Sandoval v. Tinsley, 7721.

• Decision Date: 12 November 1964
• Docket Number: No. 7721.,7721.
• Citation: 338 F.2d 48
• Parties: Richard A. SANDOVAL, Appellant, v. Harry C. TINSLEY, Warden, Colorado State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

338 F.2d 48 (1964)

Richard A. SANDOVAL, Appellant, v. Harry C. TINSLEY, Warden, Colorado State Penitentiary, Appellee.

No. 7721.

United States Court of Appeals Tenth Circuit.

November 12, 1964.

Donald K. Bain, Denver, Colo. (Holme, Roberts, More & Owen, Denver, Colo., of counsel, on the brief), for appellant.

John P. Moore, Asst. Atty. Gen. (Duke W. Dunbar, Atty. Gen., and Frank E. Hickey, Deputy Atty. Gen., with him on the brief), for appellee.

Before MURRAH, Chief Judge, and BREITENSTEIN and SETH, Circuit Judges.

SETH, Circuit Judge.

This appeal was taken from an order of the United States District Court for the District of Colorado, denying appellant's petition for writ of habeas corpus. The appellant is confined in the Colorado State Penitentiary, having been sentenced in 1960 on a charge of robbery and conspiracy to commit robbery.

A hearing was held in the United States District Court on appellant's petition which urged that he had not been afforded counsel in the state proceedings. During the hearing, appellant was present and testified. There was also introduced the transcript of proceedings in the Denver District Court of August 1960 at which time the hearing took place which is the basis of appellant's present objections. The United States District Court found that the appellant had no state remedies available to him, held he had waived his right to counsel, and denied the petition.

The record shows that the appellant entered a plea of not guilty before the Denver District Court on the charge of robbery and conspiracy to commit robbery. A date for the trial was set, but at the time for trial, no counsel had yet been engaged by or appointed for the appellant. When the case was called, the following proceedings took place:

"THE COURT: Are you prepared to go to trial in this matter?

"THE DEFENDANT: Your Honor, I would like to know if I can change my plea?

"THE COURT: To change your plea in this matter?

"THE DEFENDANT: Yes.

"THE COURT: How old are you, Mr. Sandoval?

"THE DEFENDANT: 19.

"THE COURT: Do you understand that on the 29th day of April, 1960, you entered a plea of not guilty to both counts, namely, robbery, and conspiracy to commit the same, is that right?

"THE DEFENDANT: Yes.

"THE COURT: On this 21st day of July, 1960, it is your wish, as expressed to this Court, that you wish to withdraw both of those pleas of not guilty. Is that right?

"THE DEFENDANT: Yes, sir.

"THE COURT: You want to be arraigned in this matter?

"THE DEFENDANT: Yes, sir.

"THE COURT: In Case No. 46932, the People of the State of Colorado versus Richard Allen Sandoval, and this matter, Mr. Sandoval, you stand here charged with the offense of robbery:

"What say you to this charge? Guilty, or not guilty?

"THE DEFENDANT: Guilty.

"THE COURT: Mr. Sandoval, before the Court can accept your plea, and I wish that you pay strict attention to everything I say to you, you are entitled to a trial by jury:

"You are entitled to representation in this court by competent counsel. If you don\'t have the funds with which to employ an attorney, this Court will appoint one for you:

"That upon receipt of this plea, it is discretionary with this Court to sentence you to the State reformatory at Buena Vista, or to the State Penitentiary at Canon City, Colorado, for a period of not less than one, nor more than ten years.

"Now, understanding all those elements, do you persist in this plea of guilty, to the charge of robbery in this Case No. 46942 sic?

"THE DEFENDANT: Yes, sir."

The court then made essentially the same statements to the appellant on the count of conspiracy to commit robbery.

The appellant contended before the United States District Court, as he does here, that the state court failed to appoint counsel to assist him in his defense as it should have done, that he did not waive his constitutional right to counsel, and that he was not properly advised of his right to counsel nor of the nature of the charges against him. The United States District Court, after considering appellant's testimony given before it during the course of the hearing and the transcript of the proceedings before the state court, found that the appellant had waived his right to counsel.

The judgment of the state trial court certainly can not be "lightly" set aside on such collateral attack as this, and that judgment "carries with it a presumption of regularity" even as stated for federal courts in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. Where there is some showing of affirmative waiver, the burden of proof rests on the petitioner to establish that he did not competently and intelligently waive his constitutional right to the assistance of counsel, and that he must during the hearing on habeas corpus meet the burden and convince the court by a preponderance of the evidence that he did not properly waive his right to counsel. Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70; Johnson v. Zerbst, supra; Panagos v. United States, 324 F.2d 764 (10th Cir.); Moore v. Michigan, 355 U.S. 155, 78 S.Ct. 191, 2 L.Ed.2d 167.

The appellant in his brief strongly urges that the decision of the United States Supreme Court in Gideon v. Wain-wright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, should be here directly applied and thereby given retroactive effect. We do not however reach this question for the reason that our examination of the record indicates that there is adequate evidence to support the trial court...