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Utah Supreme Court Briefs (1965 –)

1971 Kjeld Victorio Guglielmetti v. John W. Turner, Warden, Utah State Prison : Appellant's Brief Utah Supreme Court

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Original Brief submitted to the Utah Supreme Court; funding for digitization provided by the Institute of Museum and Library Services through the Library Services and Technology Act, administered by the Utah State Library, and sponsored by the S.J. Quinney Law Library; machine- generated OCR, may contain errors. Larry V. Lunt; Attorney for Defendant-RespondentGalen Ross; Attorney for Plaintiff-Appellant

Recommended Citation Brief of Appellant, Guglielmetti v. Turner, No. 12600 (Utah Supreme Court, 1971). https://digitalcommons.law.byu.edu/uofu_sc2/3171

This Brief of Appellant is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Supreme Court Briefs (1965 –) by an authorized administrator of BYU Law Digital Commons. For more information, please contact [email protected]. IN THE SUPREME COURT of the STATE OF UTAH

KJELD VICTORIO GUGLIELMETTI, Plaintiff-Appellant,

-vs.- Case No. 12600 JOHN W. TURNER, Warden, Utah State Prison, Defendant-Respondent

APPELLANT'S BRIEF

An Appeal from the Judgment of the Third District Court for Salt Lake County, State of Utah Honorable Stewart M. Hansen, Presiding

G.NLEN ROSS Attorney-at-Law 731 East South Temple Salt Lake City, Utah Attorney for Plaintiff- r"".

Appellantf \ LARRY V. LUNT L ':~, 0 \ \ \ - ' • .--. ~ -.J ~ l Attorney-ta-Law ) _) State Capitol Building Salt Lake City, Utah Attorney for Defendant- Respondent INDEX Page STATEl\IENT OF THE NATURE OF THE CASE. ______1

DISPOSITION IN THE LOWER COURT______2

RELIEF SOUGHT ON APPEAL______2

STATEMENT OF THE FACTS ______------3

ARGUMENT ------4

POINT I-IN ACCEPTING GUILTY PLEAS TO FELONY CRIMES, COURTS ARE REQUIRED TO ASCERTAIN THAT A DEFENDANT IS VOLNTARYILY AND UN- DERSTANDINGLY PLEADING BECAUSE BY A GUILTY PLEA A DEFENDANT WAIVES A NUM- BER OF FUND AMENT AL CONSTITUTION AL RIGHTS, AND THE RECORD MUST SHOW THAT A FEDERAL CONSTITUTIONAL STANDARD OF VOLUNTARINESS AND UNDERSTANDING HAS BEEN MET. ___ _ 4

POINT II-ABSENT A WARNING BY TRIAL COURT, AND NOTWITHSTANDING PRESENCE OF COUN- SEL THE RECORD DISCLOSES ADEQUATE EVI- DENCE TO SUPPORT APPELLANT'S CONTEN- TION THAT HIS ENTERING OF A PLEA OF GUILTY WAS NOT VOLUNTARY BECAUSE UN- CONSTITUTIONAL INDUCED BY A PLEA BAR- GAINING PROCEDURE.______------18

POINT III-ABSENT A WARNING BY TRIAL COURT AND NOTWITHSTANDING PRESENCE OF COUN- SEL, APPELLANT'S GUILTY PLEA WAS NOT VOL- Pa,yr UNTARILY ENTERED BECAUSE INDUCED BY LACK OF INFOR.:\IATION AS TO THE CONSE- QUENCES THEREOF, A=1IOUNTING TO GROSS E\- ADEQU ACY OF RE:::'RESENTATION AS FAR AS THE RECORD DISCLOSES, THEREBY DEPRIVING I-iI=.I OF EFFECTI\'E ASSIST A~~CE OF COU>JSEL GUAR),NTEED BY THE SIXTH AN"D FOUR- TEENTH A~.IEND~lENTS OF THE U.S. CO:>JSTITU- TION. --- -- 22

POINT IY-AP?I:LANT IS ENTITLED TO THE OP- ERATIOI\ OF TI-IE PRESU.:\IPTION THAT HIS GUILTY PLEA WAS INVOUNTARY UNLESS THE RECORD SHOVVS AN INTELLIGENT AND YOLUN- TARY Vi AIVER OF BASIC CONSTITL'TIONAL RIGHTS. _ ___ 26

