Summary
In State v. Workman, 186 Neb. 467, 183 N.W.2d 911, we quoted from McMann v. Richardson, supra: "Waiving trial entails the inherent risk that the good-faith evaluations of a reasonably competent attorney will turn out to be mistaken either as to the facts or as to what a court's judgment might be on given facts. * * * That a guilty plea must he intelligently made is not a requirement that all advice offered by the defendant's lawyer withstand retrospective examination in a post conviction hearing."
Summary of this case from State v. HallOpinion
No. 37704.
Filed February 19, 1971.
1. Criminal Law: Witnesses. Defendant's issue on the right of confrontation is controlled by State v. Turner, ante p. 424, 183 N.W.2d 763. 2. Statutes: Constitutional Law. Where a statute is susceptible of two constructions, one of which renders it constitutional and the other unconstitutional, it is the duty of this court to adopt the construction which without doing violence to the fair meaning of the statute will render it valid. 3. Statutes: Legislature. The Nebraska Legislature may lawfully adopt by reference an existing law or regulation of another jurisdiction, including the United States. 4. Statutes. We interpret section 28-486(8), R. S. Supp., 1969, to include those portions, of the Federal Food, Drug, and Cosmetic Act which were in existence on June 6, 1967. 5. Criminal Law: Indictments and Informations: Pleading. All defects that may be excepted to by a motion to quash an information will be taken to be waived by defendant pleading the general issue.
Appeal from the district court for Douglas County: LAWRENCE C. KRELL, Judge. Affirmed.
A. Q. Wolf and Bennett G. Hornstein, for appellant.
Clarence A. H. Meyer, Attorney General, and Ralph H. Gillan, for appellee.
Heard before CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.
This is an appeal from a judgment and sentence of 5 years on a guilty plea for the unlawful possession of a depressant and stimulant drug. Defendant premises his appeal on the unconstitutionality of the statute and also on his assertion that the record fails to affirmatively show defendant pled guilty voluntarily, understandingly, intelligently, and with full knowledge of the rights he was waiving by his plea. We affirm.
Defendant filed a brief herein, based solely on his contention that this case was controlled by Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L.Ed.2d 274, because the court failed to advise the defendant specifically that by pleading guilty he was waiving his constitutional right to confront and cross-examine his accusers. The record herein sets out a detailed examination by the trial court before accepting a guilty plea, after permitting the defendant to withdraw his previous plea of not guilty. From the record there is no question in our mind but that the defendant knowingly and intelligently entered his plea herein, although the court did not specifically mention the right of confrontation. This phase of the case is controlled by State v. Turner, ante p. 424, 183 N.W.2d 763.
A month after defendant filed his brief herein he filed a supplemental brief asserting for the first time alleged jurisdictional defects and the unconstitutionality of the statute. Defendant now charges that section 28-499, R. S. Supp., 1969, under which he was charged, is unconstitutional because section 28-486(8), R. S. Supp., 1969, defining depressant or stimulant drugs in part defines them with reference to the federal act.
Section 28-499, R. S. Supp., 1969, is as follows: "No person, other than a person described in section 28-497 or 28-498 shall possess any depressant or stimulant drug unless (1) such drug was obtained upon a valid prescription and is held in the original container in which such drug was delivered; or (2) such drug was delivered by a practitioner in the course of his professional practice and the drug is held in the immediate container in which such drug was delivered."
Section 28-486(8), R. S. Supp., 1969, is as follows: "(8) Depressant or stimulant drug shall mean:
"(a) Any drug which contains any quantity of (i) barbituric acid or any of the salts of barbituric acid; or (ii) any derivative of barbituric acid which has been designated under section 502(d) of the federal act as habit-forming;
"(b) Any drug which contains any quantity of (i) amphetamine or any of its optical isomers; (ii) any salt of amphetamine or any salt of an optical isomer of amphetamine; or (iii) any substance designated by regulations promulgated under the federal act as habit-forming because of its stimulant effect on the central nervous system; or
"(c) Any drug which contains any quantity of a substance designated by regulations promulgated under the federal act as having a potential for abuse because of its depressant or stimulant effect on the central nervous system or its hallucinogenic effect; * * *."
Section 28-486 (11), R. S. Supp., 1969, should be read in conjunction with subsection (8) thereof. It provides: "(11) The term federal act shall mean the Federal Food, Drug, and Cosmetic Act, 52 Stat. 1040 (1938), and all amendments thereto, 21 U.S.C. § 301 to 392."
It is defendant's contention that the incorporation by reference from the federal act is an unconstitutional delegation by the Nebraska Legislature to an administrative officer of its powers to create criminal offenses in violation of Article II, section 1, and Article III, section 1, Constitution of Nebraska. There would be some merit to defendant's contention if we were to construe the statute to include federal regulations or law promulgated or enacted after the passage of our statute. This we do not do. As we said in State ex rel. Meyer v. Duxbury, 183 Neb. 302, 160 N.W.2d 88: "Where a statute is susceptible of two constructions, one of which renders it constitutional and the other unconstitutional, it is the duty of the court to adopt the construction which, without doing violence to the fair meaning of the statute, will render it valid."
