Lewis v. State, 11706
| Decision Date | 11 August 1969 |
| Docket Number | No. 11706,11706 |
| Citation | 153 Mont. 460,457 P.2d 765 |
| Parties | Clyde Kent LEWIS, Petitioner, v. The STATE of Montana and Edward Ellsworth, Jr., Warden of the State Penitentiary of the State of Montana, Respondents. |
| Court | Montana Supreme Court |
This is an original proceeding to obtain a writ of review to set aside a previous conviction and to decrease a sentence received upon a subsequent conviction under section 94-4713, R.C.M.1947.
Petitioner, Clyde Kent Lewis, is an inmate at the Montana State Prison. On June 3, 1965, in Cascade County, Great Falls, Montana, petitioner was convicted of the crime of uttering and delivering a fraudulent check together with a prior felony conviction and was sentenced to 10 years at hard labor in the state prison. The prior felony conviction was received for the crime of obtaining money and property by false pretenses in Fergus County, Lewistown, Montana, on October 27, 1959.
On July 1, 1969, petitioner filed a petition for Writ of Review in the district court of Cascade County which was denied by that court. On July 22, 1969, petitioner, by counsel, appeared before this Court exparte seeking an appropriate writ. On that day this Court issued a show cause order to the attorney general and the warden of the state prison to appear on August 6, 1969, to show cause why relief requested by the petitioner should not be granted. On August 6, 1969, petitioner, by counsel, and the attorney general appeared and oral argument was heard by this Court.
Petitioner's primary contention is that his constitutional rights to due process were violated in the earlier felony conviction in Fergus County and therefore he should not have been charged with a prior felony conviction, activating the Montana recidivist statute. Under section 94-2702, R.C.M.1947, the maximum sentence is 5 years in prison for the crime of uttering a fraudulent check. However, under section 94-4713, R.C.M.1947, the maximum sentence is 10 years where there has been a prior felony conviction.
Petitioner's complaint is based upon his arraignment in Fergus County in 1959 on the prior felony. He asserts, and the mainute records of the district court agree, he was not told that if he could not afford counsel then the State would provide him with one. The minute entry merely states: 'The court informed the defendant of his statutory rights as to counsel, and the defendant waives an attorney.'
The question then becomes whether the court record must affirmatively show that a defendant in an arraignment proceedings must be informed not only that he has the right to counsel, but also that the court will furnish one if he cannot afford counsel.
This Court has followed as controlling precedent the rulings of the United States Supreme Court concerning the procedural rights guaranteed to an accused in a criminal prosecution. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158; Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70.
We discussed the same question posed here in State ex rel. Biebinger v. Ellsworth, 147 Mont. 512, 518, 415 P.2d 728, 731. In that case we held:
'It is the duty of the district court to inform the defendant not only that he has a right to counsel, but that if he is without means to employ counsel that counsel would be provided for him by the State without cost to him.'
Also, in the Biebinger case we quoted with approval from the Cochran case, supra, which in effect said the record must affirmatively show that...
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