POINT \r-EVEN IF NOT ENTITLED TO THE OPERA- TION OF A FRESUl\IPTIO:\T OF INVOLUNTARI- XESS, AP?ELLANT l\~ET THB UTAH CASE LAW REQUIRE!\IEKT 0 F INVOL"GNT ARINESS BY SHO\VE"G VIOLATION OF A FUNDA:1IENTAL CON- STITUTIOn AL RIGHT, Al"-:-D IT \VAS ERP.OR TO HOLD THAT HE DID NOT ?1IEET HIS BURDEN OF PROOF. ---- ~

POINT VI -- /\PPELL,\NT'S GUILTY PLEA WAS NOT Ul'~DBRSTJ\NDINGLY :'-IADE BECAUSE SO FAR AS THE RECORD DISCLOSES, APPELLANT WAS AT r-;o TDJ Z ADVISED OR AD:'.IONISIIED AS TO THE POSSIDl E l\IAXEIU:\I CONSE('UENCES OF SUCH A PL:r<:;,, OR AS TO Til~ ST A TU':LORY i\IINI'.\IU'.\I SENTENCE OF Fl\'E YE.\HS, ,\;-rn AS A TIK\SON- INDEX-Continned

Page ABLY INTELLIGENT P E R S 0 N APPELLANT COULD HAVE BELIEVED THAT HE WOULD RE- CEIVE A RELATIVELY MINOR PENALTY, AND SAID FAILURE TO l\IAKE CLEAR TO HIM THE CONSEQUENCES OF PLEADING GUILTY AMOUNT- ED TO ERROR SO SUBSTANTIAL AND PREJU- DICIAL AS TO OBVIATE ANY POSSIBILITY OF APPELLANT'S PLEADING WITH ANY REALISTIC CONCEPTION OF THE PROBABLE RESULTS THEREOF .. ------31

POINT VII - A DECISION OF THIS COURT HANDED DOWN SINCE THE DATE OF APPELLANT'S SEN- TENCING HAS DEFINED THE UTAH STATUTORY LANGUAGE RELATIVE TO SENTENCING FOR THE CRil\1E OF SELLING A NARCOTIC DRUG TO IN- CLUDE THE POSSIBILITY OF PROBATION BY THE TRIAL COURT, WHICH LANGUAGE HAD PRE- VIOUSLY SEEMED TO MANDATE INCARCERA- TION FOR AN INDETERMINATE TERM OF FROi\I FIVE YEARS TO LIFE; AND SINCE THE RECORD OF APPELLANT'S SENTENCING INDICATES THAT THE JUDGE WAS UNAWARE THAT HE COULD GRANT PROBATION, THEREFORE THE SENTENCE IMPOSED UPON APPELLANT MAY HAVE BEEN FAR GREATER THAN THE LAW RE- QUIRED, OR THAN THE TRIAL COURT WOULD HAVE IMPOSED HAD HE BEEN AW ARE OF THE PROBATIONARY OPTION, AND THE SENTENCE SHOULD BE REDUCED ACCORDINGLY. ------36

CONCLUSION __ ------38 INDEX-Continued Page UTAH CASES CITED

Brnwn v. Turner, 21 U.2d 96, 440 P.2d 968 (1968) ______30

Klotz v. Turner, 23 U.2d 303, 462 P.2d 705 ( 1969 >------_ 1.3

Kryger and Stewart v. Turner, ______U.2d ______, 479 P.2d 477 ( 1971) ------24

:,Iayne v. Turner, 24 U.2d 195, 468 P.2d 369 (1970) ______29

State v. Banford, 13 U.2d 63, 368 P.2d 473 ( 1962) ______29, 32

State v. Barlow, ______U.2d _____ , 283 P.2d 236 (1971)___ . 37

FEDERAL CASES CITED

c;.S. SUPREME COURT

Tioykin v. Alabama, 395 U.S. 238, 23 L.Ed. 2 274, 89 S. Ct. 709 ( 1969) ______5, 26

Carnley v. Cochran, 369 U.S. 506, 8 L.Ed. 2 70, 82 S. Ct. 884 (1962) ------

Douglas v. Alabama, 380 U.S. 415, 13 L.Ed. 2 934, 85 S. Ct. 107 4 (1965) ------·--- -

