Dodge v. Turner

• Decision Date: 29 September 1967
• Docket Number: No. C 77-67.,C 77-67.
• Citation: 274 F. Supp. 285
• Parties: David W. DODGE, Petitioner, v. John W. TURNER, Warden, Utah State Prison, Respondent.
• Court: U.S. District Court — District of Utah

274 F. Supp. 285

David W. DODGE, Petitioner, v. John W. TURNER, Warden, Utah State Prison, Respondent.

No. C 77-67.

United States District Court D. Utah, Central Division.

September 29, 1967.

COPYRIGHT MATERIAL OMITTED

John D. O'Connell, Salt Lake City, Utah, for petitioner.

LeRoy S. Axland, Asst. Atty. Gen., for respondent.

MEMORANDUM DECISION

CHRISTENSEN, District Judge.

The petitioner David W. Dodge is presently incarcerated in the Utah State Prison, serving concurrent sentences of one to twenty years for the crimes of forgery and second degree burglary. A petition for writ of habeas corpus and a motion to file and proceed in forma pauperis were filed in this court. Deeming an evidentiary hearing to be required in the absence of an indication that the state courts had made such constitutionally meaningful findings as would render this unnecessary within the purview of 28 U.S.C. § 2254 as amended by Public Law 89-711, 89th Congress, November 2, 1966, 80 Stat. 1104, I granted leave to proceed in forma pauperis and following a pre-trial conference took evidence at a formal hearing at which the petitioner was permitted to appear personally and testify. Transcripts of proceedings in the state cases were also received.

The petition for a writ of habeas corpus alleges in substance that the judgments by reason of which petitioner is restrained of his liberty are void as being in violation of rights guaranteed by the Fourth and Fourteenth Amendments to the Constitution of the United States and that he has exhausted his state remedies in attempting unsuccessful vindication of these rights. He states among other things:

"(a) That the judgment for Forgery was entered on a plea of guilty which was entered by your plaintiff, without his having had the benefit or representation of counsel; without knowledge of his rights and upon promises of probation made by an agent of the Utah State Adult Probation and Parole Department to your plaintiff and plaintiff's Father. Further that your plaintiff did not intelligently, competently nor understandingly waive his right to counsel. Causing the plea of guilty in the instant case to be made through misrepresentation the holding out of false hopes and other coercive methods.

"(b) That the judgment for Burglary in the Second Degree was entered upon conviction at trial wherein the evidence was submitted which had been obtained by illegal searches, such searches being made by police officers acting without probable cause or search warrants and not made incident to a constitutionally valid arrest. Further, said judgment was illegal in that the plaintiff was denied Due Process of Law and Equal Protection of the Law; in that some members of the jury panel were illegally excluded from the trial by jury by the trial judge because they failed to attain a certain score on a written test of intelligence. And Legal Aptitude."

The last stated claim relating to the jury is not pressed here and justifies no further notice.

The exhaustion of state remedies through appeal, State v. Dodge, 12 Utah 2d 293, 365 P.2d 798 (1961), and by denial of petitions for writs of habeas corpus in the Third Judicial District Court of the State of Utah, is not questioned by the state. And this is so, even though he has not challenged a 1964 conviction for forgery for which he has been ordered to serve a consecutive sentence following the expiration of the concurrent sentences. Tucker v. Peyton, 357 F.2d 115 (4th Cir. 1966). Cf. Rowe v. Peyton, 383 F.2d 709 (4th Cir. 1967). Nor should this circumstance preclude the determination of the validity of his imprisonment under the presently effective sentences. Ibid. See also United States ex rel. Watson v. Myers, 250 F. Supp. 292 (E.D.Pa.1966).

We come, therefore, to the question of whether both of the concurrent sentences which petitioner is now serving are critically infected by constitutional violations. First as to the forgery conviction:

I

In 1958 petitioner was charged with attempting to pass a forged check for $10.00 in an Ogden city store. He entered a plea of guilty to the charge and was subsequently sentenced to one to twenty years in prison. During the entire proceeding he was without the benefit of counsel. He later procured counsel and sought to withdraw the plea of guilty but his motion to this end was denied.

