Case v. State

• Decision Date: 19 June 1964
• Docket Number: No. 35637,35637
• Citation: 177 Neb. 404,129 N.W.2d 107
• Parties: Paul V. CASE, Appellant, v. STATE of Nebraska, Appellee.
• Court: Nebraska Supreme Court

Page 107

129 N.W.2d 107

177 Neb. 404

Paul V. CASE, Appellant, v. STATE of Nebraska, Appellee.

No. 35637.

Supreme Court of Nebraska.

June 19, 1964.

See 85 S.Ct. 672.

Syllabus by the Court

1. A provision of the Bill of Rights of the Constitution of the United States which is fundamental and essential to a fair trial is made obligatory upon the states by the Fourteenth Amendment; the Sixth Amendment's guaranty of counsel is one of these fundamental rights.

2. The due process clause of the Fourteenth Amendment to the Constitution of the United States guarantees the assistance of counsel, unless that right is intelligently and understandingly waived by the accused.

3. Courts must indulge every reasonable presumption against a waiver of fundamental constitutional rights, and do not presume acquiescence in their loss.

4. Where the constitutional infirmity of a state criminal trial without counsel is manifested, and there is no allegation or showing of affirmative waiver of counsel, a resulting conviction is unconstitutional and the accused is entitled to relief therefrom.

5. A plea of guilty must be freely and understandingly made by one competent to know the consequences thereof.

6. The sufficiency of the statements of the petition of relator to justify a writ of habeas corpus allowed by virtue thereof may be tested before making return thereto by a motion to quash the writ.

7. The remedy of habeas corpus is not demandable of course, but legal cause must be shown to entitle a petitioner to the benefit of it.

8. Habeas corpus is not available to discharge a prisoner from a sentence of penal servitude if the court imposing it had jurisdiction of the offense and of the person charged with the crime, and the sentence was within the power of the court.

9. It is for the Supreme Court of this state to decide what issues are justiciable in an application for a writ of habeas corpus made to the courts of this state.

10. The Supreme Court of this state has the undoubted right to decide upon its own jurisdiction and the jurisdiction of the courts of this state to which its appellate power extends.

11. Habeas corpus cannot be used as a substitute for a writ of error.

12. Habeas corpus is a collateral and not a direct proceeding when regarded as a means of attack upon a judgment sentencing a defendant.

13. When the judgment is regular upon its face and was given in an action where the court had jurisdiction of the offense and of the person of the defendant, extrinsic evidence is not admissible to show its invalidity.

14. The existence of a right is one matter, the availability of a particular remedy in which that right may be asserted is distinctly a separate matter.

Paul V. Case, pro se.

Clarence A. H. Meyer, Atty. Gen., C. C. Sheldon, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

BROWER, Justice.

Paul Vernon Case, hereinafter referred to as the petitioner, instituted this habeas corpus action in the district court for Lancaster County, Nebraska, on September 9, 1963. At the time of filing his petition he was confined in the Nebraska Penal and Correctional Complex at Lincoln, Nebraska, hereafter referred to as the complex. The object of the petition is to have a writ of habeas corpus to determine whether he is being unlawfully confined therein.

On September 12, 1963, the district court found that the petition failed to state a cause of action requiring the issuance of the writ, denied the relief requested, and dismissed the petition. From this order the petitioner has perfected an appeal to this court.

The petition alleged he was held incommunicado in solitary confinement in an overheated portion of the city jail for 3 days without proper food or bedding; was repeatedly 'herded' into a police lineup; and at the end of such time was 'fast talked' and coerced by the chief deputy prosecutor to waive his constitutional rights to preliminary hearing and counsel and to plead guilty under threat of prosecution under the habitual criminal act.

