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03/16/62 STATE v. RICHARD EDWARD DEHLER

SUPREME COURT OF MINNESOTA


March 16, 1962

STATE
v.
RICHARD EDWARD DEHLER

Appeal by Richard Edward Dehler from a judgment of the Morrison County District Court, W. R. Rogosheske, Judge, whereby he was convicted of murder in the second degree.

Certiorari Denied, 371 U.S. , 83 S. Ct. 87, L. ed. (2d) .

Thomas Gallagher, Justice.

SYLLABUS BY THE COURT

-- refusal to quash or dismiss proceedings -- controlling case.

1. Orders of court denying various motions of defendant to quash or dismiss criminal proceedings under murder indictments on ground they were in violation of defendant's state and Federal constitutional rights affirmed on basis of State v. Dehler, 257 Minn. 549, 102 N.W.2d 696.

-- right to fair trial -- change of venue because of local prejudice -- discretion of trial court.

2. Under Minn. St. 627.01 determination of motion for change of venue in criminal proceedings on ground that local prejudice prevented possibility of fair and impartial trial rested in sound discretion of trial court.

Penalty -- criminal penalty -- reduction by amendment enacted after commission of crime -- law applicable.

3. Provisions of § 619.08, as amended by L. 1959, c. 683, which fixed penalty for second-degree murder at imprisonment for not less than 15 years nor more than 40 years, held not applicable to crime committed prior to enactment of amendment by virtue of provision therein that "offenses committed, and * * * punishments incurred therefor, prior to the taking effect hereof, shall be * * * punished * * * with the same effect as if this amendment had not been passed."

-- trial -- motion to change plea after sentence -- propriety of denial.

4. In absence of statutory requirement that court advise defendant in advance as to penalty to be imposed upon plea of guilty to crime of murder in the second degree, and where defendant was fully aware of imminent probability that penalty in effect at time of commission of crime would be imposed, held court did not abuse discretion in denying motion made after sentence to permit withdrawal of guilty plea and to accept plea of not guilty instead.

The opinion of the court was delivered by: Gallagher

Defendant appeals from a judgment of conviction of the crime of murder in the second degree in the District Court of Morrison County on the grounds that (1) certain of his constitutional rights were denied; (2) the court erred in denying his motion for change of venue; and (3) the court erred in denying his motion made after a sentence of life imprisonment was imposed to permit withdrawal of a plea of guilty to the crime of murder in the second degree and to accept plea of not guilty thereto.

On December 30, 1941, defendant was indicted by the grand jury of Morrison County for murder in the first degree in the death of Regina Dehler, his mother. On January 23, 1942, after a plea of not guilty and trial, the jury returned a verdict of guilty and defendant was sentenced to life imprisonment.

In May 1959, defendant was released on to stand trial again on the indictment described on the ground that in the first proceedings thereunder his rights as a juvenile had been denied. On May 20, 1959, he was arraigned under such indictment and entered a plea of not guilty and former jeopardy as a defense thereto. He subsequently moved for an order quashing and dismissing the indictment.

On June 8, 1959, the grand jury of Morrison County returned four separate indictments charging defendant with murder in the first degree in the deaths of Regina Dehler, August Benedict Dehler, Kenneth Dehler, and Anna Mae Dehler, on December 19, 1941. On June 10, 1959, he was arraigned on these four indictments and entered a plea of not guilty to all of them. He also moved for an order quashing and dismissing these indictments on the same grounds as those specified in the motion made with reference to the 1941 indictment.

On June 10, 1959, the District Court of Morrison County certified that the questions raised in all such motions were so important and doubtful as to require the decision of the supreme court pursuant to Minn. St. 632.10. In its opinion with respect thereto, State v. Dehler, 257 Minn. 549, 102 N.W.2d 696, this court determined such questions as follows:

(1) The District Court of Morrison County had jurisdiction to arraign and try defendant for the offense charged under the indictment returned December 30, 1941;

(2) Where the offense was committed prior to the time defendant was 18 years of age, but his arraignment was not until after he became 18, the case could be tried in the district court without any preliminary proceedings in juvenile court;

(3) The previous trial and conviction in 1942 would not constitute former jeopardy since the court which tried defendant at that time lacked jurisdiction and defendant not having asserted denial of his rights until May 1959 had waived any right he might otherwise have had to a speedy trial;

(4) Defendant was not prejudiced in the second trial because certain witnesses had removed from the state in that under § 611.08 depositions of absent witnesses for defendant may be taken as in civil actions;

(5) Defendant was not prejudiced as to his defense of insanity by lapse of time in that it had been his duty in the first instance to prove his mental state at the time of the commission of the crime;

(6) Defendant upon conviction would not be required to serve an additional term without allowance of credit for time served and good conduct earned in view of § 631.49, which provides that such credit be given in diminution of a sentence;

(7) Defendant was not deprived of due process or equal protection under the Federal constitution, any such rights having been waived by his failure to raise such constitutional question until 1959.

Following this decision, defendant moved the District Court of Morrison County for a change of venue. This was denied. By order dated August 29, 1960, trial under the original indictment of December 30, 1941, was set for November 14, 1960. On November 15, 1960, defendant renewed all previous motions to quash the indictment (more particularly set forth in State v. Dehler, (supra) ), and such motions were again denied. Defendant at that time refused to enter a plea and accordingly the court entered a plea of not guilty on his behalf. Defendant by his counsel then offered to plead guilty to the crime of murder in the third degree under the indictment dated December 30, 1941. Subsequently, this offer was withdrawn and by agreement with counsel defendant's trial was set for December 5, 1960. On that date a jury was impaneled and sworn, and on December 12, 1960, defendant appeared with counsel and formally entered a plea of guilty to murder in the second degree under the indictment of December 30, 1941. The court accepted this plea and the jury was discharged. On December 19, 1960, defendant moved that the court sentence him pursuant to § 619.08, as amended by L. 1959, c. 683, which became effective on April 24, 1959. The amendment changed the penalty for murder in the second degree from life imprisonment, as it was at the time of defendant's commission of the crime, to imprisonment for not less than 15 nor more than 40 years. As amended, § 619.08 further provides:

"All offenses committed, and all penalties and punishments incurred therefor, prior to the taking effect hereof, shall be prosecuted and punished in the same manner and with the same effect as if this amendment had not been passed."

