Ford v. State

• Citation: 138 N.W.2d 116,258 Iowa 137
• Decision Date: 16 November 1965
• Docket Number: No. 51823,51823
• Parties: Larry E. FORD, Appellant, v. STATE of Iowa and Charles H. Haugh, Warden, Appellees.
• Court: United States State Supreme Court of Iowa

Page 116

138 N.W.2d 116

258 Iowa 137

Larry E. FORD, Appellant, v. STATE of Iowa and Charles H. Haugh, Warden, Appellees.

No. 51823.

Supreme Court of Iowa.

Nov. 16, 1965.

Robert H. Story, Anamosa, for appellant.

Lawrence F. Scalise, Atty. Gen., Don R. Bennett, Asst. Atty. Gen., Des Moines, and Robert R. Beckmann, Anamosa, for appellees.

BECKER, Justice.

The facts giving rise to this habeas corpus action are as follows: Larry E. Ford, appellant, was convicted of breaking and entering in the District Court of Polk County after trial by jury. On April 3, 1964, the District Court entered its judgment sentencing the appellant to a term of 10 years. Appellant prepared, pro se, a notice of appeal for service on the county attorney, Polk County, which notice was marked for filing in the District Court of Polk County, sworn to on May 21, 1964, before notary public, A. B. Corne, director of admissions, Men's Reformatory, Anamosa, Iowa. In accordance with usual procedure the notice was left with Mr. Corne who delivered the notice of appeal to the warden's office the same day. Appellant's notice was not mailed from the institution until on or about June 5, 1964, at which time the filing of notice of appeal under Iowa law was beyond the 60 days allowed by statute. Acknowledgment of service of notice of criminal appeal by the Polk County Attorney in the original attempted appeal is dated June 29, 1964, as is the acceptance of service on the back thereof by the clerk of the Polk County District Court. On September 30th notice of desire to submit appeal on printed abstract, brief and record was served on the Attorney General by Thomas A. Renda, appellant's then court appointed attorney.

On October 7, 1964, the Attorney General filed motion to dismiss the appeal for want of jurisdiction because notice of appeal was not timely filed. That motion was sustained on October 19, 1964.

On January 22, 1965, petition for writ of habeas corpus was filed in Jones County District Court. Mr. Robert H. Story was court appointed counsel for appellant. Hearing was held on the same date.

Appellant testified that he received a statement from the Iowa Supreme Court that his appeal had been dismissed since it was received after the 60 day time limit. He then contacted his counselor at the reformatory and was told that the notice had been mailed from the institution on the 5th or 6th day of June, 1964.

The trial court found that appellant's restraint and confinement was legal and dismissed the petition.

I. Habeas corpus may not be used in lieu of appeal. Thrasher v. Haynes, 221 Iowa 1137, 264 N.W. 915. We have held that where notice of appeal was filed three years after final judgment this court was without jurisdiction to entertain the appeal. State v. Olsen, 180 Iowa 97, 162 N.W. 781. Also in State v. Van Andel, 222 Iowa 932, 270 N.W. 420 where the first notice of appeal was timely filed but a second notice was filed seven days late, the second notice was a nullity and jurisdiction based on the earlier notice was lost due to failure to file abstract within the proper time. Under such rulings the trial court acted properly in denying the writ of habeas corpus.

II. The holding in division I disposes of this case. It does not dispose of the problem. We must determine under the whole record in this case, and the record in State v. Larry E. Ford, Criminal No. 51502, whether or not petitioner has been denied his constitutional rights. If our decision is affirmative, we must see to it that petitioner's constitutional rights are accorded to him.

'Since the federal courts have announced the principle that in habeas corpus proceedings they will examine the records and will go behind the records in courts of the various states to determine whether the petitioner's rights under the constitution of the United States have been denied him and so lack of jurisdiction in the state court appears, we think it is incumbent upon us to make the same examination for ourselves.' Sewell v. Lainson, 244 Iowa 555, 566, 57 N.W.2d 556, 563.

The papers in State v. Larry E. Ford include a letter from the Men's Reformatory at Anamosa to appellant's then attorney signed by John Spevacek, Correctional Counselor, the material part of which reads as follows:

'I am writing to you on behalf of my counselee, Larry Ford, who is your client. Mr. Ford informed me of the problem which you apparently face. It appears that his We must determine under the whole at least four days late. In the letter Mr. Ford has shown me it is stated that this appeal arrived in Polk County Court on June 8th, four days late. In another letter it appears that these papers arrived on June 29th. In any event, institutional records show that Mr. Fords Appeal and affidavit of poverty were both signed and notarized on May 21, 1964. However for some unexplained reason these papers were not mailed from the institution until June 5th. Consequently they were mailed after the court's deadline. I must emphasis that this is not an oversight on Mr. Ford's part, but an error on the part of the institution. During this period there was some turmoil here at the institution in which it got overlooked.' The fact that this letter was received is attested to by attorney Renda's affidavit.

This letter together with the testimony of Mr. Corne that the notice of appeal was given to him by appellant on May 21, 1964, and that it was the usual practice for the warden's secretary to forward such appeals to the various places they are supposed to go, demonstrates that the appellant, through no inaction of his own, had been denied the appeal to which he was entitled as a matter of right.

'It should be noted that while the right of appeal was not known to common law and is entirely statutory, State v. Olsen, 180 Iowa 97, 99, 162 N.W. 781, yet where such right is given it is substantial and an accused may not be deprived thereof by duress, coercion, fraud or trickery or by any other act or failure to act upon the part of the State which unfairly denied him his appeal. Boykin v. Huff, 73 App.D.C. 378, 121 F.2d 865; Cochran v. [State of] Kansas, 316 U.S. 255, 62 S.Ct. 1068, 86 L.Ed. 1453.' Sewell v. Lainson, supra.

The defendant is entitled to an actual appellate determination of the merits of his original conviction...