Eyman v. Superior Court In and For Pinal County

• Decision Date: 23 December 1968
• Docket Number: No. 2,CA-CIV,2
• Citation: 448 P.2d 878,9 Ariz.App. 6
• Parties: Frank A. EYMAN, Warden, Arizona State Prison, Petitioner, v. SUPERIOR COURT of the State of Arizona IN AND FOR the COUNTY OF PINAL, and T. J. Mahoney, a Judge thereof, Respondents; Kenneth Dell KELLEY, Real Party in Interest. 625.
• Court: Arizona Court of Appeals

Page 878

448 P.2d 878

9 Ariz.App. 6

Frank A. EYMAN, Warden, Arizona State Prison, Petitioner, v. SUPERIOR COURT of the State of Arizona IN AND FOR the COUNTY OF PINAL, and T. J. Mahoney, a Judge thereof, Respondents;

Kenneth Dell KELLEY, Real Party in Interest.

No. 2 CA-CIV 625.

Court of Appeals of Arizona.

Dec. 23, 1968.

Review Denied March 4, 1969.

Gary K. Nelson, Atty. Gen., Thomas M. Tuggle, Asst. Atty. Gen., for petitioner. Stanfield, McCarville & Briggs, by Ron L. Briggs, Casa Grande, for real party in interest.

MOLLOY, Judge.

These extraordinary writ proceedings have been instituted in this court to prevent the issuance of a writ of habeas corpus by the respondent-court. The appropriateness of appellate intervention by extraordinary writ is indicated by the cases of State v. Court of Appeals, Division Two, 101 Ariz. 166, 416 P.2d 599 (1966), and Buell v. Superior Court, 96 Ariz. 62, 391 P.2d 919 (1964).

On August 15, 1968, Kenneth Dell Kelley, an inmate of the Arizona State Prison, filed a petition for writ of habeas corpus in the respondent-court, challenging the validity of his conviction of first-degree murder in 1957. The judgment of conviction was entered upon Kelley's plea of guilty.

The petition filed makes various allegations pertaining to prolonged interrogation, and failure to appoint counsel, to warn of Fifth Amendment rights and to notify the defendant's parents of a juvenile hearing. The petition does not, nowever, allege that the plea of guilty was involuntary or that the petitioner was not actually guilty of the crime of which he was convicted. See Application of Buccheri, 6 Ariz.App. 196, 431 P.2d 91 (1967).

The petitioner contended that the superior court '* * * lacked jurisdiction to find him guilty * * *' for the reason that the juvenile court hearing, at which it was decided not to suspend criminal prosecution, did not comport with the requirements enunciated in In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), and Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966).

A full hearing was held in superior court at the conclusion of which the court determined that Kelley was entitled to the relief sought and that a writ of habeas corpus should issue releasing him from custody. The court, upon request, made findings of fact and conclusions of law. It found, Inter alia, the following. On January 11, 1957, the petitioner and four other juveniles were arrested by a Highway Patrolman based on a juvenile complaint from California. At the time of arrest, Kelley was sixteen years old. The five juveniles were taken to the Pinal County Jail and placed in juvenile cells at the jail. After three days' detention there, they were transferred to the Maricopa County jail where they were individually questioned about the death of one Al Jennings. Kelley made a 'confession' about one had a half hours after the questioning commenced but the interrogation continued several hours thereafter. His request, during this interrogation, to see his parents and an attorney were denied. Near the conclusion of the interrogation, in the presence of a juvenile probation officer, a representative of the county attorney's office, and a deputy sheriff, Kelley's statement was taken by a stenographer. The following day, Kelley and the other juveniles were taken to the 'scene of the crime' near Gila Bend to reenact the crime. They were accompanied by a deputy county attorney, juvenile officers and sheriff's deputies. At no time were the juveniles advised of their constitutional rights, in particular, their right to counsel either retained or appointed.

Kelley's mother received no formal notice of the juvenile hearing. She learned of the date of said hearing through her own inquiries, whereupon she went to Phoenix on the date set for hearing. She was not advised of her right or her son's right to be represented by counsel at the hearing nor that counsel would be appointed if they were unable to afford counsel. On the morning of January 22, 1957, Kelley's mother saw her son in the juvenile judge's courtroom a few minutes before he entered the judge's chambers for his hearing. When Kelley was told by an officer in the courtroom to proceed to the judge's chambers, his mother asked if she could go with him and was told her presence was not necessary, that she should stay in the courtroom.

At the juvenile hearing in chambers, the juvenile judge reviewed Kelley's case file, asked him certain questions, and told him he would be remanded for trial as an adult. No testimony was given by sworn witnesses. On the afternoon of the hearing, a Tucson attorney who was in Phoenix at the time received a message from his office to attend Kelley's juvenile hearing. He arrived at the juvenile court sometime after 5 p.m., and sat in the back of the courtroom. The juvenile judge came out of chambers, ascended the bench, and stated in open court that three of the juveniles would be tried as adults in the superior court and that two would remain under the jurisdiction of the juvenile court.