The essential issue is whether petitioner knowingly, intelligently and voluntarily waived his right to have appointed counsel. Petitioner makes two basic arguments: (1) That he was never informed of his right to have appointed counsel provided at state expense, and (2) that he relied upon his father's statement that a promise had been made by the probation officer that probation would be granted if he would plead guilty. Respondent insists that petitioner was informed of his right to have appointed counsel and that no promise was or could have been made by the probation officer.

I find that while petitioner was indeed informed of his right to be represented by counsel,¹ he was not advised that if he could not procure one through his own resources the court would appoint a lawyer for him. On the contrary, the evidence is clear that the defendant had tried unsuccessfully to get his father to obtain a lawyer for him because he himself had no means to obtain one, and did not understand that the court would see that he got one even though he had no money.

The question of who would pay the expense was very important since it is reasonably clear that he could not have hired an attorney himself, and his father refused to do so for him until after his plea of guilty was entered. Then it was too late to do much good, because the court declined to permit the defendant to withdraw his plea. Respondent argues that petitioner must have known what the court meant because he was 18 years old and had seen his older brother in trouble with the law before. The reasoning is not convincing. This was petitioner's first offense. He was only 18 years old and his testimony that he wanted counsel but did not understand his right to have counsel appointed for him without the payment of fees is convincing. The principle of Berryhill v. Page, 349 F.2d 984 (10th Cir. 1965), is controlling:

"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".

One cannot knowingly and understandingly waive a right he does not know he has. The state cites several authorities to indicate a more flexible standard but all of them pre-date Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). There was no valid waiver of the right to counsel. Since petitioner was not represented by counsel at the time of the entry of his plea of guilty, the foregoing conviction cannot stand.

It is unnecessary to dwell separately upon petitioner's second ground. The preponderance of the evidence does establish that petitioner relied upon a statement by his father that probation had been promised him if he would plead guilty. The fact appears to be that the probation officer's indication to the father was not so positive and was more in the nature of an expectation or prediction of what the judge might do. Yet, the fact is that the information, accurate or inaccurate, thus relayed to the defendant, was an important factor in his decision to plead guilty. The father's interpretation, accurate or inaccurate, also likely was a determinate factor in the father's decision not to provide counsel for his son prior to plea. The vital importance of the right to counsel under the circumstances thus becomes even more apparent.

II

The pre-trial order recites the following uncontroverted facts concerning the burglary proceedings and evidence considered therein:

The sequence of events surrounding the seizure of the evidence introduced in the trial for burglary was as follows: An officer of the Ogden police was dispatched to investigate a "suspicious car" parked in a residential area at about 2:30 in the morning. The officer looked the car over but did not see anything suspicious about it. He left the car and while patrolling he radioed the dispatcher for a listing on the license plate numbers. The dispatcher, mistakenly as it turned out, instructed the officer that the plates were registered to a different auto than the one the officer had observed. The officer returned to the car and searched it. He testified that he had "the thought in mind of impounding the car", and that the search was a "regular procedure on impound, to determine if there is anything of value in the car". During this search the officer found two wallets which he examined and determined to be the property of the petitioner and his co-defendant, one of whom the officer knew had been arrested for burglary. The officer then radioed the desk sergeant for permission to watch the car pending the return of the occupants. Presumably the officer had at this point given up any idea of impounding the car. He then searched the car thoroughly, including beneath the seats. Finding nothing, he took up a position in his patrol car from which he could observe the suspect car unseen. At this time he was informed by radio that the plates on the suspect car were correctly registered to that car. At about 4:00 in the morning, the petitioner and his companion were observed getting into the suspect car and driving off in a normal manner. The officer pursued and signaled the car to stop. The car stopped, and the officer searched it again, this time seizing several tools including two screwdrivers, two pairs of gloves and a pry bar. The petitioner and his companion were then placed under arrest for vagrancy and taken to the jail. The following morning, after discovery of a burglary in the neighborhood, the petitioner's companion was questioned and then both men were charged with burglary.

At the trial...