Lovato v. Cox, 7996.
| Decision Date | 03 May 1965 |
| Docket Number | No. 7996.,7996. |
| Citation | 344 F.2d 916 |
| Parties | Joe V. LOVATO, Appellant, v. Harold A. COX, Warden of New Mexico State Penitentiary, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
M. Dee Biesterfeld, Denver, Colo., for appellant.
L. D. Harris, Sp. Asst. Atty. Gen., Albuquerque, N. M. (Boston E. Witt, Atty. Gen. of New Mexico, with him on the brief), for appellee.
Before MURRAH, Chief Judge, and LEWIS and SETH, Circuit Judges.
The appellant, a prisoner confined in the New Mexico State Penitentiary, filed petition for a writ of habeas corpus with the United States District Court for the District of New Mexico, asserting that he was deprived of his right to counsel during the preliminary state proceedings and during his arraignment and sentencing. The United States District Court held a hearing during the course of which the appellant testified. The court denied the petition and appellant has taken this appeal.
The record shows that the appellant was arrested, jailed, and the day following was told that he could be charged under the habitual criminal statute. The appellant testified that the officer asked him whether he would be willing to sign a statement, to which the appellant answered that he would, and such a statement was thereupon signed. The appellant also testified as to his conversation with the officer at the time the statement was signed, including a statement by appellant to the effect that he could not be charged with breaking and entering because he had keys to the filling station in question, and he opened the doors and walked in. Appellant testified that the police officer then told him that the charge would be grand larceny and embezzlement, and this was the ultimate charge. The appellant then appeared before Justice of the Peace Cortez who gave him two weeks to make restitution. It appears that he was not able to make restitution and thereafter came before a second Justice of the Peace, who upon his appearance told him that he was charged as above mentioned, and asked him how he wished to plead. Appellant then entered a plea of guilty. Appellant was returned to jail and thereafter appeared before the District Court of Santa Fe County for arraignment. The appellant had no attorney up to this point, and had none at the time of his arraignment. At arraignment the court asked the appellant whether he had an attorney representing him, to which the appellant replied that he did not. The court stated he was entitled to twenty-four hours' notice before he was required to plead and that in such time he might engage an attorney. The district attorney advised the court notice was waived, and appellant stated that he had so waived notice, and he was ready to proceed. The court then advised appellant that the crimes charged were felonies, and that he would be entitled to a jury trial, that the state had the burden of proving him guilty beyond a reasonable doubt, and that he was entitled to be represented by counsel. The appellant responded that he understood this to be the case. The court asked him whether he had contacted an attorney, and he said he had not. He was asked why he had not done so, and appellant stated, "I admit I committed the crime and I don't see any sense in getting in contact with an attorney." The court then stated, "You don't want to have an attorney, or engage the services of an attorney?", to which the appellant responded, "No, sir." The court then stated that the record would show that after appellant was advised of his right that he had waived his right to counsel, and to the appellant, the court said, "Do you understand what you are doing?", to which the appellant replied, "Yes, I do." The appellant thereupon pleaded guilty, and in response to questions advised the court of his two previous felony convictions. The court thereupon asked for a presentence report. About two weeks later, the appellant appeared for sentencing at which time the court stated that a plea of guilty had been entered and asked the appellant whether he wished to make any statement. The appellant said he did not wish to make a statement, the court then reminded the appellant again of his plea of guilty, and in referring to the time of the entry of the plea stated, "And at that time you stated you understood about your rights and did not want the services of an attorney; is that correct?", to which the appellant replied, ...
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Nielsen v. Turner
...only, but the sole evidentiary basis claimed for them—involvement in previous criminal proceedings—is questionable. In Lovato v. Cox, 344 F.2d 916 (10th Cir. 1965), the defendant was not expressly advised that if he could not afford counsel the court would appoint counsel for him. The feder......
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McGhee v. Sigler
...426 F.2d 769 (C.A.3rd Cir. 1970); Losieau v. Sigler, supra; Nielsen v. Turner, 287 F. Supp. 116 (U.S.D.C. Utah 1968); Lovato v. Cox, 344 F.2d 916 (C.A.10th Cir. 1965); Irving v. Breazeale, 400 F.2d 231 (C.A.5th Cir. 1968); Schram v. Cupp, 425 F.2d 612 (C.A.9th Cir. 1970); Meller v. Swenson,......
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State v. Gilbert
...decision of the accused, does not require any particular ritual or form of questioning. See Bouldin v. Cox, supra; Lovato v. Cox, 344 F.2d 916 (10th Cir. 1965); Carpentier v. Lainson, 248 Iowa 1275, 84 N.W.2d 32, 71 A.L.R.2d 1151 (1957); Sandoval v. Tinsley, The order denying the motion sho......
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Shawan v. Cox, 8107.
...to support his contention that there was a waiver of the right of counsel, Sandoval v. Tinsley, 10 Cir., 338 F. 2d 48 and Lovato v. Cox, 10 Cir., 344 F. 2d 916. As to these cases, suffice it to say, that in each of them there was an understandable explanation made to the accused in open cou......