At the sentencing the judge reviewed the defendant's presentence investigation with him. He asked the defendant if it was about right, and the defendant replied in the affirmative. The judge then stated the probation officer had recommended incarceration. He advised defendant he had taken note of the county attorney's recommendation but chose not to follow it. Defendant, who had a previous felony record, was then sentenced to 2 to 4 years in the Nebraska Penal and Correctional Complex.
Defendant, in his motion to withdraw his guilty plea, alleged he would not have pled guilty except for the plea bargain and that he entered his plea in reliance upon the plea bargain being honored. He further alleged that if it had not been for his prior felony conviction and a juvenile record, he would have sought a different plea bargain rather than one which involved county jail time.
This is not a situation where a plea bargain has been violated. The county attorney made the recommendation called for by the agreement. The judge declined to accept the recommendation. At the time of the plea defendant's counsel asked the trial court if the defendant would be permitted to withdraw his plea if the court chose not to honor the county attorney's recommendation. The court advised the parties such procedure was not acceptable to him and that any plea entered would be binding on the defendant. After being so advised, the defendant still chose to enter his plea. This was the proper procedure. A trial judge should not enter into any agreement that the defendant will be permitted to withdraw his plea if he does not accept the county attorney's recommendation on sentence.
As defendant's counsel suggests, in State v. Turner (1971), 186 Neb. 424, 183 N.W.2d 763, we enunciated the following rule concerning pleas of guilty: "* * * the Standards Relating to Pleas of Guilty promulgated by the American Bar Association outline what should be the minimum procedure in the taking of such pleas." We have consistently adhered to this position and have set aside pleas where the ABA Standards were not followed.
The ABA Standards Relating to Pleas of Guilty cover the withdrawal of pleas. Section 2.1 of the Pleas of Guilty is as follows:
"2.1 Plea withdrawal.
"(a) The court should allow the defendant to withdraw his plea of guilty or nolo contendere whenever the defendant, upon a timely motion for withdrawal, proves that withdrawal is necessary to correct a manifest injustice.
"(i) A motion for withdrawal is timely if made with due diligence, considering the nature of the allegations therein, and is not necessarily barred because made subsequent to judgment or sentence.
"(ii) Withdrawal is necessary to correct a manifest injustice whenever the defendant proves that:
"(1) he was denied the effective assistance of counsel guaranteed to him by constitution, statute, or rule;
"(2) the plea was not entered or ratified by the defendant or a person authorized to so act in his behalf;
"(3) the plea was involuntary, or was entered without knowledge of the charge or that the sentence actually imposed could be imposed; or
"(4) he did not receive the charge or sentence concessions contemplated by the plea agreement and the prosecuting attorney failed to seek or not to oppose these concessions as promised in the plea agreement.
"(iii) The defendant may move for withdrawal of his plea without alleging that he is innocent of the charge to which the plea has been entered.
"(b) In the absence of a showing that withdrawal is necessary to correct a manifest injustice, a defendant may not withdraw his plea of guilty or nolo contendere as a matter of right once the plea has been accepted by the court. Before sentence, the court in its discretion may allow the defendant to withdraw his plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant's plea."
It is evident that the defendant did not bring himself within the manifest injustice standard. The only reason we can deduce from his motion is that he expected the recommendation of the county attorney would be honored. He was specifically advised by the trial court that it would not be bound by the recommendation and that if he did plead guilty he would not be permitted to withdraw the plea.
The procedure followed herein comported fully with our interpretation of the ABA Standards Relating to Pleas of Guilty. Section 3.3 of the standards sets out the responsibilities of the trial judge. That section is as follows:
"3.3 Responsibilities of the trial judge.
"(a) The trial judge should not participate in plea discussions.
"(b) If a tentative plea agreement has been reached which contemplates entry of a plea of guilty or nolo contendere in the expectation that other charges before that court will be dismissed or that sentence concessions will be granted, upon request of the parties the trial judge may permit the disclosure to him of the tentative agreement and the reasons therefor in advance of the time for tender of the plea. He may then indicate to the prosecuting attorney and defense counsel whether he will concur in the proposed disposition if the information in the presentence report is consistent with the representations made to him. If the trial judge concurs but the final disposition does not include the charge or sentence concessions contemplated in the plea agreement, he shall state for the record what information in the presentence report contributed to his decision not to grant these concessions.
"(c) When a plea of guilty or nolo contendere is tendered or received as a result of a prior plea agreement, the trial judge should give the agreement due consideration, but notwithstanding its existence he should reach an independent decision on whether to grant charge or sentence concessions under the principles set forth in section 1.8."
It is not proper for a trial judge to permit the withdrawal of a plea of guilty or nolo contendere unless such withdrawal is necessary to correct a manifest injustice. Definitely, it should never be done merely because the defendant would not have entered into a plea bargain if he had known the trial judge would not accept the sentence recommendation. To so hold is a violation of section 3.3(c). Its effect would be to permit the defendant to bargain with the court on his sentence and make a mockery of the judicial function and the discretion which must be exercised by a trial judge.
In his brief defendant argues: "* * * the present state of affairs in the plea bargaining process in Nebraska, as clearly manifested by the instant case, is that the prosecutor can make a promise to the defendant, and then keep that promise 'so that it can be said to be part of the inducement or consideration' for the defendant's plea. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499 (1971). But with the bargain completed on both sides the defendant who enters his plea in part because of the prosecutor's promise or 'inducement' can have his expectations shattered by the trial court without being afforded a chance to withdraw his plea of the bargained-for performance."
In the area of sentencing the defendant should be fully informed that the trial judge will not be bound by any agreement. He should understand the recommendation is no more than a recommendation to be considered under the principles set out in section 1.8 of the ABA Standards Relating to Pleas of Guilty.
It is true, as defendant argues, section 4.1(c) of the ABA Standards Relating to the Function of the Trial Judge would permit the procedure contended for by him. We have not adopted the Standards Relating to the Function of the Trial Judge. We specifically disapprove of section 4.1(c) of those standards insofar as it would permit the withdrawal of a guilty plea unless, as set out heretofore, withdrawal is necessary to correct a manifest injustice.
The judgment is affirmed.
AFFIRMED.