Maghe v. State, A--14011

• Decision Date: 14 June 1967
• Docket Number: No. A--14011,A--14011
• Citation: Maghe v. State, 429 P.2d 535 (Okla. Crim. App. 1967)
• Parties: Donald Richard MAGHE, O.S.P. $69750, Petitioner, v. The STATE of Oklahoma, Respondent.
• Court: United States State Court of Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 535

429 P.2d 535

Donald Richard MAGHE, O.S.P. $69750, Petitioner, v.The STATE of Oklahoma, Respondent.

No. A--14011.

Court of Criminal Appeals of Oklahoma.

June 14, 1967.

Syllabus by the Court

1.When a defendant, who is free on bail and has been provided sufficient notice of his trial date, fails to appear for trial the delay caused in his being tried is result of defendant's failure, and may be 'good cause to the contrary' as referred to in the statute.22 Okl.St.Ann. § 812.

2.When the State is ready to proceed to trial on the date set therefor, and defendant fails to appear for his trial, without providing justifiable reasons to the satisfaction of the trial judge, he waives any complaint about not being tried during that same term of court; and when such occurs during the court term in which the indictment or information is filed, the next following term of court becomes the first term, in which the indictment or information is triable, as referred to in the statute.22 Okl.St.Ann. § 812.

3.The trial judge did not abuse his discretion when he sentenced defendant on the day following his trial, and delivered him to the penitentiary in order that he might have better supervision and medical care, knowing defendant had attempted to take his own life the previous night.

4.Generally, any law passed after commission of offense for which party is being tried is an 'ex post facto law,' when it inflicts a greater punishment than the law annexed to the crime at time it was committed, or alters situation of accused to his disadvantage.

Original proceeding in which petitioner seeks post conviction appeal.Appeal granted, and sentence modified from not less than five nor more than fifteen years, to seven and one-half years imprisonment.

Donald Richard Maghe, pro se.

G. T. Blankenship, Atty. Gen., Hugh H. Collum, Asst. Atty. Gen., for respondent.

BRETT, Judge.

This is an original proceeding in which petitioner, Donald Richard Maghe, is seeking a post conviction appeal, contending that certain of his constitutional rights, as well as his right to an appeal, were denied him at his trial.

Petitioner was convicted in Okmulgee County for the crime of larceny of an automobile after former convictions of felonies.He was tried in Superior Court before a jury, which found him guilty and sentenced him under the 'Indeterminate Sentence Act'(57 Okl.St.Ann. § 353), to serve not less than five and not more than fifteen years in the state penitentiary.Judgment and sentence was passed January 31, 1964.

Petitioner first applied to this Court for a writ of habeas corpus, which was denied September 30, 1964, for the reason this Court possessed no authority, in a habeas corpus proceeding, to inquire beyond the jurisdiction of the trial court.At that time the statutes contained no provision for post conviction appeals.See: Maghe v. Page, Okl.Cr., 395 P.2d 655.

Thereafter petitioner filed his petition for writ of habeas corpus in the United States District Court, Eastern District of Oklahoma, which writ was denied.Petitioner then appealed to the United States Circuit Court, Tenth Circuit, 356 F.2d 644.That Court denied the writ, but remanded the matter to the District Court, for the reason petitioner had not exhausted his remedies in the State courts.

Between the time petitioner's first petition was considered by this Court, and the time his appeal reached the United States Circuit Court, the Oklahoma Legislature passed legislation providing for 'Post Conviction Appeals.'(Tit. 22 Okl.St.Ann. § 1073.)In accordance with the statute, such appeal is subject to sufficient showing that any constitutional right, related to the right of appeal, has been denied the petitioner.In this instance, petitioner alleges, among other things, that he was denied his constitutional right to a speedy trial, and that he was denied effective assistance of counsel, which resulted in the denial of his appeal.

Petitioner was charged in the justice of the peace court of the Hon. C. H. Inglish, on February 25, 1963.He was provided court-appointed counsel, and was given a preliminary hearing on February 28, 1963, before the same justice of the peace, and was bound over to stand trial in the Superior Court of Okmulgee County for the offense of larceny of an automobile.His bail was set at $2500.He furnished sufficient bond and was released from jail.Mr. Richard A. Hays was appointed by the court to serve as petitioner's attorney.