The court denied the motion and sentenced defendant to life imprisonment. Defendant then moved that he be permitted to withdraw his plea of guilty to murder in the second degree and to stand trial on the indictment of December 30, 1941. This motion was likewise denied. *fn1

In support of his motion for change of venue, defendant relied upon certain radio newscasts and newspaper publications in Morrison County, most of which were published in 1942, and none of which expressed any opinion as to his guilt or innocence.

On appeal defendant renews the contentions made in the prior proceedings in this court and urges further that the trial court erred (1) in denying his motion for change of venue; (2) in failing to advise him that the consequences of his plea of guilty to murder in the second degree would be a sentence of life imprisonment; and (3) in not permitting him to withdraw his plea of guilty.

1. As to the various motions of defendant to quash or dismiss the proceedings in the second trial and all matters pertaining thereto on the grounds that they constituted violation of his state and Federal constitutional rights and as to the court's denial of such motions, we adhere to our previous opinion, State v. Dehler, (supra) , for the reasons stated therein and affirm the orders made in reliance thereon.

2. With reference to defendant's motion for change of venue based upon his contention that local publicity and prejudice prevented the possibility of a fair and impartial trial, we can but restate the well-established principle that determination of such matters ordinarily rests within the sound discretion of the trial court, and that where, as here, there is an absence of any substantial showing that there was an abuse of such discretion, this court will not interfere. State v. Waddell, 187 Minn. 191, 245 N.W. 140; State v. Shepard, 171 Minn. 414, 214 N.W. 280; State v. Nelson, 91 Minn. 143, 97 N.W. 652.

3. Defendant's contention that he was entitled to a sentence imposed under § 619.08, as amended by L. 1959, c. 683, we feel is without merit. Under the provisions of this section prior to the 1959 amendment, the penalty for murder in the second degree was life imprisonment. The amendment provided that this penalty be changed to imprisonment for not less than 15 years nor more than 40 years. Opposed to defendant's contention is the clear language of the amendment that "ll offenses committed, and all penalties and punishments incurred therefor, prior to the taking effect hereof, shall be prosecuted and punished in the same manner and with the same effect as if this amendment had not been passed." It is difficult to conceive any language which could more clearly express the legislative intent that, as to offenses committed prior to the amendment, the law in effect as of the date of such offense should govern. Defendant's contention that the word "shall," as used therein, should be construed as permissive rather than mandatory is contrary not only to the intent expressed in the section but likewise opposed to § 645.44, subd. 16, which provides that when the word "shall" is used in a statute the term is mandatory. We cannot escape the conclusion that the mandatory exception to the application of the amended statute be given effect. Cashman v. Hedberg, 215 Minn. 463, 10 N.W.2d 388; State ex rel. Laurisch v. Pohl, 214 Minn. 221, 8 N.W.2d 227. It would follow that, in imposing upon defendant a sentence of life imprisonment for murder in the second degree, the trial court correctly construed § 619.08, as amended.

4. We find no statute and no decisions of this court which would require a trial court in criminal proceedings to advise a defendant in advance as to the penalty intended to be imposed upon a plea of guilty to murder in the second degree. Further, in the instant case we find nothing in the record to indicate that the court was requested to do this. Normal procedure, where discretion is involved in imposing a penalty, usually requires postponement of sentence until after the plea of guilty, and after the report of any probationary officers upon whom is placed the responsibility of investigating and reporting as to a defendant's background, character, prior convictions, and like matters which ordinarily affect the sentence the court will ultimately impose. Defendant here, while not advised as to the penalty, certainly was aware that the court at no time had indicated either to him or to his counsel that it would be guided by the statute as amended. While his counsel argued that the lesser penalty should be imposed, defendant was aware that counsel for the state vigorously opposed this idea and made it clear to defendant and to his counsel, as well as to the court, that in his opinion the penalty as it existed prior to the amendment was mandatory. Under such circumstances, we find no error in the procedure outlined.

We disagree with defendant's assertion that here the refusal of the trial court to permit him to withdraw his plea of guilty constituted reversible error. Under § 630.29, it is provided that at any time before judgment the court may permit a plea of "guilty" to be withdrawn and a plea of "not guilty" substituted therefor. Under this statute we have held that whether an accused should be permitted to withdraw a plea of guilty before judgment rests largely in the discretion of the trial court, and that its action in this respect will not be reversed unless it clearly appears that there has been an abuse of such discretion. State v. Harding, 260 Minn. 464, 110 N.W.2d 463; State v. Jones, 234 Minn. 438, 48 N.W.2d 662. Here we find no abuse of discretion. As has been indicated above, defendant at all times was aware of the possible consequences of his plea. He knew the state's contention that the provisions of the amendment did not apply to crimes committed prior to its enactment, and since, as we have held above, no obligation rested upon the court to advise him as to the exact penalty that would be imposed upon his plea of guilty, we must conclude that the trial court did not abuse its discretionary function in denying defendant's request to withdraw his guilty plea.

Affirmed.


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