Opinion
No. 38801
Decided December 2, 1964.
Habeas corpus — Criminal law — Accused's right to counsel — Must be informed of right — Evidence — Burden of proof — Appointment of counsel for indigent — Waiver of right.
IN HABEAS CORPUS.
This is an action in habeas corpus originating in this court. In the January term of 1961, the Grand Jury of Hamilton County returned three indictments, each charging petitioner, Curtis C. Madison, with issuing a check without sufficient funds. Petitioner, without the assistance of counsel, pleaded guilty and was sentenced on each indictment, the sentences to run consecutively.
At the hearing in this habeas corpus proceeding, petitioner testified that he tried to get a lawyer but had no funds. Petitioner testified further that he was not advised of his right to counsel, was not offered counsel and did not waive counsel. He testified also that the assistant prosecuting attorney told him that if he pleaded guilty and made restitution he would be placed on probation.
The Attorney General, on behalf of the state, presented as witnesses the trial judge and the assistant prosecuting attorney involved in petitioner's case. Each testified that he had no actual independent recollection of petitioner.
The trial judge testified, however, that he invariably followed a set procedure in criminal cases and had no recollection of any case where he deviated therefrom. He testified that the procedure is as follows:
On each arraignment day, those under indictment are brought into the courtroom. After the court is convened and the judge is on the bench, the criminal-court clerk then calls the calendar. As each indicted person's name is called, a deputy sheriff brings him before the rail. The clerk, in the presence of the judge, then questions the indicted person as to whether he has received and read the indictment and whether he understands it. He asks him whether he has counsel and if not whether he has funds to employ counsel. If the accused indicates that he has no funds, the clerk tells him that the court will appoint counsel for him if he wishes. The clerk then asks the accused how he desires to plead, and if the accused indicates a desire to plead guilty he is returned to the place where he was sitting. After the call of the calendar is completed, each person who indicated a desire to plead guilty is again brought before the judge. The judge then proceeds to question the accused. He asks him whether he understands that if he pleads guilty there will be no trial, and that the court will have to sentence him. He asks the accused whether he understands that he is entitled to counsel and has the right to consult with counsel. If the accused indicates that he does not want counsel and still desires to plead guilty, his plea is taken. The court then has the prosecuting attorney tell him the facts, and the accused is then either sentenced or referred to probation.
This statement of procedure was completely substantiated by the testimony of the assistant prosecuting attorney.
The criminal-court clerk was not presented as a witness. However, by agreement of counsel for the petitioner and respondent, an affidavit executed by the clerk was admitted into evidence. This affidavit fully confirms the statement of procedure in criminal cases as testified to by the trial judge.
So far as any promise of probation is concerned, both the prosecuting attorney and the assistant prosecuting attorney stated that their office has no contact with an indicted person until he is brought before the court for arraignment and unequivocally stated that no prisoner is ever told that he will get probation if he pleads guilty, and that Madison was not promised probation.
Both the judge and the prosecuting attorney testified also that as a matter of standard procedure every person charged with a felony who appears before the Municipal Court for preliminary hearing and who is without counsel is represented by the public defender. Thus, each accused at the outset of the proceeding against him has the opportunity to consult with and is represented by counsel.
Mr. Henry Clay Scott, for petitioner.
Mr. William B. Saxbe, attorney general, and Mr. William C. Baird, for respondent.
Petitioner bases his right to release on the alleged facts that he was not advised of his right to or offered counsel, and that he entered a plea of guilty without the assistance of counsel, offering in support of his contention the case of Doughty v. Maxwell, Warden, 11 L. Ed. (2d), 650, 84 S. Ct., 702.
A determination of the issues raised by petitioner requires a consideration of the evidence adduced to support or deny petitioner's claim that he was neither informed of nor waived his right to counsel.
It appears from the state's evidence as hereinbefore described that the uniform practice in that court was to explain to an accused his right to counsel at least twice.