There can be little question but that incorporation by reference is permitted in Nebraska if the incorporation is of an existing law or regulation. See Anderson v. Tiemann 182 Neb. 393, 155 N.W.2d 322, in which we said: "It is conceded that the Nebraska Legislature may lawfully adopt by reference an existing law or regulation of another jurisdiction including the United States. Lincoln Dairy Co. v. Finigan, 170 Neb. 777, 104 N.W.2d 227."
We interpret the statute to include those portions of the federal act referred to which were in existence on June 6, 1967, the effective date of section 28-486, R. S. Supp., 1969.
In his brief defendant attacks the constitutionality of section 28-490, R. S. Supp., 1969. This section permits seizure without warrant of certain drugs. The present record fails to disclose any seizure of drugs herein pursuant to that section. There is no motion to suppress or any other indication of such seizure of record. In any event, defendant's plea cured any defect if one was present. In the absence of very unusual circumstances, this court should not go behind pleas of counseled defendants to determine whether some potential evidence may have been unlawfully obtained. On this point, the following from McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763, is very pertinent: "As we said in Brady v. United States, 397 U.S. at ___, 90 S.Ct. at 1473-1474, 25 L.Ed.2d at ___, the decision to plead guilty before the evidence is in frequently involves the making of difficult judgments. All the pertinent facts normally cannot be known unless witnesses are examined and cross-examined in court. Even then the truth will often be in dispute. In the face of unavoidable uncertainty, the defendant and his counsel must make their best judgment as to the weight of the State's case. Counsel must predict how the facts, as he understands them, would be viewed by a court. If proved, would those facts convince a judge or jury of the defendant's guilt? On those facts would evidence seized without a warrant be admissible? Would the trier of facts on those facts find a confession voluntary and admissible? Questions like these cannot be answered with certitude; yet a decision to plead guilty must necessarily rest upon counsel's answers, uncertain as they may be. Waiving trial entails the inherent risk that the good-faith evaluations of a reasonably competent attorney will turn out to be mistaken either as to the facts or as to what a court's judgment might be on given facts.
"That a guilty plea must be intelligently made is not a requirement that all advice offered by the defendant's lawyer withstand retrospective examination in a post-conviction hearing. Courts; and judges continue to have serious differences among themselves on the admissibility of evidence, both with respect to the proper standard by which the facts are to be judged and with respect to the application of that standard to particular facts."
Defendant was represented at the time of his plea by competent counsel from the same office with which his present counsel is associated.
Defendant further argues: "Sections 28-499, 28-487, and 28-489, R. S. Supp., 1969, making it a felony to merely possess a depressant or stimulant drug, amount to proscriptive action beyond the lawful limits of the state's police power into an area in which there is no legitimate state interest, rendering these provisions violative of the drug possessor's constitutional right of privacy and an imposition upon him of unconstitutional cruel and unusual punishment." This is indeed a novel approach in this jurisdiction. It is defendant's argument that a body of constitutional law is emerging, holding that a state has no legitimate interest in legislating against specific acts of individuals when such acts, however harmful to the individual performing them, have no substantially harmful effect on others. Without citing cases in point on this broad constitutional question, the defendant is in effect contending that the State should not prohibit the possession of narcotics. Without comment on the serious social and moral problem created by the drug traffic, we point out that defendant is making his contentions in the wrong forum. They might appropriately be addressed to the Nebraska Legislature, but it is the duty of this court to interpret and enforce laws passed by the Legislature if constitutionally valid, which this one is.
Defendant's last assignment of error is to the effect that the district court lacked jurisdiction to accept a guilty plea because the information purporting to charge the defendant failed to contain a distinct allegation of each essential element of the crime as defined by section 28-499, R. S. Supp., 1969. The information adequately alleged the commission of a crime by the defendant. The information, so far as material on this point, reads: "* * * Darwin George Workman * * * did unlawfully possess a depressant or stimulant drug without a valid prescription, and not held in the original container in which such drug was delivered or not delivered by a practitioner in the course of his professional practice, * * *." This is essentially the language of section 28-499, R. S. Supp., 1969, set out above, rearranged to charge the crime involved in that section. In any event, if there were merit to defendant's contention, it would have been waived by his plea of guilty.
Section 29-1812, R.R.S. 1943, provides: "The accused shall be taken to have waived all defects which may be excepted to by a motion to quash, or a plea in abatement, by demurring to an indictment or pleading in bar or the general issue."
In State v. Fiegel, 184 Neb. 704, 171 N.W.2d 643, we held: "All defects that may be excepted to by a motion to quash an information are taken to be waived by defendant pleading the general issue."
There is no merit to any of defendant's assignments of error, and the judgment is affirmed.
AFFIRMED.
WHITE, C.J., took no part in the consideration of this case.