Ex parte Hampton

• Decision Date: 20 October 1948
• Docket Number: A-11061.
• Citation: 198 P.2d 751,87 Okla.Crim. 416
• Parties: Ex parte HAMPTON.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

198 P.2d 751

87 Okla.Crim. 416

Ex parte HAMPTON.

No. A-11061.

Court of Criminal Appeals of Oklahoma

October 20, 1948

Original habeas corpus proceeding by Marvin Hampton, petitioner, to secure the petitioner's release from the penitentiary.

Writ denied.

Syllabus by the Court.

1. Every presumption favors regularity of the proceedings had in the trial court, errors must affirmatively appear from the record; it is never presumed.

2. As against a collateral attack the judgment is valid unless the contrary appears in the record and omission in the record of every step in the proceeding does not overcome the presumption of regularity and warrant release on writ of babeas corpus.

3. Where a disputed question arises as to what occurred upon arraignment of one accused of crime great weight will be given to the recitations in the minutes of the court proceedings as to what occurred.

4. Public policy will not permit the petitioner, in a habeas corpus proceeding, to supply the missing links, by his testimony standing alone. His release must be based on something more substantial and in any event his testimony should be corroborated by clear and convincing proof.

5. Custody and place of confinement is an administrative matter and not a judicial act.

6. Where in a habeas corpus proceeding it appears from the petition and the facts involved that the present custody and place of confinement of a person convicted of crime is according to law the writ will be denied.

Marvin Hampton, pro se.

Mac Q Williamson, Atty. Gen., and Sam H. Lattimore, Asst. Atty Gen., for respondent.

BRETT Judge.

This is an original proceeding in habeas corpus brought by Marvin Hampton, petitioner. In his verified petition he complains that in Osage County in Case No. 2921, he was charged with murder alleged to have been committed by himself and others on March 22, 1930. To this charge he plead guilty on March 13, 1937 and was sentenced to life imprisonment in the Reformatory at Granite, Oklahoma. In his petition he alleges that he is now being unlawfully restrained of his liberty by C. P. Burford, Warden of the State Penitentiary at McAlester Oklahoma. The grounds of said complaint are that he was never served with any notice or copy of the information or list of witnesses; that he was not advised of his rights, that he was not advised that he was entitled to trial by jury but he was advised by the Assistant County Attorney that a plea of guilty would bring forth a sentence of five years, that he was advised by the county attorney that he did not need an attorney on a plea of guilty. He further contends that the court first accepted the petitioner's plea of guilty and then advised him he would have to sentence petitioner to life, that the court did not inform him of his right to withdraw his plea of guilty, that he was not advised of the different degrees of homicide, that on trial he might be convicted of a lesser degree of homicide than murder, that he entered his plea of guilty solely upon the representations made to him by the assistant county attorney, that by reason of the said facts his plea was not voluntary, all of which served to deny the court proper jurisdiction to accept said plea and enter the judgment and sentence thereon.

Furthermore, he contends that the district judge violated the statutes of the State of Oklahoma by sentencing him to the Oklahoma State Reformatory at Granite, Oklahoma, for the reason that the statutes forbid a person to be sentenced to the State Reformatory after conviction for murder. None of the grounds set forth in the petition for habeas corpus appear on the face of the record but to the contrary it appears that the petitioner was accorded his constitutional and statutory rights, the denial of which he first complains. In Ex parte Seale, 75 Okl.Cr. 183, 129 P.2d 862, this court said: 'Where a petition for a writ of habeas corpus is filed, the burden is upon petitioner to sustain the allegations thereof. It is only when the record and the evidence reveals that the judgment and sentence under which petitioner is being held is void will relief be granted by habeas corpus.'

See also Ex parte Motley, Okl.Cr.App., 193 P.2d 613, 614, not yet reported in State reports.

At the hearing upon the petition, the petitioner offered no additional proof other than that contained in his verified petition. To the contrary the state offered in evidence certified copies of the court minutes. An examination of these minutes reveals that the petitioner was not denied any of the foregoing rights but discloses that the petitioner was ably represented on February 1, 1937, at the time of his arraignment by counsel, Honorable John Tillman of Pawhuska, an able attorney, well versed in criminal procedure and law. The minutes disclose at the arraignment the information was read to him, and a copy thereof served upon him in open court. The minutes further reveal that he was given forty-eight hours to plead. That thereafter, and on February 3, 1937, petitioner was again present in open court in person and by counsel; that at said time counsel was granted leave to withdraw. It further appears that the court explained the petitioner's rights to him, and the defendant thereupon entered a plea of not guilty. On February 25, 1937 the petitioner again appeared in open court and asked leave to withdraw his former plea of not guilty for the purpose of entering a plea of guilty. The minutes disclose that before the request was granted the court explained the penalties of a plea of guilty to the petitioner. That notwithstanding this explanation petitioner entered his plea of guilty to the charge of murder, whereupon sentence was deferred until March 15, 1937. It further appears that on March 13, 1937 petitioner requested that he should be sentenced then and that the matter not be deferred until March 15, 1937. The record discloses that upon this request being made the county attorney made recommendation that the petitioner be given the minimum sentence for murder, that of like imprisonment; that thereupon the court sentenced the petitioner to the reformatory at Granite for a term of his natural life. As hereinbefore indicated the petitioner offers no proof to support the charges other than his verified petition and a photostatic copy of the judgment and sentence. In Ex parte Motley, supra, we said:

'Every presumption favors regularity of the proceedings had in the trial court. The general rule often announced by this court is that error must affirmatively appear from the record; it is never presumed.

'As against a collateral attack the judgment is valid unless the contrary appears in the record and omission in

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