Martinez v. State

• Decision Date: 28 March 1968
• Docket Number: No. 9953,9953
• Citation: 438 P.2d 893,92 Idaho 148
• Parties: Jose MARTINEZ, Petitioner-Appellant, v. STATE of Idaho, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 893

438 P.2d 893

92 Idaho 148

Jose MARTINEZ, Petitioner-Appellant, v. STATE of Idaho, Defendant-Respondent.

No. 9953.

Supreme Court of Idaho.

March 28, 1968.

Rehearing Denied April 16, 1968.

Cosho & Humphrey, Boise, for appellant.

Allan G. Shepard, Atty. Gen., and Roger B. Wright, Deputy Atty. Gen., Boise, for appellee.

McFADDEN, Justice.

Appellant, an inmate of the Idaho State Penitentiary, appeals from a judgment of the district court quashing a writ of habeas corpus previously issued. Appellant, in the proceedings in the district court, was unrepresented by an attorney.

On August 9, 1963, appellant was arraigned before the District Court of Jefferson County in what was then the Twelfth Judicial District. Appellant, who was unrepresented by counsel at the arraignment, waived the right to an attorney and plead guilty to the charge of rape and on August 13, 1963, was sentenced to a term of life imprisonment in the penitentiary.

Appellant petitioned the Ada County District Court for a writ of habeas corpus, which was granted May 13, 1966. The state filed its return to the writ setting forth the Jefferson County judgment and conviction as the authority for holding appellant. Hearing was held in the Ada County District Court on May 31, 1966, and at the request of the state, the cause was continued until August 30, 1966, for further evidence to be introduced by the state. At the August 30 hearing, various instruments were offered by the state and admitted, and testimony of the sheriff of Jefferson County and the district judge was adduced.

Following entry of findings of fact and conclusions of law, judgment quashing appellant's writ of habeas corpus was entered. In his petition for the writ of habeas corpus, appellant asserted that he had been denied numerous constitutionally guaranteed rights. In view of the result reached herein, discussion will be confined to only one of his assertions. Appellant contends that he was not informed of his right to have an attorney appointed for him at county expense prior to the time he waived his right to have an attorney, and prior to his pleading guilty. Appellant is a Mexican citizen and the record reflects that he has a limited knowledge of the English language and has no formal education whatsoever.

Dealing with the issue of whether appellant had been advised of his right to counsel, in addition to the testimony of appellant, the Jefferson County Sheriff and the district judge who presided at the arraignment testified as to the proceedings which took place at the arraignment. The judgment of conviction and commitment to the penitentiary as well as court minutes were admitted in evidence, but no transcript of the arraignment proceeding was available to the Ada County District Court because the court reporter was not present to make a record of the proceeding (I.C. § 1-1103), and the court did not require the clerk to take down the testimony at the arraignment (I.C. § R12-608).

Appellant testified at the Ada County hearing that he did not understand what was taking place and that he was not informed of his right to have an attorney appointed to represent him at public expense. However, the arraigning district judge testified that he duly informed appellant of all his rights and took pains to make certain that appellant understood what was occurring. The sheriff's testimony as to what took place at the arraignment supported that of the district judge. The clerk's minute entry recites that 'The Court asked the Defendant if he had an Attorney to which he replied that he did not. He was then asked by the Court if he wanted an attorney and he stated that he did not.'

Upon a felony arraignment before the district court, that trial court has the duty to inform an accused that he has the right to be represented by an attorney and that an attorney will be provided at public expense in the event the accused's indigency makes it necessary. Nester v. State, 92 Idaho 112, 438 P.2d 31 (No. 9864, March 1, 1968); Ebersole v. State, 91 Idaho 630, 428 P.2d 947 (1967); Pharris v. State, 91 Idaho 456, 424 P.2d 390 (1967); Bement v. State, 91 Idaho 388, 422 P.2d 55 (1966); State v. Thurlow, 85 Idaho 96, 375 P.2d 996 (1962).

In Ebersole v. State, supra, this court held that the record therein, which did not include either a minute entry by the clerk of the court or a reporter's transcript, was deficient. The decision was based upon the requirements of I.C. § 1-1103 and constitutional grounds. I.C. § 1-1103 provides: 'The said reporter shall correctly report all oral proceedings had in said court * * *.' I.C. § 1-1104 requires the reporter to 'file the stenographic records and reports made by him with the clerk of the district court * * *.' Without a reporter's transcript in order to establish the record of what took place at the arraignment, resort must be had to the testimony of those present at such arraignment. Clerk's minutes, of necessity, are summary in nature and do not contain all of the details as to what occurred.

Failure to have a reporter's transcript available to the district judge conducting the habeas corpus hearing would ordinarily place that judge in a most perturbing and embarrassing situation. The habeas corpus judge has before him on the one hand, an accused whose testimony by reason of his felony conviction is suspect (I.C. § R9-1209), and on the other hand, the district judge who conducted the arraignment, and the sheriff. At the time of the habeas corpus hearing, the court conducting that hearing must reconstruct what took place months before, and at a time when the memory of specific detail is dimmed. It is to avoid this very dilemma that the legislature has provided the judicial system with court reporters.

When a person, such as the petitioner herein is deprived, through no fault of his own, of the opportunity of affirmatively establishing the facts to demonstrate the legality or illegality of his incarceration, a fundamental lack of fairness in the judicial process is established. Especially is this so, when the legislature has provided the means to establish these facts-availability of a reporter's transcript. Under the facts of this case, with an acused having plead guilty to a felony without the aid and assistance of counsel, and he later asserts a denial of a substantial constitutional right, and the habeas corpus record fails to show a waiver of the recording of the proceedings by the reporter (I.C. § 1-1103), and there is no explanation for the failure to have a record of such proceedings, then there is such a breakdown of the judicial process as to constitute a deprivation of due process within the ambit of the constitutional requirements. See Nester v. State, supra; Ebersole v. State, supra.

The situation presented by this record must be distinguished from that present in Norvell v. State of Illinois, 373 U.S. 420, 83 S.Ct. 1366, 10 L.Ed.2d 456 (1963), wherein the death of the court reporter who took the record made it impossible for the state to funish a transcript to an indigent defendant. But when, as here, lack of a transcript is...