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State v. Abodeely

Supreme Court of Iowa

September 2, 1970

STATE of Iowa, Appellee,
v.
Joseph George ABODEELY, Appellant.

Page 348

[Copyrighted Material Omitted]

Page 349

Arthur N. Nasser and Raymond J. Smith, Chicago, and R. Fred Dumbaugh, Cedar Rapids, for appellant.

Richard C. Turner, Atty. Gen., Michael J. Laughlin, Asst. Atty. Gen., and William G. Faches, County Atty., for appellee.

BECKER, Justice.

Defendant was charged by county attorney's information with aiding and abetting a confederate in an attempt to commit abortion. He pled guilty, was sentenced to an indeterminate sentence not to exceed five years in the Iowa State Penitentiary at Fort Madison, fined $100. and costs. Subsequently he filed motion in arrest of judgment and to vacate sentence. The motion was overruled. Plaintiff appeals. We affirm.

Defendant is accused of having confederated with Merle Jess Meyers and Donald Ray Geater in attempting to produce a miscarriage by Gloria Jean Judd. The record in this case indicates the attempt to produce an abortion by Miss Judd was one of a series of such acts all performed by the same men. The actual work on the women was

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done by Meyers with the assistance of Geater. The State charged defendant as an aider and abettor. The evidence indicates defendant acted as a referral source or procurer. The minutes of evidence indicate the State was prepared to prove defendant referred at least three women, other than Miss Judd, to Meyers and Geater.

During the course of the hearings, defendant admitted referring seven women over a three year period to Mayers and Geater. Defendant claims he received no financial gain. Evidence produced by the State at the hearing preparatory to sentencing indicates defendant did realize a financial gain and that he referred far more than the seven women he noted in his own testimony. One of the women, Mrs. Wright, died immediately after having been treated by these men.

The ensuing investigation culminated in charges against Meyers, Geater and defendant in connection with attempts to produce abortions by several women. Meyers was tried and convicted on a charge involving Miss Judd. He peld guilty to a second prosecution. Geater pled guilty to the Judd case and turned State's evidence. Thereafter, on October 24, 1968 defendant was charged in the instant case and in two other similar cases. On October 28, 1968 he personally appeared in court with his two attorneys, Ted V. Ruffin and R. Fred Dumbaugh.

Motion for change of venue, motion for bill of particulars and various other motions were filed. The change of venue was denied. The bill of particulars was granted as to most requests. For some seven months pending rulings on these various motions defendant was out on bond and in frequent communication with his attorneys.

The trial court's findings of fact on all of these matters are fully supported by the record. Our independent examination of the record convinces us defendant frequently discussed the advisability of pleading not guilty and going to trial before a jury, the witnesses to be used against him, the fact they would be subject to cross-examination, the fact it would be best for him not to testify because, in the words of his lawyer, 'he would have to admit under oath the very things that are the essence of the case. * * *.' Defendant claimed he was innocent because he did not directly participate in the attempt to commit abortion and because he claimed he received no remuneration.

The defense attorneys told defendant they thought the court erred in not granting the change of venue, the action would probably be upheld by the Iowa Supreme Court, but might be cause for reversal before the United States Supreme Court. They told him he had a good chance to get probation but indicated the prosecutor would not so recommend. Mr. Ruffin told defendant that if the case went to jury trial he would withdraw because they would be just going through the forms but Mr. Dumbaugh, who is still an attorney of record, gave no such indication.

The case was set for trial on June 16, 1969. On June 12, 1969 defendant appeared in court with his attorneys, indicated he wanted to plead guilty and did so plead. Before accepting the plea, the court made extensive inquiry of defendant who said this was his own voluntary decision, there had been no threats or promises, he knew the punishment provided was a term not exceeding five years and a fine not exceeding $1000, he knew he might or might not get probation, he had discussed the matter with his attorneys and was satisfied with them.

