Berryhill v. Page, 8147.

• Decision Date: 26 August 1965
• Docket Number: No. 8147.,8147.
• Parties: James BERRYHILL, Appellant, v. Ray H. PAGE, Warden, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

349 F.2d 984 (1965)

James BERRYHILL, Appellant, v. Ray H. PAGE, Warden, Appellee.

No. 8147.

United States Court of Appeals Tenth Circuit.

August 26, 1965.

Michael C. Villano, Denver, Colo., for appellant.

Jack A. Swidensky, Asst. Atty. Gen., (Charles Nesbitt, Atty. Gen., on the brief), for appellee.

Before PHILLIPS, HILL and SETH, Circuit Judges.

DELMAS C. HILL, Circuit Judge.

Appellant is an inmate of the Oklahoma State Penitentiary serving a life sentence imposed after a plea of guilty for the crime of murder. His appeal is from an order, entered in the United States District Court for the Eastern District of Oklahoma, after an evidentiary hearing, denying his petition for a writ of habeas corpus. He has exhausted his remedies in the state courts.¹

From the record, these facts appear to be without dispute: That sometime prior to January 30, 1940, petitioner shot and killed a man in Atoka County, Oklahoma, and fled to Phoenix, Arizona, where he was apprehended; he was returned to Atoka County on January 30 to face the charge of murder in the first degree; on February 1 he was taken before the County Court of Atoka County without counsel and arraigned, the minutes of that court showing that he waived a preliminary hearing, entered a plea of guilty and was bound over to the district court; on the same day, he was taken before the district court, arraigned, entered a plea of guilty, was sentenced to a life term of imprisonment² and committed to the state penitentiary.

Undisputed testimony in the record also shows that Berryhill, at the time he was sentenced, was about forty years of age, could not read and was able to write only his own name. A letter from the lawyer, who was the prosecuting attorney in the case, written in 1951 to the State Pardon and Parole Board about Berryhill, and which was an exhibit in the trial court, reflects other pertinent information about the case, particularly that Berryhill had a possible defense to the charge.³

Appellant contends that he was denied his right to counsel under the Sixth Amendment and was not accorded due process as guaranteed by the Fourteenth Amendment. Appellee, in its brief and argument, does not deny that appellant had a constitutional right to the assistance of counsel, but argues that the record shows that he "competently and intelligently waived" that right. The trial court found from the herein stated facts that Berryhill "was offered counsel, knowingly entered a plea of guilty, and was aware of what was transpiring, and was aware of court procedure. None of the alleged constitutional rights of Petitioner were violated."

Before Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, the federal constitutional right to counsel did not extend to persons accused in the state courts. By that decision a person accused in state court of a capital offense who was unable to employ counsel and who was incapable "of making his own defense because of ignorance, feeble-mindedness, illiteracy, or the like" became entitled, as a constitutional right to due process, to be represented by counsel. In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, the right of an accused to counsel in a state court, whether the offense charged is capital or non-capital, became the law of the land. The Court reasoned that the right to counsel is essential to a fair trial and that the Sixth Amendment became applicable to state criminal trials under the "due process" clause of the Fourteenth Amendment. Cases preceding Gideon clearly foreshadowed such a decision.⁴ The right to counsel in state prosecutions as enunciated in Gideon must be applied retrospectively. Doughty v. Maxwell, 372 U.S. 781, 83 S.Ct. 1106, 10 L.Ed.2d 139 and 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650; United States ex rel. Durocher v. LaVallee, 2 Cir., 330 F.2d 303, cert. denied, 377 U.S. 998, 84 S.Ct. 1921, 12 L.Ed.2d 1048 (1964); Palumbo v. State of New Jersey, 3 Cir., 334 F.2d 524; United States ex rel. Craig v. Myers, supra, note 4. A plea of guilty cannot constitute a conclusive presumption of a waiver of the right to counsel. Rice v. Olson, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367. Where the assistance of counsel is a constitutional prerequisite, such right is not dependent upon a request for counsel by the accused. Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 8 L.Ed.2d 70. When an accused in a capital case is required to plead to the charge, he is entitled, as a matter of federal constitutional law, to the benefit of counsel. Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114. In order to effectuate a waiver of the right to counsel, the record must plainly show that the accused was offered the assistance of counsel but intelligently and understandingly rejected the offer. Carnley v. Cochran, supra.

To us, this is a clear case of deprivation of a man's constitutional right to counsel. This illiterate man was compelled to stand before the bar of justice, charged with the crime of murder, a capital offense, and to plead to that charge. The record before us does not show that the trial judge even explained to the accused the nature of the charge or the possible sentencing consequence of a plea of guilty. Neither does the record reflect an understanding offer on the part of the trial judge to appoint counsel or an intelligent and understanding rejection of an offer to appoint counsel on the part of the accused. In addition, the lawyer, who was the prosecuting attorney in the case, has admitted on the record, by letter, that the accused may have had a defense to the charge. Also, under Oklahoma law, the charge of murder in the first degree embodies lesser degrees of murder and an examination, by a competent appointed counsel of the facts of the killing, may very well have revealed that Berryhill was either guilty of a lesser degree of murder than that charged or that he had a complete defense to the charge. This is clearly indicated by the prosecuting attorney's letter to the Pardon and Parole Board. The Court in Tomkins v. State of Missouri, 323 U.S. 485, 489, 65 S.Ct. 370, 372, 89 L.Ed. 407, well stated the inherent danger to this accused under the facts disclosed by this record as follows: "The...