Ex parte Motley

• Decision Date: 05 May 1948
• Docket Number: 11018.
• Citation: 193 P.2d 613,86 Okla.Crim. 401
• Parties: Ex parte MOTLEY.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

193 P.2d 613

86 Okla.Crim. 401

Ex parte MOTLEY.

No. 11018.

Court of Criminal Appeals of Oklahoma

May 5, 1948

Petition for writ of habeas corpus by Harrold Lee Motley, seeking his release from the State Penitentiary at McAlester, Oklahoma and directed to C. P. Burford, Warden of the State Penitentiary at McAlester, Oklahoma.

Writ denied.

Syllabus by the Court.

1. The writ of habeas corpus may not be used as a substitute for an appeal.

2. Where a petition for a writ of habeas corpus is filed, the burden is upon petitioner to sustain the allegations thereof.

3. 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.

4. 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 habeas corpus.

5. Where a prisoner in custody under sentence of conviction seeks to be discharged on habeas corpus, that inquiry is limited to the questions whether the court in which the prisoner was convicted had jurisdiction of the person of the defendant and of the crime charged, and did the court have jurisdiction to render the particular judgment.

6. The right to relief by habeas corpus may be lost by laches, when the petition for habeas corpus is delayed for so long a period of time that the issues of what transpired in the trial court become uncertain speculative, and clouded by time.

7. 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.

8. 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.

9. This court in a habeas corpus proceeding will not look beyond the judgment and sentence of a court of competent jurisdiction as to mere irregularity of procedure or errors of law on questions over which the court had jurisdiction.

10. Held, that the trial court was not without jurisdiction to pronounce judgment and sentence on the claim that the defendant was without the aid of counsel since the record shows that the defendant was represented by able counsel of his own choice at every stage of the proceedings, was counselled and advised to not enter a plea of guilty which notwithstanding he persisted in doing freely and voluntarily.

Ewing C. Sadler, of Sulphur, for petitioner.

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

BRETT Judge.

This is an original proceeding for writ of habeas corpus brought herein by Harrold Lee Motley wherein he seeks release from the custody of C. P. Burford, Warden of the State Penitentiary at McAlester, Oklahoma. In his petition he alleges that the cause of his restraint is that on the 27th day of October, 1936, he was sentenced by Honorable Roy Paul, then District Judge of Atoka County, Oklahoma, to serve a term of life imprisonment in the state penitentiary at McAlester for the crime of murder. It is well to note at the outset that nowhere in the record does the petitioner question the jurisdiction of the court of the crime committed, of his person, or whether the judgment and sentence pronounced by the court was within the court's power to impose.

But, in his verified petition he says said restraint is unlawful for the following reasons, to wit: that the judgment and sentence was void, contrary to the statutes of the State of Oklahoma, the Constitution and Bill of Rights of Oklahoma and the United States Constitution for the reason that he was not served with a copy of the information together with a list of the witnesses to appear against him twenty-four hours before the case was called for trial; that he was not given twenty-four hours in which to plead; that he was not advised of his right to counsel at every stage of the proceeding, nor of his right to have counsel appointed for him; that no counsel was present at his arraignment; that judgment and sentence was pronounced immediately after entering his plea of guilty without being advised of his constitutional rights; that his plea was entered on the advice of a colored man by the name of Sonnie Hughes; that the court failed to ask him if he knew of any reason why judgment and sentence should not be pronounced against him and failed to advise him of his right to wait forty-eight hours before judgment and sentence; that he was not advised as to his right to trial by jury; that he was not advised of the different degrees of homicide, that if tried by jury he could be acquitted or found guilty of the charge of murder or a lesser degree of homicide, that the jury could assess the punishment; that he was not advised of his rights nor advised of his rights or the consequences of his plea; that his plea was not free and voluntary but was induced by fear, ignorance and duress; that the court was therefore without jurisdiction to pronounce judgment and sentence and his confinement at the present time is without authority of law.

To the allegations of this petition respondent, C. P. Burford, Warden of the State Penitentiary, made due response in which he alleges and states, in substance, that he denies each and every allegation in said petition except that he holds petitioner in custody pursuant to a judgment and sentence of the district court of Atoka County pronounced on October 27, 1936, whereby the petitioner was sentenced to serve life imprisonment upon a plea of guilty to a charge of murder; that the proceedings leading up to the judgment and sentence were in all things legal and valid; that the petitioner had the benefit of the advice of counsel of his own choosing and full knowledge of his rights; that his plea of guilty was voluntary without inducement by any representative of the State after being warned of the consequences thereof; that he was sentenced pursuant to his voluntary plea and was given the minimum punishment allowed by law for said crime.

The record herein reveals that the petitioner was charged with murder based upon the demise of his infant child which he is alleged to have beaten to death. The question presented by this record is: Did the court lose jurisdiction because the defendant was denied the aid of counsel? This record does not support the petitioner's contention as to lack of jurisdiction. It reveals that the petitioner had the aid of counsel of his own choosing at a preliminary hearing, Mr. I. L. Cook, an able and respected attorney of Atoka, Oklahoma. It further discloses he was represented by him in all the proceedings up to and including the pronouncement of judgment and sentence. Mr. Cook advised the petitioner not to enter a plea of guilty and told him that if he should stand trial that he would not get more than ten to fifteen years but notwithstanding this advice from an able lawyer and petitioner still persisted in entering a plea of guilty and in response to which he was sentenced to life imprisonment. In Johnson v. State, 79 Okl.Cr. 363, 155 P.2d 259, it was said: 'Where (accused) * * * has (been) fully advised as to his constitutional and statutory rights and as to the consequences of his plea and that with such knowledge accused deliberately entered plea of guilty, trial court is justified in accepting it even in a capital case.'

The record discloses that Mr. Cook counselled and advised him...