Opinion
Nos. 42468, 42469, 42470.
Filed January 3, 1980.
1. Trial: Plea Bargains: The trial judge should not participate in plea discussions. 2. ___: ___. Intentionally or otherwise, and no matter how well motivated the judge may be, the accused is subjected to a subtle but powerful influence when the judge becomes a participant in plea bargaining.
Appeal from the District Court for Douglas County: SAMUEL P. CANIGLIA, Judge. Reversed and remanded.
Thomas M. Kenney, Douglas County Public Defender, and Bennett G. Hornstein, for appellant.
Paul L. Douglas, Attorney General, and Linda A. Akers, for appellee.
Heard before KRIVOSHA, C. J., BOSLAUGH, McCOWN, CLINTON, BRODKEY, WHITE, and HASTINGS, JJ.
The defendant, Joseph C. Svoboda (hereinafter referred to as Svoboda), has appealed to this court from a denial of his motion for post conviction relief in each of three original criminal proceedings. The motions were considered together below and have also been consolidated for briefing and argument in this appeal. We reverse and remand for a new trial.
This is the third appearance of Svoboda before this court on these charges, and therefore a lengthy reiteration of the facts giving rise to these actions is unnecessary. It is sufficient merely to give a brief summary of the events culminating in this appeal. Svoboda was originally charged with three counts of burglary, two of which were supplemented with habitual criminal charges; and in addition he was charged with one count of failure to appear after release on bond. He originally pled not guilty on each of the burglary counts. At the beginning of the second day of trial, Svoboda made a motion in open court to disqualify his attorney. An "in chambers" hearing was held following which the court denied Svoboda's motion. Immediately following the discussion, the trial court suggested that Svoboda reconsider the plea bargain offered him by the State. After consultation with his attorney, Svoboda accepted the plea bargain, and entered a plea of nolo contendere to two counts of burglary and one count of failure to appear. The jury was then dismissed, and the court sentenced Svoboda on the three counts. Following sentencing, Svoboda appealed the convictions to this court. We dismissed his appeal on procedural grounds. State v. Svoboda, 194 Neb. 663, 234 N.W.2d 901 (1975). Svoboda then filed motions for post conviction relief, contending that his pleas were involuntary because of alleged participation by the trial court in the plea bargain, and also alleged a conspiracy between the prosecution and Svoboda's counsel. These motions were summarily denied by the trial court on the ground that the issues raised there had been raised in the direct appeal of the convictions. On appeal of the denial of these motions for post conviction relief to this court, we reversed the order and remanded the cases for an evidentiary hearing on the issues raised by Svoboda, noting that our original decision was based on the procedures used, not on the merits of his case. State v. Svoboda, 199 Neb. 452, 259 N.W.2d 609 (1977). An evidentiary hearing was thereafter held, and Svoboda was again denied relief. The present appeal followed.
Svoboda first contends that the alleged participation by the trial judge in the plea bargain discussions amounted to such coercion as to make his pleas involuntary. Since the issuance of the opinion in 1971, this court has consistently followed State v. Turner, 186 Neb. 424, 183 N.W.2d 763 (1971), in which we adopted the American Bar Association Standards Relating to Pleas of Guilty as minimum standards with reference to accepting pleas. Section 3.3(a) of those standards provides: "The trial judge should not participate in plea discussions." This provision has been variously interpreted, and we note that the extent of judicial participation which has been permitted in other jurisdictions varies greatly. See, Brown v. Peyton, 435 F.2d 1352 (4th Cir., 1970), cert. den., 406 U.S. 931; People v. Davis, 387 N.Y.S.2d 909 (App. Div., 1976); Scott v. United States, 419 F.2d 264 (D.C. Cir., 1969); Commonwealth v. Sanutti, 454 Pa. 344, 312 A.2d 42 (1973); Address by Judge Hoffman, Ninth Circuit Judicial Conference, 53 F. R. D. 499 (June 30, 1971); Bond, Plea Bargaining and Guilty Pleas, 6.01 to 6.19, pp. 272 to 303.