On March 5, 1963 the county attorney filed a two-stage information in the Superior Court, charging petitioner with the crime of larceny of an automobile, after former convictions of felonies.The court minute shows that petitioner was arraigned in the Superior Court on March 12, 1963, with his court-appointed counsel present.Petitioner waived reading of the information, was served a copy of the same, and entered a plea of not guilty.Petitioner was released on his same bond, and his trial was set for March 19, 1963.

On the day set for trial, petitioner failed to appear.The court forfeited his bond, and issued a bench-warrant for his arrest.The following month, on April 22, 1963, petitioner voluntarily surrendered himself to the county sheriff, and was placed in the county jail.

On May 1, 1963petitioner appeared in the Superior Court with his court-appointed counsel, and a new bail was set at $5000.At that hearing his court-appointed counsel, Richard A. Hays, requested to withdraw from petitioner's case, which request was granted by the court.Insofar as petitioner was unable to post the new bail, he was remanded to the county jail, where he remained until after his trial, when he was transported to the state penitentiary.

The record is clear from the beginning that petitioner was considered to be an indigent defendant, notwithstanding the fact that he was granted bail.The court minute for May 1, 1963, recorded in Book 5, page 618, recites as follows:

'State of Oklahoma appeared by Assistant County AttorneyW. C. Alley.Defendant appeared in person and by his court appointed attorney, Richard A. Hays.As a result of forfeiture of first Bond because of failure to appear for trial, new Bond is set in the amount of $5000.

'Attorney, Richard A. Hays, asks permission to withdraw as attorney for said defendant; whereupon Court allowed his withdrawal from the case at this time.Another attorney will be appointed at a later date in time to prepare for next term.'

The record before this Court is not clear when petitioner's new attorney was appointed.However, petitioner states in his petition filed in the United States District Court, and he testified at that hearing, that Mr. Jack Scott was appointed to serve as his defense counsel in October, 1963.

On January 30, 1964petitioner's trial was commenced before a jury, which found him guilty that same day.During the night of January 30, petitioner slashed his wrists in an effort to take his life.The following morning, January 31, 1964, petitioner was taken before the Superior Judge, who passed judgment and sentence.While passing judgment and sentence, the trial judge stated that he was doing so to assure that petitioner could be transported to the state penitentiary, 'in order that he may have proper supervision and medical care.'

Petitioner's first complaint is that his constitutional right to a speedy trial was denied him, insofar as he surrendered himself to the sheriff on April 22, 1963, and was not tried until the following January 30, 1964.

Under ordinary circumstances, petitioner's contention might be admitted, for Title 22 Okl.St.Ann. § 812 provides generally that a defendant must be tried during the next term of court after the information is filed, except when the trial is postponed upon defendant's application.Ordinarily, such a postponement results from some positive action taken by the defendant, i.e., the filing of some instrument which requests delay of trial, for defendant's benefit.In the instant case, however, no such action is evident.To the contrary, petitioner was granted bail and was permitted freedom, under the terms of that bail, notwithstanding the fact that he was an indigent defendant.However, when the time came for his trial, During the same term of court in which the information was filed, petitioner failed to report to stand trial.Therefore, with reference to that first term of court, we can only conclude that any delay caused was the result of the defendant's (petitioner herein) actions alone.The State was ready and attempted to commence the trial, but was unable to do so because of the defendant's absence.

Considering the specific statute, Title 22 Okl.St.Ann. § 812, provides:

'If a defendant, prosecuted for a public offense, whose trial has not been postponed upon his application, is not brought to trial at the next term of court in which the indictment or information is triable after it is filed, the court must order the prosecution to be dismissed, Unless good cause to the contrary be shown.'(Emphasis supplied.)

Concerning the application of the above section of the statute, this Court in Pickle v. Bliss, Okl.Cr., 418 P.2d 69, 72 said:

'The burden was on the defendant, in support of his motion to dismiss, To show that the laches was on the part of the state through its prosecuting officers; otherwise the presumption is that the delay was caused by or with the consent of the defendant himself, and when on bail he must demand trial or resist the continuance of the case from term to term.'

See alsoPayne v. State, Okl.Cr., 388 P.2d 331.

In this case, the record itself is sufficient to show 'good cause to the contrary.'Petitioner has not contended that he did not know of the trial date.And even if he had, the responsibility is upon the defendant, when he is free on bail, to assure that his defense counsel and his bail bondsman know of his whereabouts at all times,...