Bouldin v. Cox

• Decision Date: 21 March 1966
• Docket Number: No. 7652,7652
• Citation: 412 P.2d 392,76 N.M. 93,1966 NMSC 48
• Parties: Novel Ponta BOULDIN, Appellee, v. Harold COX, Wareden of the Penitentiary of New Mexico, Appellant.
• Court: New Mexico Supreme Court

Page 392

412 P.2d 392

76 N.M. 93

Novel Ponta BOULDIN, Appellee, v. Harold COX, Wareden of the Penitentiary of New Mexico,

Appellant.

No. 7652.

Supreme Court of New Mexico.

March 21, 1966.

Earl E. Hartley, Atty. Gen., Wayne C. Wolf, Asst. Atty. Gen., Santa Fe, for appellant.

Florenceruth J. Brown, Santa Fe, for appellee.

J. NORMAN HODGES, District Judge.

Appellant, warden Cox, has appealed from the decision of the district court which made permanent a writ of habeas corpus, applied for by appellee, and which released and discharged appellee from the custody of the warden.

Paragraph (b) of the Petitioner's Application for Writ of Habeas Corpus contains the only grounds set forth for the writ of habeas corpus, as follows:

'That Petitioner who is uneducated and inexperienced in legal matters, and had only attained the age of 18 years at the time of his conviction, was not represented by counsel at the time of his conviction, did not know he was entitled to be represented by counsel, and was not asked by the prosecuting attorney or the Court at any time whether he desired the assistance of counsel, all in violation of his constitutional rights.'

Without objection, the petitioner and only witness at the habeas corpus hearing, testified concerning a preliminary hearing or proceedings before the justice of the peace, as well as the proceedings before the district court of Lea County held in 1958.

The trial court, in the habeas corpus hearing, made fifteen findins of fact, several of which pertain to the proceedings in the justice of the peace court.

At the close of the habeas corpus hearing, the appellant made a motion to quash the writ of habeas corpus on the grounds:

1. That appellee was not entitled to counsel at a preliminary hearing, because it was not a critical stage of the proceedings, but, if so, he later waived his right at arraignment before the district court.

2. That the appellee intelligently waived his right to counsel at the district court arraignment.

3. That appellee did not sustain his burden of proof in obtaining a writ of habeas corpus.

Both parties submitted requested findings of fact and conclusions of law prior to entry of judgment in the habeas corpus matter.

The testimony is uncontradicted that petitioner was, at the time of arraignment before the district court in 1958, 18 years of age, had a fifth grade education and was inexperienced in criminal proceedings. He testified in the habeas corpus hearing (1964) that he did not understand his right to counsel in 1958; and, as indicated in the findings of fact, the trial court believed him.

Appellant's first point argues that the proceedings in the justice of the peace court in 1958 were not a critical stage of the proceedings and therefore appellee was not entitled to court-appointed counsel at the preliminary hearing or other proceedings before the justice of the peace. The court's finding of fact No. 7, reads as follows:

'7. That for this Petitioner the preliminary hearing was a critical stage of the proceedings leading to his conviction and a commitment to the custody of this Respondent, and lack of counsel at that time prejudiced this Petitioner and denied him due process of law.'

A review of the record does not disclose any substantial evidence showing that the preliminary hearing was a critical stage of the proceedings. There is very little substantial evidence of what occurred at the proceedings before the justice of the peace, except that the petitioner entered a plea of guilty. Actually, this issue was not within the pleadings, but to some extent was tried by implied consent. There was no evidence that the plea of guilty in the justice of the peace court was later used against him; no pressure or compulsion has been shown by reason of the prior plea of guilty, and no prejudice to the defendant is shown.

Failure to assign counsel prior to preliminary examination of an indigent defendant in a non-capital case is not a ground for vacating a conviction or sentence based on a plea of guilty, without a showing that prejudice resulted therefrom. Sanders v. Cox, 74 N.M. 524, 395 P.2d 353; Latham v. Crouse (C.A. 10, 1963) 320 F.2d 120; Lovato v. Cox (C.A. 10, 1965) 344 F.2d 916. § 21--1--1(92), N.M.S.A.1953, effective September 1, 1964, provides for appointed counsel for indigents at preliminary hearings, but prior to that time, there was no such requirement, in non-capital cases, absent a showing of prejudice.

