Application of Stone

• Decision Date: 25 September 1969
• Docket Number: Cr. 382
• Citation: 171 N.W.2d 119
• Parties: Application of Ernest Edwin STONE for a Writ of Habeas Corpus. Ernest Edwin STONE, Petitioner, v. STATE of North Dakota, and J. D. Woodley, Warden of the State Penitentiary, Bismarck, North Dakota, Respondents.
• Court: North Dakota Supreme Court

Page 119

171 N.W.2d 119

Application of Ernest Edwin STONE for a Writ of Habeas Corpus Ernest Edwin STONE, Petitioner, v. STATE of North Dakota, and J. D. Woodley, Warden of the State Penitentiary, Bismarck, North Dakota Respondents.

Cr. 382.

Supreme Court of North Dakota.

Sept. 25, 1969.

Syllabus by the Court

1. Where a petitioner alleges in his application for a writ of habeas corpus that he has been restrained of his liberty in violation of his constitutional rights, this court will review the allegations to determine whether the same are true and thus entitle him to his release.

2. A waiver of counsel by a defendant in a criminal action is effective when it is freely and voluntarily made.

3. Where the defendant was 39 years of age, had an eighth-grade education, had been married, was a cook by profession, was afforded opportunity at the preliminary hearing and at the arraignment to secure counsel, had ample time to secure counsel, which was waived, and the pleas of guilty were not precipitated by inducement, threats, or coercion, such pleas were freely and voluntarily made.

4. Where the court in 1964, and before the decision in Miranda v. Arizona (1966), and before the arraignment, advised the accused that the crime with which he is charged is punishable by imprisonment in the State Penitentiary, that he is entitled to a jury trial, that he is entitled at all stages of the proceedings to the advice of a lawyer whom the court would provide if the defendant were without funds, and the defendant informed the court that he did not desire a lawyer and waived a jury trial, he intelligently and understandingly waived his rights under the United States Constitution, under § 13 of the North Dakota Constitution, and under § 29--13--03 of the North Dakota Century Code.

5. For reasons stated in the opinion, it is held that the petitioner's pleas of guilty and waiver of right to counsel in this case were freely and understandingly and intelligently made.

Huseby & Backes, Fargo, and Dosland, Dosland & Nordhougen, Moorhead, Minn., for petitioner.

Helgi Johanneson, Atty. Gen., and John E. Adams, Asst. Atty. Gen., Bismarck, for respondents.

PAULSON, Judge.

Ernest Edwin Stone, on September 8, 1964, pleaded guilty to the charges of the crimes of rape in the first degree and of assault with deadly weapon with intent to kill. Thereafter he was sentenced to the State Penitentiary by the Honorable Eugene A. Burdick, Judge of the District Court of McKenzie County, North Dakota. Stone has been incarcerated since that time.

On February 18, 1969, Stone secured a writ of habeas corpus from the District Court of Burleigh County and, on February 24, 1969, that court held a hearing, after which it issued its order quashing the writ. There is no provision under our law for appeal from this decision. Accordingly, pursuant to § 87 of the North Dakota Constitution, the petitioner has now filed an application for a writ of habeas corpus with this court, praying for his release. We issued the writ and the hearing on the return was held on June 25, 1969, before this court.

Formerly, the primary and only question involved in habeas corpus proceedings was one of jurisdiction--namely, whether the particular order, judgment, or process the validity of which was attacked came within the lawful authority of the court or officer making or issuing it. 39 Am.Jur.2d, Habeas Corpus § 28; 39 C.J.S. Habeas Corpus § 16. Section 32--22--17 of the Morth Dakota Century Code sets forth the statutory grounds for the discharge of persons restrained and who are entitled to relief under the North Dakota Habeas Corpus Act.

The writ of habeas corpus cannot ordinarily be used to correct mere errors or irregularities in the proceedings of a trial court which are not jurisdictional and which, at the most, render a judgment voidable. However, a judgment may be void and thereby subject to attack on habeas corpus for certain extreme irregularities other than lack of jurisdiction of the offense and of the person, as where fundamental constitutional rights have been violated during the course of the proceedings leading to conviction. 39 Am.Jur.2d, Habeas Corpus § 30; 39 C.J.S. Habeas Corpus § 15. This court, in Fournier v. Roed, 161 N.W.2d 458 (N.D.1968), discusses the expansion of the writ of habeas corpus, in paragraph 1 of the syllabus:

'In light of the law of the writ of habeas corpus as it has developed, when a petitioner alleges in his application for a writ of habeas corpus that he has been restrained of his liberty in violation of the Constitution or the laws or the treaties of the United States, this court will review that allegation on a writ of habeas corpus in order to determine whether the petitioner is being restrained in violation of fundamental law, entitling him to his release.'

