Gantar v. Cox

• Decision Date: 21 September 1965
• Docket Number: No. 8187.,8187.
• Citation: Gantar v. Cox, 351 F.2d 65 (10th Cir. 1965)
• Parties: Ernest G. GANTAR, Appellant, v. Harold A. COX, Warden of the New Mexico State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

351 F.2d 65 (1965)

Ernest G. GANTAR, Appellant, v. Harold A. COX, Warden of the New Mexico State Penitentiary, Appellee.

No. 8187.

United States Court of Appeals Tenth Circuit.

September 21, 1965.

Clark A. Floyd, Denver, Colo., for appellant.

L. D. Harris, Special Asst. Atty. Gen. (Boston E. Witt, Atty. Gen., and Thomas O. Olson, Sp. Asst. Atty. Gen., on the brief), for appellee.

Before PHILLIPS, LEWIS and HILL, Circuit Judges.

PER CURIAM.

Appellant, presently serving an indeterminate sentence of three to fifteen years for unarmed robbery in the New Mexico State Penitentiary, appeals from a denial of his petition for a writ of habeas corpus.

From a reading of the record and the briefs filed here, there appears to be no dispute as to the following facts: Appellant was arrested for the crime of unarmed robbery and taken before a Justice of the Peace, where he appeared without counsel. At this time he was advised by the Justice of the Peace of his right to counsel, of his right to a preliminary hearing and of his right to plead guilty or not guilty. He entered a plea of not guilty and the record shows that he waived a preliminary hearing. Thereafter, he was charged by information in the District Court of McKinley County, New Mexico, appeared for arraignment without counsel and entered a plea of not guilty to the charge of unarmed robbery. Subsequent to this proceeding he was released on bond and his mother employed an attorney to represent him. The attorney advised him to plead guilty and on a later date he appeared before the State District Judge with his attorney, entered a plea of guilty and sentence was imposed.

Appellant's sole contention here is that his constitutional rights were violated when he was not furnished counsel upon his appearance before the Justice of the Peace and prior to his waiver of a preliminary hearing.

We find no merit to the contention because after a careful search of the record we can find no prejudice resulting to the appellant because the fact that he did not have counsel at the time of his appearance before the Justice of the Peace.

It should be noted that we have carefully read the transcript of the proceedings had in the sentencing court. The state trial judge at the time of Gantar's first appearance before him first carefully explained to the accused his right to counsel and advised him that "If you are unemployed and unable to employ an attorney, then the Court can appoint one for you." The trial judge then, with admirable care, explained to the accused the nature of the crime charged and all of the penalty aspects in connection with it. The accused then entered a plea of not guilty and the judge again expressed a willingness to appoint counsel. It was after this proceeding that the accused was released from custody on...