:.IcCarthy v. U.S., 394 U.S. 4G9, 22 L.Ed. 2 418, 89a S. Ct. 1166 (1969)

~.:achiba v. U.S., 368 U.S. 487, 7 L. Ed. 2 473, 82 S. Ct. 510 (1962) INDEX~Continued

Page McMann v. Richardson, 397 U.S. 759, 25 L. Ed. 2 763 90a S. Ct. 1441 (1970) ·························...... •...... 22

N"0rth Carolina v. Alford, 400 U.S. 25, 27 L.Ed. 2 162, 91 S. Ct. 160 (1970) ...... ------··· 23

Parker v. North Carolina, 397 U.S. 790, 25 L.Ed. 2 785, 90 S. Ct. 1458, 90 S. Ct. 1474 ...... ______5

Ziang Sung Wan v. U.S., 266 U.S. 1, 69 L.Ed. 131, 455 S. Ct. 1 (1924) ····················································································19

INFERIOR FEDERAL COURTS

Jones v. U.S., (2dCir. 1971) Bur. Nat. Affrs., 9Crt. Rep. 2012 .. 10

Munich v. U.S., 337 F.2d 356 (9 Cir. 1964) ...... 29, 33

Shelton v. U.S., (5th Cir. 1957) 242 F. 2d 101...... ------19

U.S. ex rel. Fink v. Rundle, 414 F.2d 542 (3d Cir. 1969)...... 8

U.S. v. Malcolm, 432 F.2d 809 (2d Cir. 1970) ...... 29

Waddy v. Heer, 383 F.2d 789 (6th Cir. 1967) ...... 11

William v. Beto, 354 F.2d 698 (5th Cir. 1965) ...... 24

McCulloch v. U.S., 231 F. Supp. 740 (N.D. Fl. 1964) ...... 29

CASES AND AUTHORITIES

Quibell v. U.S., 265 F. Supp. 474 (S.D. Cal. 1966) ...... 29

U.S. ex rel. Smith v. Hendrick, 260 F. Supp. 235 (ED Pa. 1966) 8

U.S. ex rel. Young v. lVlonroney, 309 F. Supp. 109 (E.D. Pa. 196!1) ...... 8 INDEX-Continued

CASES FROM OTHER STATES

Commonwealth ex rel. Wes v. Rundle 428 Pa 102 2"7 A 2d 196 ------' .------' ._, . . 33

Day v. Page, 436 P.2d 59 (Okla. Crim. 19) ______------···· 33

People v. Baxton, 10 Ill. 2d 295, 139 NE2d 754, (1957) cert. den. in 353 U.S. 976 ------·------______11

People v. Nixon Fooks, Land and Robinson, 21 NY2d 338, 234 NE2d 687 ( 1967) ______12, 29 ,

People v. Seaton, 19 NY2d 404, 227 NE2d 294 (1967) ___ --·-·· . 11

State v. Blaylock, 394 SW 2d 364 (l\10. 1965) ______11, 29, 33

State v. Burke, 22 Wis. 2d 486, 126 NW2d 91 (1964) ______-· 11

State v. Jones, 267 Minn. 421, 127 NW 2d 153 ( 1964). ·------··--- 33

Woods v. Rhay, 68 Wash. 601, 414 P.2d 601 (1966) cert. den. in 385 U.S. 905, 17 L.Ed. 2d 135, 87 S. Ct. 215 -----·------·------······-·········-·····-····------·------·-- 11, 33

STATUTES CITED t.'tah Code Anno. (1953), § 58-13a-44 (3) ---·-·-- 37

Utah Code Ann. ( 1953), § 77-24-6 ------·---·-····--- - ··-··-· .. 29,32

Federal Rules of Criminal Procedure, Rule 11, Pleas______5

[.)lorado Revised Statutes, Anno.§ 39-7-8 _ ---··-·

Illinois Revised Statutes, c. 38 §§ 113-1, 114-1.. - . . 11 INDEX-Continued Page OTHER AUTHORITIES

American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty, Tentative Draft (Feb. 1967) ------11

Annotation, ALR2d, Later Case Service, 203 supplementing 97 ALR2d 549-604 ______33