Gardner v. State

• Decision Date: 19 December 1967
• Docket Number: No. 9842,9842
• Citation: 91 Idaho 909,435 P.2d 249
• Parties: Leonard Dean GARDNER and Wayne Carter Peterson, Plaintiffs-Appellants, v. The STATE of Idaho, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 249

435 P.2d 249

91 Idaho 909

Leonard Dean GARDNER and Wayne Carter Peterson, Plaintiffs-Appellants, v. The STATE of Idaho, Defendant-Respondent.

No. 9842.

Supreme Court of Idaho.

Dec.19, 1967.

Jesse R. Walters, Jr., Boise, for appellants.

Allan G. Shepard, Atty. Gen., and David A. Frazier, Asst. Atty. Gen., Boise, for appellee.

McFADDEN, Justice.

In August, 1964, appellants, who are halfbrothers, were convicted of robbery in the Bonneville County District Court and sentenced to a term of fifteen years in the state penitentiary. In December 1965, while inmates of the prison, they filed a petition for habeas corpus in the Ada County District Court, following which the writ issued. A stipulation was executed by their counsel and the attorney general, representing the warden of the penitentiary which set forth agreed facts which were to be considered as a return to the writ. Pursuant to the stipulation the cause was transferred to the Bonneville County District Court for hearing.

Hearing was had on the issues presented by the return to the writ, and the appellant's petition for writ, considered as the answer to the return. Following the hearing the court entered its order quashing the writ and remanded the appellants to the custody of the warden. In their appeal from this order, appellants contend that they were denied their right to appeal from the judgment of conviction.

The trial court in its memorandum opinion stated:

'* * * inquiry into the matter reveals that each of the petitioners was very adequately represented at the trial by court appointed and paid counsel, who did an excellent job of defending in this case. They consulted with their counsel about an appeal and were advised that counsel were at a loss to find grounds for appeal. They did not ask for a new trial, nor did they file an appeal. They obviously wanted relief from the 15 year sentence without a new trial or appeal, and are still trying to attain that end.

'The evidence reveals that counsel adequately consulted with the petitioners. Judge Thomas did nothing to mislead the petitioners about their appeal.

'* * *.

'Petitioners' allegations and proof are without merit sufficient to grant the writ of habeas courpus. (sic).'

Appellant's assignments of error are directed to facts, the law, and the ruling of the trial court quashing the writ.

As concerns the facts developed on the habeas corpus hearing, it was stipulated that the warden held the appellants pursuant to the judgments and commitments entered by the trial court following their jury trial on the robbery charge. At the trial, each of the appellants was represented by individual counsel appointed by the court. As a part of the record on this appeal, there appears not only a transcript of the proceedings at the habeas corpus hearing, but also a transcript of the proceedings had at the time appellants were sentenced on the felony charge.

At the time of sentence on August 21, 1964, both appellants with their repective counsel were before the trial court. Appellant Gardner, through his court-appointed attorney, asked that he be declared a pauper and that an attorney be appointed for his appeal. Immediately thereafter, the trial court specifically inquired of Gardner if he desired to appeal his conviction, and Gardner advised that he did not desire to appeal but rather that he wished to get a copy of the transcript of the trial, which could save him time if he determined whether he 'wanted to continue this case or not.' The trial court, in the presence of both appellants and their attorneys, advised Gardner to confer with his attorney so that an appropriate motion could be presented to the court. After sentencing, both appellants consulted with their counsel and discussed the possibilities of appeal, and they were advised that in the opinion of their respective counsel no grounds for appeal existed. No other request was made for appointment of counsel for appeal. On September 21, 1964, appellants by a joint letter addressed to the district judge who presided at their trial, moved for a modification of their respective fifteenyear sentences. The district judge replied, advising them that there was no way he could modify their sentences. On October 21, 1964, by another joint letter, appellants presented to the district judge their motion to be declared paupers so that they could have a transcript of their trial. Again the judge replied, advising them that their appeal time had expired, but that he would consider the motion contained in their letter of September 21, 1964, as a motion for new trial. On November 11, appellants again wrote the judge and after stating they were not aware of the limited time to appeal, advised him that they did not wish to proceed with any motion for new trial.

At the habeas corpus hearing, both attorneys who had been appointed to represent appellants at the trial testified. Appellant Peterson's counsel testified as to discussing the matter of appeal with Peterson, not only immediately following the sentencing, but also later, while Peterson was confined in the county jail; he testified to having received a letter from Peterson written from the penitentiary after the time for appeal had lapsed. Appellant Gardner's counsel testified that he talked to Gardner immediately following the sentencing, as well as immediately following return of the verdict. He stated that he advised Gardner as to the possibilities of a longer sentence inherent in the event of successful appeal and new trial; that he didn't hear from Gardner after that, although Gardner apparently wrote him, but the letter was never received.

It is our conclusion that the facts fully sustain the trial court's evaluation of them as set forth in his memorandum opinion.

In considering the law applicable to this situation certain principles must be kept in mind. No one has a constitutional right to an appeal (McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894)), but once an appellante procedure is provided by a state, such procedure must meet the constitutional requirements of due process and equal protection. Dowd v. United States ex rel. Cook, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed. 215 (1951). A state must furnish a transcript at no cost to an indigent defendant on appeal; Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956); and also provide him with assistance of counsel on appeal (Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963)), which assistance must be that of an advocate, and not simply as an amicus curiae. Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The determination of whether an appeal should be taken or not rests solely with the accued and is not to be decided by his attorney, Wainwright v. Simpson, 360 F.2d 307 (5th Cir.1966); Fredericks v. Reincke, 152 Conn. 501, 208 A.2d 756 (1965) or directed by the trial judge. United States ex rel. Mitchell v. Follette, 358 F.2d 922 (2d Cir.1966); Puckett v. State of North Carolina, 343 F.2d 452 (4th Cir.1965); Pate v. Holman, 341 F.2d 764 modified 343 F.2d 546 (5th Cir.1965); Boykin v. Huff, 73 App.D.C. 378, 121 F.2d 865 (1941).

The decision in this case as to whether an appeal was to be taken was that of the appellants. They received the advice of their court-appointed counsel, both following the return of the verdict and following the sentence imposed by the trial court. Appellant Gardner advised the court that he did not wish to appeal and both appellants advised the court they did not wish to have their motion considered as a motion for new trial. Appellants, however, argue that it was the duty of the sentencing court to advise them fully as to their right to appeal and the statutory procedures...