Ex parte Cannon

• Decision Date: 20 April 1960
• Docket Number: No. A-12875,A-12875
• Citation: 351 P.2d 756
• Parties: Matter of the Habeas Corpus of Harry T. CANNON, Petitioner.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 756

351 P.2d 756

Matter of the Habeas Corpus of Harry T. CANNON, Petitioner.

No. A-12875.

Court of Criminal Appeals of Oklahoma.

April 20, 1960.

Syllabus by the Court

1. In every criminal case, whether misdemeanor or felony, the accused is entitled to the assistance of counsel in his defense, and where the accused desires the assistance of counsel, and is unable to employ counsel, it is the duty of the court to assign counsel to represent him even though the charge filed against the accused is only a misdemeanor.

2. A waiver of the constitutional right to the assistance of counsel is of no less moment to an accused who must decide whether to plead guilty than to an accused who stands trial.

3. It is the solemn duty of the judge before whom a defendant appears without counsel to make a thorough inquiry and to take all steps necessary to insure the fullest protection of the defendant's constitutional rights at every stage of the proceedings, and this duty cannot be discharged as though it were a mere procedural formality.

4. 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 waiver is made.

5. The Court of Criminal Appeals indulges every presumption against waiver of fundamental rights, and does not presume acquiescence in their loss.

6. The minutes of the Trial Court constitute the best evidence of what took place at the arraignment, and when in doubt as to what occurred, great weight will be given to the recitals entered in the minutes of the proceedings, but where the minutes are silent, or leave the issue in doubt, the Court of Criminal Appeals will not indulge in presumptions, or speculation to sustain the proceedings, and will grant the writ of habeas corpus.

Original proceeding in habeas corpus whereby petitioner seeks his release from custody in the County jail of Washington County, Oklahoma, where he is being held on conviction of aggravated assault and battery.

Ed Morrison, Tulsa, Harold Charney, Owasso, for petitioner.

Nathan Graham, County Atty., James W. Connor, Asst. County Atty., Washington County, Oklahoma, Bartlesville, for respondent.

BRETT, Judge.

This is a petition by habeas corpus brought by Harry T. Cannon. He complains that the cause of his restraint is by reason of his plea of guilty, conviction, judgment, and sentence to one year in jail, for the crime of aggravated assault on the person of an elderly woman, one Della Ann Burkihiser. The crime was allegedly committed on November 9, 1959. He specifically alleged, among other things, that when he entered his plea of guilty, that he was not advised of his right to aid of counsel, or that if he were unable to provide counsel that the trial court would provide the same for him without expense. This being true, he is entitled to have the proceedings set aside by habeas corpus, and it will not be necessary to discuss any of the other allegations relative to his plea being coerced from him, through fear of being charged with the higher crime of robbery, if he didn't co-operate.

In determining this issue, this court has repeatedly held that each case must depend upon its own particular facts and circumstances; and that the Court of Criminal Appeals indulges every presumption against waiver of fundamental rights, and does not presume acquiescence in their loss. It has continually been held that the minutes of the Trial Court constitute the best evidence of what took place at the arraignment, and when in doubt as to what occurred, great weight will be given to the recitals entered in the minutes of the proceedings. Ex parte Tucker, 91 Okl.Cr. 391, 219 P.2d 245; Ex parte Wooldridge, 72 Okl.Cr. 292, 115 P.2d 284; Cottrell v. McLeod, Okl.Cr., 342 P.2d 240; Ex parte Bradley, 72 Okl.Cr. 107, 113 P.2d 611. In the later case we said, that presumption favors regularity of the proceedings, and the burden is on the petitioners to show to the contrary, unless the same affirmatively appears from the record, and only when it so appears that the judgment and sentence on which petitioner is being held is void will relief be granted by habeas corpus. Therein we further said:

'The presumption created by the absence of the recital of the waiver by defendant of certain of his constitutional and statutory rights in the minutes of the court and in the journal entry of judgment and sentence, however, may be overcome by other evidence, including testimony of the court officials which shows that the proceedings upon the arraignment of the defendant were regular, and that the defendant was fully advised of his statutory and constitutional rights before entering his plea.'

These principles apply with equal force in all cases whether they involve misdemeanor or a felony. Hunter v. State, Okl.Cr., 288 P.2d 425. In the case at bar we must look to the minutes, the judgment, and the record as made. The minutes of the Trial Court recite '* * * Nov. 9, Def. present--no atty. Info. read--Defdt waives atty--waives time to plead and pleads guilty and Co. Atty. recommends one year in County jail--Defdt. sentenced to 1 yr. in Co. jail. * * *'

The pertinent part of the judgment and sentence recites merely that the defendant, 'The prisoner, the above named Harry Thomas Cannon, being present, and having been presented by information for the crime of aggravated assault and...