However, we believe the participation by the trial court in these actions was such as to make Svoboda's pleas involuntary under any interpretation of the authorities. Svoboda made a motion to dismiss his counsel at the start of the second day of the trial. The discourse between the trial judge and Svoboda at that time was as follows:
"MR. SWOBODA: I don't feel he [my attorney] is prepared. As a matter of fact, he hasn't prepared my case, my defense. Everything has been, `Plea, better plead, better plead, otherwise they are going to hang you. Plead.' He never did come up to interview me, never. When he came up it was always to try to persuade me to make a plea.
"BY THE COURT: Well, I'm sure [your attorney] worked very diligently in trying to effect a plea bargain, Mr. Swoboda. I know this probably for a fact, from the conferences that I have had with the County Attorney and [your attorney]. But I will tell you this, you were at one time charged with five felonies. You are still charged with four felonies. [Your attorney] told me earlier that you were willing, and you can deny this now if you want, but he told me that you were willing to plead to two burglaries and the escape charge if the State would dismiss the other charges and drop the habitual criminal charge. Now, you are perfectly entitled, if you want to deny it, fine, it isn't all that important, and even if it's true you are entitled to change your mind and have a trial. I think [your attorney] was working in your best interest and I will tell you another reason why, Mr. Swoboda, I have heard the evidence so far, and the State's evidence is overwhelming toward your guilt. In my experience in trying criminal cases I have never heard evidence so overwhelming. Now, I don't know what you plan to present as far as a defense, but I'll tell you this much, in consideration of what [your attorney] has done and what you claim he has done, I am convinced he was working toward your best interest and detrimentally to your best interest.
"You do whatever you want. You have a Constitutional right to a trial and to have the State prove the guilt beyond a reasonable doubt.
"Mr. SWOBODA: I told him I didn't want what he entered in the record yesterday and I didn't want that in.
"BY THE COURT: All he wanted to do was protect himself, because when he has recommended that you accept a plea bargain offer by the County Attorney and you don't do it, he simply wanted a record so that later on if you complained that he didn't do anything for you, and he wants to show now that he did. And you don't have to accept any plea bargain. You are entitled to your Constitutional rights to a trial by jury, and that's what we are having.
"I will never punish a defendant for exercising that Constitutional right, and I do not play any part in a plea bargain, but from what I can see, Mr. Swoboda, [your attorney] was acting in your best interest and not in any conflict of interest in working with the County Attorney and in recommending the offer that the County Attorney has made, as far as a plea bargain is concerned. Because I will repeat it again, I have never seen a case in which the evidence is so overwhelming. Now, maybe you are going to come in with a defense that would balance that out. I don't know, but as of this point, in the State's case, I have never seen a more overwhelming case of evidence toward the guilt of the defendant.
* * *
"BY THE COURT: Well, now you [Svoboda] have heard it [the plea bargain]. Are you still willing to plea bargain on that basis, Mr. Pane? You may be thinking it's difficult to believe that he could not understand that, but on the other hand, it's so incredible, frankly, to the Court, that he would insist on having a trial with the evidence as I have seen it, that maybe he did misunderstand it. This is an unusual situation that we are discussing right now. Ordinarily the Court plays no part in a plea bargain, but you come up after a day of trial and claim your attorney — you don't want him to represent you, and you have told me nothing except facts which your attorney is acting in your best interest. Now, do you understand what the plea bargain was?
* * *
"BY THE COURT: Mr. Swoboda, I'm not going to discharge your attorney at this point, I think he has acted in your best interest, both in his negotiations before trial and in his handling of the trial. I think he has done a remarkable job in his cross-examination of the State's witnesses for what little he had to even discuss on cross-examination, in trying to create reasonable doubt. There may be some question about this business of the car that you bring up, I don't know whether the County Attorney is intending to tie it up later or not. Do you, Mr. Pane?
"MR. PANE: I could.
"BY THE COURT: It might be a matter of irrelevant evidence that they find a car with an Iowa license plate and tow it in at this point.
"MR. PANE: I can tie it up.
"BY THE COURT: It might also be irrelevant about the testimony by Mr. Leehy about items taken from his place prior to seven o'clock, and in fact I intended to strike that from the record and admonish the jury to disregard it. I can assure you even if those two items stayed in the evidence, unless the evidence gets better, as far as the defendant's guilty [sic] or innocence is concerned the Supreme Court would undoubtedly say that if there was any error it was harmless in the face of the overwhelming evidence of guilt.