What did petitioner offer to counterbalance this evidence of a well established custom? The only evidence presented was the uncorroborated statement of petitioner that the court did not inform him of his right to or offer him counsel. This, at the best, is a self-serving declaration. When such statement is considered in relation to petitioner's background of previous arrests and convictions, the evasiveness of his testimony in relation to such prior events, the inconsistencies between his statement at the hearing that he was promised probation and the statement he gave when he entered the penitentiary that he told the court he did not want probation, and the sheer incredibility of some of his testimony, it certainly is not sufficient to overcome the evidence presented by the state of the established customary mode of procedure in criminal cases. This is especially true when the state's evidence is considered in conjunction with the well known procedure in such cases throughout the state and the mandatory provisions of our statutes with reference to the appointment of counsel for an indigent.
Under the evidence presented, the only reasonable conclusion that may be reached is that petitioner was fully informed of his constitutional right to counsel.
We next turn our attention to whether it may be held that petitioner, having been informed of his right to counsel, knowingly and intelligently waived counsel.
To determine whether petitioner intelligently waived counsel, it is necessary to examine the background and statements of the petitioner and the reason back of his plea of guilty.
Petitioner is an intelligent well educated person with some college training and broad personal experiences.
Petitioner at the time of his conviction was 29 years of age. According to his own testimony herein, he was a high school graduate and had spent approximately two years in various colleges, studying sociology and theology. He had spent six and one-half years in the United States Army where he attained the grade of warrant officer, serving part of the time as a military policeman. While in the army, he had taken various courses in sociology and theology and even lectured on sociological problems.
Over the objection of his counsel, he testified that he had been arrested some 12 times on various charges, on some of which he was released without the charges being pressed and to others he pleaded guilty. He has never, so far as was brought out, served time in any institution. He testified that he knew he could have an attorney if he had the money to pay for one. Petitioner made no comment as to his knowledge of whether he knew that he was entitled to have an attorney appointed by the court to represent him.
With such evidence of petitioner's education, experience and background, it can be concluded only that he coldly and calculatedly pursued the course he did, fully aware of his rights, and voluntarily waived them with the hope that such conduct would procure probation for him.
The only reasonable conclusion that can be drawn from the evidence in this case is that petitioner's constitutional rights were fully explained to him, and that he knowingly and intelligently waived such rights.
So far as the contention of the petitioner that the assistant prosecuting attorney told him that he would get probation if he pleaded guilty is concerned, we are faced with the same situation as that on the question of counsel. On one hand, is the uncorroborated statement of the petitioner, on the other, is the testimony of the law-enforcement officers that not only is no one ever told that probation will be granted if a guilty plea is entered, but, also, that they have no contact with anyone under indictment until the accused is actually called before the court for arraignment. Once again, the evidence presented by the state far outweighs that of petitioner, and it cannot be found that this point is well taken.
From the evidence presented it can be determined only that petitioner's rights were completely protected in this case.
Even in the absence of such compelling evidence, the decision in Conlan v. Haskins, Supt., 177 Ohio St. 65, would compel a denial of petitioner's right to release. In that case, it was held that the custom of protecting an accused's right to counsel is so well established in the Ohio courts that judicial notice can be taken thereof, and that an uncorroborated statement of a petitioner is not sufficient to demonstrate that such right to counsel was denied.
Petitioner remanded to custody.
TAFT, C.J., ZIMMERMAN, MATTHIAS, GRIFFITH and HERBERT, JJ., concur.
O'NEILL and GIBSON, JJ., dissent.
The only difference between this case and Conlan v. Haskins, Supt. (1964), 177 Ohio St. 65, is that here the trial judge and the assistant prosecuting attorney testified as to the normal trial procedure followed by them. There is no testimony as to what in fact occurred at the trial of this petitioner. In my opinion, this record also fails to show that petitioner was offered counsel, and that he intelligently and understandingly rejected the offer, thereby waiving his constitutional right to counsel.
O'NEILL, J., concurs in the foregoing dissenting opinion.