Ebersole v. State

• Citation: 91 Idaho 630,428 P.2d 947
• Decision Date: 15 June 1967
• Docket Number: No. 9868,9868
• Parties: John H. EBERSOLE, Plaintiff-Appellant, v. The STATE of Idaho, Defendant-Respondent.
• Court: United States State Supreme Court of Idaho

Page 947

428 P.2d 947

91 Idaho 630

John H. EBERSOLE, Plaintiff-Appellant, v. The STATE of Idaho, Defendant-Respondent.

No. 9868.

Supreme Court of Idaho.

June 15, 1967.

J. Dennis Faucher, Boise, for appellant.

Allan G. Shepard, Atty. Gen. and Max Eiden, Jr., Asst. Atty. Gen., Boise, for appellee.

McFADDEN, Justice.

This appeal is from an order of the Ada County District Court quashing a writ of habeas corpus issued upon the petition of John H. Ebersole. By his petition appellant alleged that he was unlawfully incarcerated in the Idaho State Penitentiary, that the judgment of conviction and imprisonment by which he was held violated his rights under the United States Constitution and the Constitution of this State.

Briefly, the facts leading to this appeal are as follows: Appellant was arrested September 8, 1965, in Jefferson County and charged with the crime of second degree burglary. He was brought before the probate court that day but, being under the influence of narcotics, hearing was continued until the next day, September 9th, at which time he waived preliminary hearing and was bound over to the Jefferson County District Court. The following day, September 10th, he was taken before the Court for arraignment. The judgment of conviction recites that on that day appellant waived counsel, entered a plea of guilty, and was adjudged guilty of the crime of second degree burglary. The judgment ordered pre-sentence investigation with appellant being committed to State Hospital South for investigation and treatment. On October 8, 1965, appellant was returned to court and sentenced, with the sentence being suspended and appellant placed on probation. On December 17, 1965, he was again brought before the court for violation of the probation order, and judgment and commitment to the Idaho State Penitentiary was entered.

On the habeas corpus hearing before the Ada County District Court, the evidence reflected that at the time of appellant's arraignment before the Jefferson County District Court, appellant was not represented by counsel; and no court reporter or clerk of the court was present. At the habeas corpus hearings, appellant testified, as did the Jefferson County District Judge. Numerous exhibits were admitted, and based on evidence received, the Ada County District Court entered its findings of fact, conclusions of law and judgment quashing the writ of habeas corpus.

On this appeal appellant assigns error of the Ada County District Court in entering its judgment quashing the writ of habeas corpus; also in entering certain findings of fact, and its conclusions of law.

Among the findings of fact entered by the Ada County District Court, claimed to be in error, are the following:

'That when the Petitioner was arraigned before the District Court, the Information charging him with Second Degree Burglary was read to him, and he was advised of his rights-including his right to court appointed counsel at county expense if he did not have sufficient funds to procure his own counsel.

'* * *.

'That the Petitioner further stated to the Court that he wanted to enter a plea and did enter his plea of 'guilty' to the crime of Second Degree Burglary as charged in the Information. * * *.'

Based on the findings of fact, the court entered conclusions of law which are assigned as error, as follows:

'That the Petitioner has not been deprived of due process and all of his constitutional rights were accorded him.

'That there were no procedural defects in connection with Petitioner's arraignment and sentence which would deprive the sentencing Court of jurisdiction or render the Judgment of Conviction invalid.

'* * *.

That the Petitioner voluntarily entered his plea of 'Guilty' to the crime of Second Degree Burglary as charged in the Information.'

This Court, recently decided two cases involving the duty of a trial court to advise a defendant of his constitutionally guaranteed right to counsel and to the right to have counsel appointed at public expense in the event of such defendant's indigency, viz., Bement v. State, 91 Idaho 388, 422 P.2d 55, followed by Pharris v. State, 91 Idaho 456, 424 P.2d 390. The following statement from Bement v. State bears repeating:

'The right to counsel, 'the most pervasive right of an accused,' has been accorded singular significance by federal courts. So important is the right, and so strong the presumption against its waiver, that a trial judge's clear and recorded statement of the right to an accused felon before inquiring whether the accused wishes to 'waive' the right, followed by the accused's immediate affirmative 'waiver,' will not necessarily compel a finding of intelligent waiver. (citations).' (Emphasis added.) 422 P.2d at 62.