"I'm not going to discharge [your attorney], and as long as we are in recess now, I suppose the next matter you might want to consider is, if the State is still willing to offer this as a plea bargain, and if you do understand it now, if you are interested in accepting it. Do you want to talk to [your attorney] or consider it on your own for a bit now, in private?
"MR. SWOBODA: (Nods head affirmatively.)" (Emphasis supplied.) (Although in the pleadings and brief filed by counsel defendant's name was spelled "Svoboda," we note that frequently in the record it was spelled "Swoboda.")
We believe a fair reading of the foregoing indicates that the trial court imparted to Svoboda the impression that the court viewed Svoboda's guilt as proven at this stage of the trial. Under similar circumstances it was stated in People v. Davis, 387 N.Y.S.2d 909 (App. Div., 1976): "The court in a criminal case may properly review the factors which a defendant might find relevant in making a determination as to whether he wishes to change his plea to guilty. The bounds of propriety are overstepped, however, when the court ceases to function in an impartial manner and becomes, instead, an advocate in persuading a defendant to plead guilty. In the case at bar, the whole tone and content of the court's remarks to defendant were calculated to impress him with the hopelessness of this situation and with the severe penalties which would be attendant upon his conviction after a trial."
We likewise think it is clear that the trial court's remarks to Svoboda, whether so intended or not, must have and did impress upon Svoboda the hopelessness of his situation, and brought about the nolo contendere pleas to the three counts. At the evidentiary hearing, Svoboda stated: "The Judge — the Judge came in and become involved in the plea bargaining discussions. He initiated — I raised my hand for the intentions of disqualifying my attorney, and he told me that he would not disqualify him, and he initiated plea bargain discussions and directed them all the way through. I felt the pressure along with the County Attorney and my own lawyer, manipulating me around until I felt that if I did go to trial I wouldn't stand any kind of a chance. I would be facing longer sentences, and that's why I became disgusted and just pled guilty."
In so doing, we believe the trial court, perhaps unwittingly, became an advocate instead of an impartial referee. There is little question that the power and prestige of the trial court undoubtedly had an effect on Svoboda. We fully agree with the statement of the court contained in United States v. Gilligan, 256 F. Supp. 244 (S. D. N. Y., 1966), which case was decided even before the adoption of the American Bar Association standards forbidding participation by the trial judge in plea bargaining in criminal cases. In that case the court said: "The unequal positions of the judge and the accused, one with the power to commit to prison and the other deeply concerned to avoid prison, at once raise a question of fundamental fairness. When a judge becomes a participant in plea bargaining he brings to bear the full force and majesty of his office. His awesome power to impose a substantially longer or even maximum sentence in excess of that proposed is present whether referred to or not. A defendant needs no reminder that if he rejects the proposal, stands upon his right to trial and is convicted, he faces a significantly longer sentence. One facing a prison term, whether of longer or shorter duration, is easily influenced to accept what appears the more preferable choice. Intentionally or otherwise, and no matter how well motivated the judge may be, the accused is subjected to a subtle but powerful influence. * * *
"A judge's prime responsibility is to maintain the integrity of the judicial system; to see that due process of law, equal protection of the laws and the basic safeguards of a fair trial are upheld. * * *
"It may well be, as has been suggested, that voluntary, as distinguished from coercive, bargaining between the prosecutor and the defendant has been sanctioned by propriety and practice — in some measure they deal at arm's length. But this is quite different from approbation of plea bargaining between the judge and the accused, where the disparity of positions is extremely marked. As has been urged: `Our concept of due process must draw a distinct line between, on the one hand, advice from and "bargaining" between defense and prosecuting attorneys and, on the other hand, discussions by judges who are ultimately to determine the length of sentence to be imposed.'"
We do not say that every time a trial judge enters a plea bargain discussion, he is overstepping the bounds of his office and coercing a defendant. However, where, as here, the actions of the court evoked an immediate response from a previously intransigent defendant, we are forced to conclude that the plea was involuntary.
We therefore find that under the facts of this case, Svoboda's pleas were not voluntary, and in view of our decision on this issue, we need not examine Svoboda's other assignments of error. The orders of the lower court are reversed, and the actions appealed from are remanded for a new trial.
REVERSED AND REMANDED.