In the present case, Stone alleges that he is being restrained in violation of his constitutional rights and, therefore, a review of Stone's contentions is proper in this habeas corpus proceeding.

Stone asserts that the conviction, judgment, sentence, and commitment are defective and void, within the purview of § 32--22--17(3), N.D.C.C., for the following reasons:

1. Defendant was allowed to plead guilty when not represented by counsel. in violation of his constitutional rights.

2. He was allowed to plead guilty after a waiver of counsel, which waiver was ill-formed and not intelligently made, and such fact became known to the trial court during the proceedings and, notwithstanding such knowledge, the trial court accepted the plea of guilty.

3. That at the time of such plea and hearing the defendant made statements to the court, which statements are of record and which statements are inconsistent with a plea of guilty, a fact known to the trial court, and, in spite of such knowledge, the trial court allowed the plea to stand.

4. Evidence was admitted by the trial court while defendant was not represented by counsel, which evidence is specifically prohibited by North Dakota statute, and, further, which evidence was not consistent with the plea of guilty made by this defendant, and, in spite of this knowledge, the trial court allowed and accepted the plea of guilty.

This brings us to the petitioner's major argument in this habeas corpus proceeding. Stone urges, basically, that his waiver of his right to have assistance of counsel, at the time he pleaded guilty to both crimes as charged, was not made in an intelligent and understanding manner, and, because of this ineffective waiver, he was allowed to plead guilty without counsel, which was a violation of his constitutional rights.

Prior to discussing this issue, we are required to determine first whether the plea of guilty entered by the petitioner was made freely and voluntarily. If the plea were not entered of the petitioner's own free will, it would not be necessary to consider the question of whether or not the petitioner made an effective waiver of his right to counsel.

A plea of guilty made by an accused must be free and voluntary. The court, in State v. Layer, 48 N.D. 366, 184 N.W. 666, 671 (1921), discusses this question thoroughly:

'It is true, * * * that under the Constitution, one charged with crime is entitled to a trial by the jury, that he is presumed innocent until proven guilty, and that the state must prove him guilty beyond a reasonable doubt. It is likewise true that the defendant is the only person who can waive such rights. It is the law, however, in this state that the defendant has the right to waive, and the state to receive such waiver on the defendant's plea of guilty, and that upon such plea he may lawfully be convicted and imprisoned. It is likewise true that such waiver of such privilege must be a voluntary one, and free from all duress, fear, intimidation, and coercion; that is, he must not be induced or compelled to make his plea of guilty by reason of threats, or in any way forced to do so. In other words, his plea must be free and voluntary.'

This rule of law was reemphasized in State v. Malnourie, 67 N.W.2d 330, 331 (N.D.1954), in the syllabus:

'A plea of guilty induced by coercion will not support a judgment of conviction. Such a conviction violates the due process clause of the Constitution of the United States and should be vacated upon a proper motion.'

In the Layer case, the court determined that the defendant failed to prove that there was any inducement or coercion which precipitated his plea of guilty. In the Malnourie case, the court reversed the conviction because the plea was not voluntary. In the case at bar, it is necessary to carefully consider the record which resulted in Stone's pleas of guilty in order to determine whether or not such pleas were voluntary.

Mr. Stone, on July 21, 1964, was invited to the Fisher home by Mrs. Fisher, a co-employee of his who also worked at Jamie's Cafe in Williston, North Dakota. Prior to going to the Fisher home, Stone had consumed several drinks of alcoholic beverages. Upon his arrival at the Fisher home, at about 11:30 p.m., Mrs. Fisher introduced Stone to her husband. The three of them sat in the Fisher living room drinking beer until the early hours of the morning of the 22nd. After they had consumed about a case of beer, Fisher became angry with his wife for exhibiting an interest in Stone. Mrs. Fisher, upon this development, then left the Fisher home in one of the family automobiles. Shortly thereafter, Stone called a taxicab in order to search for Mrs. Fisher. Failing to find her, he returned to the Fisher home, at which time he and Mr. Fisher decided to search together for Mrs. Fisher. It was then approximately 6 a.m. on the 22nd of July and Mr. Fisher, not wanting to leave his three children home alone, awakened them and dressed them. All of them then entered Fisher's car and rode around the city of Williston, looking for Mrs. Fisher. Being unable to find her in Williston, they decided to drive to Sidney,...