In Bement v. State, the following portion of the opinion of the Supreme Court of the United States in Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309, is quoted:

'To discharge this duty ('protecting duty' of a trial judge to fully safeguard the right to counsel) properly in light of the strong presumption against waiver of the constitutional right to counsel, a judge must investigate as long and as thoroughly as the circumstances of the case before him demand. The fact that an accused may tell him that he is informed of his right to counsel and desires to waive this right does not automatically end the judge's responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, * * *. A judge can make certain that an accused's professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.' 332 U.S. 723-724, 68 S.Ct. 323, 92 L.Ed. 311.

In Pharris v. State, supra, the following quotation is applicable in evaluation of the record now before this court in the instant cause:

'The right of an indigent accused to be represented by counsel has often been stated by the United States Supreme Court in terms of a correlative duty resting upon the trial judge to affirmatively present the accused with a broad understanding of the whole spectrum of his right to counsel prior to the acceptance of any ostensible waiver of such right. (citations.) This duty fully to advise an accused of these rights bespeaks, at least, of a strong presumption against the waiver of a constitutionally guaranteed right, where, as here, a knowing and intelligent waiver does not affirmatively appear from the record of the proceedings before the court wherein the accused was required either to elect to have counsel, or to waive the right to counsel. (citations.)' 424 P.2d at 393-394.

At the Ada County habeas corpus hearing, a copy of the judgment of conviction and order for pre-sentence investigation entered by the Jefferson County District Court on September 10, 1965, was admitted in evidence. Therein it is stated:

'* * * defendant was duly informed by the court that he should, in fact, obtain an attorney if there was any doubt in his mind whatsoever concerning the charges or the ability of the State of Idaho to prove said charges; that the defendant specifically stated he did not desire counsel * * *;' The District Judge who presided at the Jefferson County proceedings was called as a witness by the state and testified at the Ada County District Court proceedings. He stated, among other things:

'* * * I read the charge to him as it was contained in the county attorney's information, I informed him he had a right to an attorney and I told him that if he wanted an attorney he could have one, I also told him that if he felt he wanted an attorney but felt that he could not afford one that the county would furnish one for him, and I went a little farther than that, I think Mr. Ebersole had made some commitments before I did, but well, no, he had not, but I had read the charge to him, I remember telling him that with regard to this charge in making a plea he had the choice, he could plead guilty or he could not plead guilty, and I remember telling him that in making a plea of guilty he should consider that the presumption of innocence was in his favor and that the Court would presume that he was innocent until someone had proved that he was guilty, and that if he wanted to, he had the right to insist that he be tried and I told him that I would not only-I not only told him that he had the right to an attorney but advised him that if he thought he was not guilty, or that if they were unable to prove that he was guilty he should insist on having an attorney and try the case, and the record more or less contains that-* * * and then I asked Mr. Ebersole-Mr. Ebersole said he did not want an attorney, he was ready to make his plea, and as nearly as I can remember he was rather emphatic about it, he did not see how an attorney could do him any good, * * *.'

From the record it does not appear that appellant was ever asked if he comprehended what was taking place in court, or as to his financial condition; and certainly there is nothing in the record that reflects any response by appellant to interrogations in regard to his understanding of those rights and reflective of a knowing and intelligent waiver of the right to counsel, essential to a valid waiver of such right.

'The fact that an accused may tell him (the judge) that he is informed of his right to counsel and desires to waive this right does not automatically end the judge's responsibility. To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder'. Von Moltke v. Gillies, supra.

It is our further conclusion that the Jefferson County trial court failed to follow mandatory statutory requirements in conducting appellant's arraignment.

Attention is first called to the...