The Tucson attorney was retained to represent Kelley and he informed the county attorney's office of said fact. The following morning, the petitioner was taken to Buckeye, Arizona, to appear before the justice of the peace. The justice of the peace did not have any formal, written, remand order. Kelley's retained counsel was not notified of this appearance and was not present at the time the petitioner waived a preliminary hearing. On January 28, 1957, the Maricopa County Attorney filed an information accusing Kelley and two others of first-degree murder. Kelley entered a plea of not guilty, and thereafter, on the advice of counsel, withdrew his not guilty plea and entered a plea of guilty. Counsel was present at the time, and had advised entry of the guilty plea believing that it would preclude the possibility of a death sentence. On June 3, 1957, Kelley was adjudged guilty and sentenced to life imprisonment. In March, 1967, his life sentence was commuted to thirty-four years.

The trial court concluded that, on the basis of these facts, the petitioner had been convicted in violation of constitutional rights and was entitled to his liberty. The trial court, in rendering its judgment, relied upon Gault, Kent, Application of Billie, 103 Ariz. 16, 436 P.2d 130 (1968), and Steinhauer v. State, 206 So.2d 25 (Fla.App., 1968). Although we must accept the trial court's findings of fact, we are not bound by its conclusions of law.

In Application of Billie, the Gault decision was given retroactive application to a juvenile hearing which resulted in a commitment to an institution for juvenile offenders. Our Supreme Court stated therein:

'We conclude, therefore, that since the Supreme Court determined that the same protection of due process afforded adults under the Fourteenth Amendment applies to children in juvenile court proceedings, that Court intended to achieve the same retrospective effect in cases of all children whose Delinquency adjudication and commitment had been accomplished without regard to compliance with the rules established in Gault.' (Textual emphasis added)

436 P.2d 136.

We are not here considering the petition of one committed to an institution without advice or assistance of counsel. We, therefore, do not consider Billie controlling. Steinhauer would appear to support the conclusion reached by the trial court. The question there presented was whether a sixteen-year-old boy was entitled to counsel in the juvenile court at a hearing where He waived the jurisdiction of that court. The court stated:

'We interpret what was said in Gault and Kent, when read together, to mean that the basic requirements of the due process clause of the Fourteenth Amendment require assistance of counsel whether it results in a transfer order or a commitment order. * * *

'The basis of the Gault decision is that unless counsel was tendered to the juvenile, subsequent proceedings are not in accord with due process of law. Therefore, we feel that the ruling in Gault must apply to cases both prospectively and retroactively.'

206 So.2d 27--28.

The Steinhauer decision is not directly apposite in that Florida's statutory scheme of waiver by the juvenile, of juvenile court jurisdiction, ¹ differs from ours; in ours, there is no provision for waiver of jurisdiction by the juvenile.

Other jurisdictions which have considered the application of Gault to a 'waiver-type' hearing have declined to apply Gault retroactively. In re Harris, 67 Cal.2d 876, 64 Cal.Rptr. 319, 434 P.2d 615 (1967); Halstead v. State, 4 Md.App. 121, 241 A.2d 439 (1968); State v. Hance, 2 Md.App. 162, 233 A.2d 326 (1967); Cradle v. Peyton, 208 Va. 243, 156 S.E.2d 874 (1967). See also United States v. Wikerson, 262 F.Supp. 596 (D.C.D.C. 1967), cert. denied, 390 U.S. 1045, 88 S.Ct. 1641, 20 L.Ed.2d 308, and Smith v. Commonwealth, 412 S.W.2d 256 (Ky.1967), Pre-Gault decisions which decline to apply Kent, supra, retroactively.

Chief Justice Traynor, speaking for the California Supreme Court in In re Harris, supra, stated:

'Retroactive application of Kent would 'seriously disrupt' the administration of justice. (Johnson v. State of New Jersey (1966) 384 U.S. 719, 731, 86 S.Ct. 1772, 16 L.Ed.2d 882.) Judgments of conviction entered following waiver of juvenile court jurisdiction and final before Gault was decided 'threaten to be of significant quantity" (citation omitted) Moreover, many of the defendants convicted after remand for criminal proceedings have become adults and are no lonter subject to juvenile and are no longer subject to juvenile attack, a court determined that the waiver of juvenile court jurisdiction was proper when made, the judgment would stand. If the juvenile court should have retained jurisdiction, however, the judgment would be vacated and the defendant, by reason of age, would no longer be triable in the juvenile court. Although remand to the...