Argo v. State, 6 Div. 219

• Decision Date: 17 January 1967
• Docket Number: 6 Div. 219
• Citation: 195 So.2d 901,43 Ala.App. 564
• Parties: Jessie Garvin ARGO v. STATE.
• Court: Alabama Court of Appeals

Page 901

195 So.2d 901

43 Ala.App. 564

Jessie Garvin ARGO v. STATE.

6 Div. 219.

Court of Appeals of Alabama.

Jan. 17, 1967.

Rehearing Denied Feb. 14, 1967.

Jessie Garvin Argo, pro se.

Richmond M. Flowers, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for the State.

CATES, Judge.

This appeal from denial of coram nobis came on for submission December 8, 1966.

I.

Appellant, who has filed his own brief, states the case to us as follows:

'At the 1960, July Term of the Circuit Court of Jefferson County, Alabama Birmingham Division, the Grand Jury returned four indictments against appellant, each charging * * * robbery, * * *

'On September 19, 1960, appellant entered pleas of guilty to assault with intent to rob in each case, and was sentenced to a term of six years in each case.

'On July 16, 1964, appellant filed a petition in the sentencing court for a writ of error coram nobis, wherein he alleged that he was not represented by counsel at the time he was arraigned upon the indictments * * * and contended that in view of the fact that the court required him to plead to the merits of the charges In the absence of counsel, without the aid and/or representation of counsel, such violated his statutory and constitutional right to counsel, a fair trial, equal protection and due process of law, and that the convictions and sentences are due to be set aside and vacated under the authority of Hamilton v. (State of) Alabama, 368 U.S. 52 (82 S.Ct. 157, 7 L.Ed.2d 114).

'On November 24, 1965, the State of Alabama, by and through its Circuit Solicitor, filed a motion to dismiss appellant's petition for error coram nobis.

'On December 3, 1965, the trial court commenced to hold a hearing on appellant's petition and the state's motion; the hearing being continued from time to time until April 15, 1966, at which time the court took the matter under advisement.

'On May 19, 1966, the trial court * * * (after a hearing) dismissed the petition for error coram nobis.'

The State's brief contains the following as part of the Statement of facts:

'The appellant's testimony in substance is that when counsel was appointed * * * it was not until after arraignment, and that the attorneys did not have time to confer with him prior to arraignment on September 9, 1960, but that he did talk to his attorneys on the day after arraignment. The appellant does state that he did understand that he would receive a six (6) year sentence in each case, after one-half day's negotiation, and would receive a total of twenty-four (24) years in the four cases, * * *

'Thereafter the State * * * called the * * * (four court appointed counsel), each of whom testified that in his best judgment that they were present in open court at the time of arraignment of the appellant on September 9, 1960, and did confer with the appellant briefly before entering pleas of not guilty in behalf of the appellant at arraignment * * *. (Also they conferred) together and separately with the appellant, and upon further consulting with the District Attorney about working out an agreement, which the appellant agreed to, to withdraw his not guilty plea in each case and enter pleas of guilty based on the settlement ¹ of six (6) years in each of the four cases.

'The appellant was then recalled and denied having counsel at arraignment.'

II.

We have carefully scrutinized the record and viva voce evidence.

The minutes of the sentencing court following the 'docket sheets' or bench notes do not specify the time of the day when Argo was first furnished counsel. Likewise, the hour of arraignment on September 9, 1960, is not recorded.

Circuit Court Docket No. 45978 shows a typical docket sheet entry:

'Sept. 9, 1960--The defendant being in open Court and having been duly arraigned pleads not guilty. Case set for trial Sep. 19, 1960. King, Judge. Recorded #1 Minute Bk. Vol. 179 Pg. 260.

9--9--60--It appearing to the Court that the defendant is without counsel and unable to employ counsel. Hon. Robert Lewis is hereby appointed to represent him in this case. King, Judge. Recorded #1 Minute Bk. Vol. 179 Pg. 260.

Sep. 19, 1960--Ready--Defendant withdraws his plea of not guilty heretofore entered in this cause, waives a jury trial and pleads guilty to assault with intent to rob as charged, and punishment fixed at 6 years, imprisonment in the penitentiary, recommendation, Dep. Sol. McCall. King, Judge.

9--9--60--The defendant upon being asked by the Court if he had anything to say as to why sentence should not be imposed upon him answered 'No sir.' Judgment and sentence that the defendant be imprisoned in the penitentiary for a term of 6 years. King, Judge. Recorded #1 Minute Bk. Vol. 179 Pg. 384.'