The petition had attached thereto certified copies of the information filed against the petitioner on April 18, 1963, in the district court for Lancaster County, charging him with the crime of burglary. Certified copies of journals of the court were likewise appended. The first showed that he appeared in court on April 18, 1963, and 'after waiving his constitutional rights,' he was 'duly arraigned on the information filed against him * * * and said information having been read to him,' he pleaded 'Guilty.' The plea was accepted by the court and he was found guilty as charged. His custody was remanded to the sheriff and sentence was deferred pending a presentence investigation. The second journal entry shows petitioner was brought into court on May 2, 1963, and having nothing to say prior to his being sentenced, the judgment of the court was that he be confined in the Nebraska Penal and Correctional Complex for 5 years, said sentence to run consecutively with the present term being served by him. A certified copy of the commitment to the complex was attached.

Petitioner assigns error to the trial court: In failing to assign counsel to advise petitioner as to his state and federal constitutional rights; in allowing petitioner to waive his rights under the Sixth Amendment to the Constitution of the United States made binding upon the states by the due process clause of the Fourteenth Amendment thereto; and in allowing him to enter a plea of guilty without benefit of counsel. In his brief he admits waiving in the trial court his constitutional rights to preliminary hearing and counsel and entering a plea of guilty but again alleges his acts in that respect were coerced as alleged in his petition.

The petitioner relies on recent decisions of the United States Supreme Court and he particularly cites Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 92 A.L.R.2d 733, which overruled Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595. The Betts case was an appeal from the decision of the Court of Appeals of Maryland in an original habeas corpus proceeding instituted in that court after Betts' conviction and while serving his sentence. The writ was issued; a hearing was had; his contention was rejected; and he was remanded to the custody of the prison warden. Betts had been indicted for robbery in the original trial court in Maryland. He told the trial judge that for lack of funds he was unable to hire a lawyer and asked the trial court to appoint counsel for him. The judge informed him that it was not the practice in that county to appoint counsel for indigent defendants except in murder and rape cases. The United States Supreme Court, in a divided opinion after reviewing the law as it existed in the several states at and before the adoption of the federal Constitution, held that the due process clause of the Fourteenth Amendment to the Constitution of the United States does not confer on an indigent person charged with a crime in a state court an absolute right to counsel independent of circumstances, and affirmed the judgment of the Maryland court. The decision turned to some extent on Betts being a mature person of ordinary intelligence and ability to take care of his own interests on a narrow issue involving the credence to be placed on his claim of an alibi.

The facts in the case of Gideon v. Wainwright, supra, may be summarized as follows: In defendant's trial in a Florida state court on a charge of a felony--having broken and entered a poolroom with intent to commit a misdemeanor--the trial court denied defendant's request to appoint counsel for him on the ground that under the laws of Florida only a defendant charged with a capital offense was entitled to such an appointment. After his conviction defendant filed in the Supreme Court of Florida a petition in habeas corpus. He attacked the conviction on the ground that his federal constitutional rights were violated by the trial court's refusal to appoint counsel. The court, without opinion, denied relief. The Supreme Court of the United States in that case in overruling Betts v. Brady, supra, held: A provision of the Bill of Rights of the Constitution of the United States which is fundamental and essential to a fair trial is made obligatory upon the states by the Fourteenth Amendment; the Sixth Amendment's guaranty of counsel is one of these fundamental rights. It held in such a case the refusal of a state trial court to appoint counsel for one prosecuted for a felony violates the Sixth Amendment's guaranty of counsel made obligatory upon the states by the due process clause of the Fourteenth Amendment.

Both before and after Betts v. Brady, supra, the Supreme Court of the United States had held that under certain circumstances the due process clause of the Fourteenth Amendment required that counsel be provided a prisoner. It was often applied to those accused of capital offenses. See, Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527; Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377; Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114. The same rule was applied to cases which that court held involved 'special circumstances' such as where conviction occurred under the influence of mob spirit, Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969; or under alleged community coercion, Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543; or where perjured testimony was knowingly used by a state prosecutor, Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406. However, it was not until the recent case of Gideon v. Wainwright, supra, here considered, that the full impact of the Sixth Amendment was applied through the due process clause of the Fourteenth Amendment to all felony cases.

The present requirements in regard to furnishing...