At this point a matter came up that requires quotation from the record. [1]

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At the subsequent presentence hearing on July 7, 1969 defendant reaffirmed his plea upon inquiry by the court. Defendant and nine other witnesses testified at the presentence hearing. The testimony of defendant and Geater, who appeared as a State's witness, was in serious conflict. The court suggested and defendant agreed to a polygraph test for both men by an operator agreed upon by the parties. The hearing recessed until July 24, 1969 while the test was conducted. Defense counsel chose the examiner. The hearing was resumed and at the conclusion thereof the court sentenced defendant. A parole was not granted. Subsequently, defendant obtained new counsel. Motion in arrest and to vacate was filed and overruled. This appeal followed.

THE GUILTY PLEA

I. Defendant attacks the proceeding surrounding the plea of guilty on three grounds: (1) the court failed to inform defendant of his constitutional rights; (2) the court did not inform defendant of the possible scope of punishment; and (3) the plea was involuntary and coerced.

The manner of factual determination of validity of the plea of guilty is primarily controlled here by the impact of three cases, McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418; Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; and State v. Sisco (Iowa 1969) 169 N.W.2d 542.

The McCarthy case held rule 11 of the Federal Rules of Criminal Procedure must be followed. The judge must personally make inquiry into the nature of defendant's understanding of the charge, the consequences of his plea and whether there is a factual basis for the plea. This is mandated in order to determine whether the plea is truly voluntary and to provide an adequate record for review. The court expressly states it did not reach any constitutional considerations in deciding the case. Although McCarthy was decided April 2, 1969 before the plea in this case was taken, it was not binding on the trial court, nor is it binding on this court, because it limits itself to federal procedural problems. We recognized the constitutional overtones inherent in the case when we decided State v. Sisco, discussed infra. We do not abandon such recognition now.

State v. Sisco, supra, also examined a plea of guilty. We there relied heavily on McCarthy v. United States, supra, recognized the binding effect of Boykin v. Alabama, supra, and adopted by judicial opinion

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the American Bar Association Project on Minimum Standards for Criminal Justice, Pleas of Guilty, Approved Draft, Nos. 1.4, 1.5 and 1.6 which require the court to personally address defendant and to follow certain procedures to make a satisfactory record as to the validity of the guilty plea.

State v. Sisco, supra, was decided July 24, 1969 after the plea of guilty here was taken. In State v. Jackson (Iowa 1970) 173 N.W.2d 567, 570, we said:

'We hold, as we did in State v. Vantrump, supra (Iowa 1969) 170 N.W.2d 453 that the guideline standards adopted in State v. Sisco apply only to guilty pleas entered after the date of that opinion, July 24, 1969. * * *.'

Boykin v. Alabama, supra, is the third case of note. Boykin was decided June 2, 1969 before the plea was taken in this case. It is binding on us as a matter of United States constitutional law. We recognized this mandate in State v. Sisco, supra. Boykin v. Alabama undoubtedly requires that in all pleas of guilty in state courts the record must disclose defendant voluntarily and understandably entered his plea of guilty. Further, it must be shown defendant knew he was waiving the privilege against self-incrimination, the right to trial by jury and the right to confront one's accusers. But the United States Supreme Court in Boykin did not attempt to impose a rule of criminal procedure mandating the manner by which the record was to be developed. This was left to the state courts and was met in Iowa by State v. Sisco, supra.

Although Sisco applies only to pleas entered after July 24, 1969 defendant is still entitled to a complete record at the time the plea is entered of the factors relevant in assisting the trial court and this court in making the constitutionally required determination that a defendant's guilty plea is voluntarily made. We therefore make the determination here in the light of the constitutional principles announced in Boykin v. Alabama, supra. When the record here is so examined it furnishes adequate support for the trial court's ultimate finding.

II. As the trial court observed, this is not a silent record. We have examined the original court reporter's transcripts as well as the record presented. The material supplies ample ...


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