Coram nobis admits of proof of matters of fact not appearing of record. In Ex parte Hamilton, 271 Ala. 88, 122 So.2d 602, it was held that coram nobis was the remedy to attack lack of counsel at arraignment. The opinion states in part:

'* * * Hamilton was not represented by counsel at the time he was arraigned on the indictment on which he was subsequently tried and convicted. We are not here controlled by the minute and judgment entries, as was the situation on appeal from the judgment of conviction. * * *'

That opinion went on to hold that though error was made to appear, it was nevertheless without injury. It was this reasoning which the Supreme Court of the United States rejected in Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114.

In the instant record one court appointed lawyer, refreshing his recollection both from notes and from the practice observed in the trial court, testified ² that Argo was first appointed counsel and then arraigned. He could not recall whether Argo wanted to plead insanity.

Another of Argo's four attorneys testified that in his best judgment the court first appointed him 'then the plea (of not guilty to robbery) was given.'

The testimony of one lawyer went:

'Q Do you have a specific recollection as to whether or not you were appointed prior to arraignment?

'A I do not know that.'

However, on cross we find:

'Q (BY MR. PENNINGTON:) Mr. Nice, you say you don't recall with reference to the time of your appointment?

'A No, as to whether it was preceding or whether it was just after the arraignment, I don't have any independent recollection.

'Q Is it your recollection that it was on the day of the entry of the plea of not guilty of this defendant?

'A My best judgment is that it was prior to the plea of not guilty.

'Q But, you did not talk to to him before his entry of his original plea on the day of arraignment?

'A No, but my best judgment is that I was appointed and then the plea was given.

'Q Within a matter of just in the same proceeding? I mean, during the same court session that morning.

'A Correct, yes.

'Q * * * Were the pleas which were entered later after you talked to Mr. Argo discussed with him and with the other attorneys?

'A Yes.

'Q Prior to the day of the trial?

'A Yes.

'Q And was that the extent of your participation in the preparation of the trial of the case, by discussing it in company with him and the other lawyers?

'MR. BATCHELER: I object to that, Judge, as to what preparation he made for this trial.

'THE COURT: Overrule.

'A Well, as to the extent of the case, I talked to the defendant. I talked to, as I recall, my best judgment, to the prosecuting witness. I discussed the case with the other attorneys. We all discussed it together and the plea was then made.

'Q Well, the question I am asking is was the pleas that were entered upon which he was sentenced later decided upon by all of you in concert?

'A We discussed it but decided it individually.

'Q But, it was proposed by someone?

'A We all discussed it, what we could work out, what kind of arrangement we could work out.

'Q It was more or less of a collective decision by all of you?

'A And the solicitor seeing what arrangement he could make with all of the cases.

'Q Yes, sir.

'A And with Mr. Argo's agreement and his understanding.

'Q I believe you did say that you didn't confer with the defendant on arraignment day, the day he was arraigned?

'A I don't have any independent recollection of discussing it with him prior to his plea at arraignment.'

We excerpt from the court's questioning another of Argo's counsel:

'THE COURT: Let me see if I understand something about this, Mr. Seay. Is there any question in your mind about whether or not this man ever objected to pleading guilty after you conferred with him and prior to the time he got six years in this case; was that done as a result of a conference between you and him, or was that just him saying don't plead me guilty?

'A No, Judge. He was very enthusiastic about it, that is my idea about it. Not that he wanted the plea of guilty, but he thought that it was better than taking his chances at a trial. That is the impression I got at the time.

'THE COURT: You say, not that he wanted the plea of guilty?

'A I don't mean that. I mean, I got the impression that Mr. Argo felt that the chances of a conviction and a higher sentence was probable and that he was bargaining with the solicitor's office. He wanted this at the time it was finally entered.

'THE COURT: All right.

'A By way of explanation, he gave me some names of the witnesses, character witnesses and I failed to get any response at all. Nothing that would help--'

The fourth lawyer testified that he was appointed and then Argo was arraigned with counsel present. On cross-examination the question of closing off a plea of not guilty by reason of insanity was gone into as follows:

'Q Well, didn't you say that when you enter a not guilty plea--Well, you say you don't know whether you advised him to enter a not guilty plea or not, was that your testimony?

'A No. I said that I would have entered the plea myself, and as I recall I entered the plea myself.

'Q Did you request leave to change or amend it?

'A Whether I did in this specific case or not, I cannot recall,...