Gibson v. Page, A--14678
| Decision Date | 08 January 1969 |
| Docket Number | No. A--14678,A--14678 |
| Citation | 449 P.2d 711 |
| Parties | Willie GIBSON, Jr., Petitioner, v. Ray H. PAGE, Warden and State of Oklahoma, Respondents. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
1. An application for an appeal out of time will be denied where Petitioner was advised of his right to appeal, waived such right, and failed to allege the denial of any constitutional right regarding an appeal. 22 O.S.Supp.1968, § 1073.
2. Allegations of insufficient evidence and excessive sentence do not state a basis for granting an appeal out of time where the sentence was within the limits provided by statute in the absence of a claim of denial of any right relating to an appeal. 22 O.S.Supp.1968, § 1073.
3. Statement volunteered to police as to commission of a crime where defendant testifies to such at his trial does not constitute an illegal in-custody confession without benefit of counsel made inadmissible by the Fifth Amendment of the United States Constitution under the United States Supreme Court rule in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974.
Original proceedings in which Willie Gibson, Junior seeks a post-conviction appeal. Writ denied.
Willie Gibson, Jr., pro se.
G. T. Blankenship, Atty. Gen., Hugh H. Collum, Asst. Atty. Gen., for respondents.
This is an original proceeding in which Willie Gibson, Jr. seeks a post-conviction appeal of the judgment and sentence dated August 30, 1963, in Case No. 20219 in the District Court of Tulsa County, Oklahoma, wherein Petitioner was sentenced to life imprisonment upon a jury verdict finding him guilty of murder. In support of his request for an appellate review out of time, Petitioner alleges that he was denied an appeal of his conviction due to ineffective counsel's failure to perfect an appeal and the failure of the trial court to advise him of his right to appeal as an indigent; that he was not represented by counsel at all stages of the proceedings particularly while he was questioned by police and during his arraignment; that the evidence was insufficient to sustain the verdict; and that the sentence is excessive.
Upon a review of Petitioner's application this court directed that the District Court of Tulsa County conduct an evidentiary hearing on the allegations in support of a postconviction appeal. Said hearing was conducted on July 9, 1968, before the Honorable W. Lee Johnson, District Judge, with Petitioner present and represented by Marion Dyer, a public defender, and the State represented by Ronald Shaffer, Assistant District Attorney. The evidence consisted of testimony of Petitioner's two trial attorneys, Robert B. Copeland and O. S. Graham, as well as another Tulsa attorney, Amos Hall. Also admitted into evidence were certain items of correspondence between Petitioner, the District Clerk of Tulsa County and Court Reporter at his trial. A transcript of the evidentiary hearing and the Judge's findings of fact and conclusions of law thereupon were transmitted to this court along with a partial transcript of Petitioner's trial consisting of the testimony of the arresting officer and Petitioner's own testimony.
Upon the evidentiary hearing the District Judge made the following findings: (1) Petitioner was represented by counsel at all stages of the proceedings after the filing of a preliminary information; he was taken before an examining magistrate on the night of the homicide while represented by Robert Copeland who represented him thereafter along with O. B. Graham at the trial. (2) Petitioner was 'advised of his right of appeal at the time of the sentencing and at that time he did not desire to appeal.' The court minutes reflect 'No intent of appeal shown in open court.' The court found that the first indication that Petitioner desired an appeal was on October 12, 1964, almost a year after the date of his sentencing and considerably after the six month period in which to perfect an appeal as allowed by statute. (3) The court further found that there was no basis to the claim that there were illegal admissions against interest by persuasion admitted into evidence since Petitioner's own testimony reveals that he called the police and informed them he had shot the deceased and wanted their protection. (4) The court further found that both Petitioner's trial attorneys believed that Petitioner received a fair and impartial trial; that he was legally convicted; that he actually was guilty of the crime by his own...
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Gibson v. State, A--17084
...files in this case and having read the opinions of the Oklahoma Court of Criminal Appeals in Gibson v. Page, 438 P.2d 500, and in Gibson v. Page, 449 P.2d 711, and being fully informed in the facts and in the law, on consideration Finds: 1. The grounds for relief which the defendant now see......