The appellant's second point argues that the court's findings of fact numbered 5, 6 and 12 are not supported by the evidence. Appellee argues that appellant failed to attack finding No. 4 which is a logical basis for findings numbered 5 and 6. These findings read, as follows:

'4. That at all material times Petitioner was 18 years of age and had not gone beyond the fifth grade of elementary school, and did not understand the nature of his right to counsel, or of criminal proceedings.'

'5. That in consequence of his age and limited education and understanding, Petitioner did not intelligently and competently waive his right to counsel at the time of his arraignment before the Justice of the Peace Court and District Court.'

'6. That in consequence of his age and limited education and understanding, Petitioner did not intelligently and competently waive, by his action at the time of arraignment, his right to counsel at preliminary hearing.'

'12. That Petitioner was entitled to counsel at all critical stages of the proceedings leading to his conviction and commitment to the New Mexico State Penitentiary, and was not provided with counsel at arraignment before the Justice of the Peace Court, or in the District Court.'

Appellee contends that the issue of intelligent waiver of the right to counsel was strictly a factual issue which was determined by the trial court at the habeas corpus hearing; that there was substantial evidence to support the court's findings; and that this court cannot weigh conflicting testimony and substitute its judgment for that of the trial court. However, appellant moved to quash the writ of habeas corpus because appellee did not sustain his burden of proof. This motion fairly raised the question of whether appellee did prove by a preponderance of the evidence that his waiver of counsel was not understandingly and intelligently given.

Although the trial court at the habeas corpus hearing had the opportunity to observe the appellee, it should be remembersed that the trial court at arraignment also had this opportunity, when the following colloquy occurred:

'MR. LOVE: Are you represented by a lawyer, Mr. Bouldin?

DEFENDANT: No, sir.

MR. LOVE: There's been an Information filed here against you in District Court that charges you with a felony, a penitentiary offense, armed robbery. Do you understand that, if you plead guilty or are found guilty, you may be sent to the penitentiary?

DEFENDANT: Yes, sir.

THE COURT: Do you have any way of hiring a lawyer?

DEFENDANT: No, sir.

THE COURT: Do you want the Court to appoint a lawyer for you?

DEFENDANT: No, sir.

THE COURT: You do not?

DEFENDANT: No, sir.

MR. LOVE: Do you understand, if you don't have a lawyer and don't have the money to hire one, the Court will appoint a lawyer at the Court's expense, and, knowing that, you do not want a lawyer?

DEFENDANT: No, sir.

MR. LOVE: This is the Information. (The Information was read to the Defendant)

THE COURT: To that charge, how do you plead? Guilty or not guilty?

DEFENDANT: Guilty.

MR. LOVE: Mr. Bouldin, have any promises been made to you by anyone to induce you to make a plea of guilty in this case?

DEFENDANT: No, sir.

MR. LOVE: Have any threats been made against you by anyone to induce you to make a plea of guilty?

DEFENDANT: No, sir.

MR. LOVE: Is your plea free and voluntary of your own accord?

DEFENDANT: Yes, sir.

MR. LOVE: Do you have anything to say before the Judge imposes sentence upon you?

DEFENDANT: Yes.

THE COURT: Mr. Love, Judge Armijo will be here the week of April 21. I think you might as well make arrangements to try that other boy at that time. And sentence will be deferred on this until the disposition of the other case.'

Later, before Judge Armijo, the following colloquy took place:

'THE COURT: Your name is Novel Ponta Bouldin?

DEFENDANT: Yes, sir.

THE COURT: You have heretofore entered a plea of guilty to the charge, have you not?

DEFENDANT: Yes, sir.

THE COURT: Have you anything to say why the judgment and sentence of the Court should not be pronounced upon you?

DEFENDANT: No, sir.

THE COURT: Who was your attorney?

MR. LOVE: Your Honor, this man had no attorney. He was advised of his rights by Judge Brand and waived the rights to an attorney.

THE COURT: I see. He has waived the right of an attorney. Have you anything to say why the judgment and sentence of the Court should not be now pronounced upon you?

DEFENDANT: No, sir.'

The answers are responsive to the questions. Three times the defendant declined appointed counsel. Six years later he testifies he did not understand his right to counsel. Such contention should be viewed with caution.

The following statement from Sandoval v. Tinsley (10 Cir. 1964) 338 F.2d 48, involving a 19 year old boy, is particularly applicable:

'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...