Cable v. State
| Decision Date | 03 July 1969 |
| Docket Number | No. 41319,41319 |
| Parties | Richard M. CABLE, Appellant, v. STATE of Minnesota, Respondent. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
In postconviction proceedings, the defendant has the burden of establishing by a fair preponderance of the evidence that he has been denied a protection guaranteed by the Bill of Rights or that he has been denied fair treatment amounting to a violation of fundamental rights of due process. The burden is not met by a bald assertion of error or a 'colorable allegation' of prejudice in the proceedings by which he was convicted.
C. Paul Jones, Public Defender, Robert E. Oliphant, Asst. Public Defender, Minneapolis, for appellant.
Douglas M. Head, Atty. Gen., Richard H. Kyle, Sol. Gen., St. Paul, J. Jerome Kluck, County Atty., Jack A. Mitchell, Asst. County Atty., Hastings, for respondent.
Heard before NELSON, MURPHY, OTIS, SHERAN, and FRANK T. GALLAGHER, JJ.
This is an appeal from an order of the District Court of Dakota County denying defendant's application for postconviction relief. The postconviction hearing was held pursuant to our decision in State ex rel. Cable v. Tahash, 277 Minn. 503, 152 N.W.2d 308. Defendant contends that, upon arraignment for felony violations in 1954, he entered pleas of guilty without benefit of counsel and without being fully informed as to the nature and elements of the offenses with which he was charged, as a consequence of which he was denied basic constitutional rights.
From the record it appears that on April 23, 1954, defendant was taken into custody for the alleged offense of grand larceny in the second degree. While being held for prosecution, he escaped from the county jail, and before he was apprehended committed two additional crimes of burglary in the third degree and larceny in the second degree. He was rearrested on June 5, 1954, and on June 17, 1954, entered a plea of guilty in the District Court of Dakota County to a charge of burglary in the third degree (Minn.St.1961, § 621.10). On the same day he entered a plea of guilty to informations charging him with escape (Minn.St.1961, § 613.29) and two charges of grand larceny in the second degree (Minn.St.1961, § 622.06). He was sentenced to an indeterminate term of up to 7 years for the offense of escape and an indeterminate term with a maximum of 5 years for each of the other offenses. The court provided that all sentences were to run concurrently.
It next appears from the record that on December 14, 1954, defendant was sentenced to an indeterminate term of from 0 to a maximum of 10 years for grand larceny in the first degree (Minn.St.1961, § 622.05) by the District Court of Stearns County, a condition of the sentence being that it would run consecutively with the sentences imposed by the Dakota County District Court.
Defendant, apparently on parole, next appeared in the Stearns County District Court on February 23, 1957, where he was again sentenced to an indeterminate term with a maximum of 10 years for burglary in the third degree. That sentence provided that it was to run consecutively with the sentences imposed June 17 and December 14, 1954. It appears that this sentence was imposed pursuant to Minn.St. 1961, § 610.28, and comprehended an increased penalty because of prior convictions. It seems to be agreed that in the Stearns County proceedings defendant was represented by counsel. It is also agreed that defendant is now on parole which will expire in 1972.
In considering defendant's claim that he was denied due process at the time of the arraignment and entry of pleas of guilty on June 17, 1954, it is necessary that we examine the record with reference to those proceedings. From the transcript it appears that when defendant was first arraigned on one of the charges of grand larceny in the second degree he appeared without a lawyer. The court told defendant:
'Q. Under the law I am required to inform you that you are entitled to have the court appoint a lawyer, if you wish to have a lawyer appear for you, free of charge to you. Do you wish to have a lawyer appear for you?
The court then explained to defendant that he was charged with grand larceny in the second degree and that the law provided punishment of not more than 5 years in prison or a fine of not more than $500. The court then read the charge as contained in the information to him. Defendant entered a plea of guilty and, on examination by the county attorney, gave the court the usual information with reference to family background, employment record, and the circumstances of the offense. In connection with the charge of burglary and a second charge of grand larceny in the second degree, the same procedures were followed, defendant declining the services of an attorney and telling the court of the circumstances of the offenses with which he was charged. When the information was presented with reference to the offense of escape from the county jail, defendant again declined the services of an attorney, and, in explaining the circumstances of the offense with which he was charged, he related the ruse which he and two other inmates used to effect their escape from the jail. He also told of what they did after the escape.
In examining the record as it relates to errors asserted by defendant, it should be noted at the outset that it is not contended that Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733, has any particular application to this case since the services of an attorney were always available to defendant. It seems that the precise errors alleged are that the trial court, in 1954, failed to observe present-day standards in receiving pleas of guilty. It would seem that the Dakota County District Court did not stress the fact that defendant was waiving his right to trial by jury nor the precise measure of punishment which the law provided for the offenses other than larceny in the second degree. In State v. Jones, 267 Minn. 421, 427, 127 N.W.2d 153, 157 (1964), we said:
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...facts which, if proven, would entitle him to relief. See, e.g., State v. Kelly, 535 N.W.2d 345, 347 (1995); Cable v. State, 169 N.W.2d 391, 394, 284 Minn. 89, 94 (1969). But Spann's petitions contain only argumentative assertions without factual support. See, e.g., Hale v. State, 566 N.W.2d......
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...to establish such facts by a fair preponderance of the evidence.' State ex rel. Gray v. Tahash, 279 Minn. 248, 156 N.W.2d 228; State v. Cable, Minn. 169 N.W.2d 391, filed July 3, 1969. In postconviction proceedings there must be a real basis for the examination of witnesses, and the examina......
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...of establishing that his plea was not voluntary. State ex rel. Dinneen v. Tahash, 272 Minn. 7, 136 N.W.2d 847 (1965); Cable v. State, 284 Minn. 89, 169 N.W.2d 391 (1969); Swanson v. State, 284 Minn. 66, 169 N.W.2d 32 (1969); State ex rel. Gray v. Tahash, 279 Minn. 248, 156 N.W.2d 228 (1968)......
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