Pharris v. State

• Decision Date: 02 March 1967
• Docket Number: 9865,Nos. 9807,s. 9807
• Citation: 424 P.2d 390,91 Idaho 456
• Parties: Dennis PHARRIS, Plaintiff-Appellant, v. The STATE of Idaho, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 390

424 P.2d 390

91 Idaho 456

Dennis PHARRIS, Plaintiff-Appellant, v. The STATE of Idaho, Defendant-Respondent.

Nos. 9807, 9865.

Supreme Court of Idaho.

March 2, 1967.

Glenn A. Coughlan, of Coughlan & Imhoff, Boise, for appellant.

Allan G. Shepard, Atty. Gen., and Roger B. Wright, Asst. Atty. Gen., Boise, for respondent.

McFADDEN, Justice.

Appellant appealed in Case No. 9807 from the order of the district court denying his petition for a writ of habeas corpus, and in Case No. 9865 from the judgment quashing the writ of habeas corpus issued therein. On appellant's petition, the two appeals have been consolidated for briefing and argument.

The crucial question presented to this court is whether prior to his entry of a plea of guilty to the crime of grand larceny appellant knowingly, competently and intelligently waived his statutory right to the aid and assistance of court-appointed counsel I.C. § 19-1512, ¹ and the right to counsel guaranteed by the Sixth Amendment to the United States Constitution as 'made obligatory upon the States by the Fourteenth Amendment.' Gideon v. Wainwright, 372 U.S. 335, 342, 83 S.Ct. 792, 795, 9 L.Ed.2d 799 (1963).

On February 17, 1964, appellant, then eighteen years old, was arraigned in the District Court of the Eleventh Judicial District for Cassia County, on an information charging him with the crime of grand larceny arising out of the theft of a 1962 Rembler automobile. Appellant purportedly waived the right to counsel and pleaded guilty to the charge. Following a presentence investigation, appellant was placed on probation on April 6, 1964.

Following a complaint of violation of the order of probation, his probation was revoked and appellant was sentenced on July 27, 1964, to a term in the state penitentiary of not to exceed five years.

On November 1, 1965, appellant filed his petition in the Ada County District Court for writ of habeas corpus, which petition was denied (Case No. 9807). On January 24, 1966, appellant again petitioned for writ of habeas corpus, the writ issued (Case No. 9865), and the warden of the state penitentiary made his return. Three hearings were had on this second petition, culminating in findings of fact, conclusions of law and judgment which quashed the writ of habeas corpus previously issued.

Inasmuch as it is the conclusion of this court that the judgment in Case No. 9865 must be reversed, issues presented by appeal in Case No. 98o7 need no further discussion, and the remainder of this opinion will be confined to the proceedings in Case No. 9865.

In the habeas corpus hearings before the Ada County District Court, the reporter's transcript of the arraignment proceedings, the transcript of the proceedings on parole revocation in the Cassia County District Court and the Cassia County Clerk's minute entries in regard to both the arraignment and parole revocation proceedings were admitted into evidence. Also admitted into evidence, over appellant's objection, was a transcript of proceedings involving a burglary charge against appellant before the District Court in Jerome County, which proceedings were held in November, 1963.

The transcript of the proceedings held February 17, 1964, in the Cassia County arraignment on the grand larceny charge reflects the following:

'THE COURT: The State of Idaho vs. Dennis Pharris. Mr. Pharris, it is my duty to advise you that the Prosecuting Attorney for Cassia County has filed his information charging you with the crime of grand larceny, allegedly committed on or about the 13th day of January, 1964, by the theft of a 1962 Rambler automobilc owned by one Rollo Yountz of Heyburn, Idaho. Is Dennis D e n n i § Pharris P h a r r i § your true and correct name?

MR. PHARRIS: Yes, your Honor.

THE COURT: Do you have a lawyer, Mr. Pharris?

MR. PHARRIS: No, I don't.

THE COURT: Do you want one?

MR. PHARRIS: No.

THE COURT: The information will be read to you and a copy delivered to you.

(Information read by the Clerk)

THE COURT: You have just been arraigned, Mr. Pharris. According to the laws of this State you are entitled to a reasonable length of time after arraignment before you can be compelled to enter your plea. That time must not be less than one day. However, that time can be waived and you can enter your plea today, if you wish. You are under no compulsion to waive the time, you are entitled to the delay if you desire it. Do you want to take the time given you by law, or do you wish to waive it?

MR. PHARRIS: I wish to waive it.

THE COURT: And now to the crime charged in the information, that of grand larceny of an automobile allegedly committed on or about the 13th of January, 1964, how do you plead, guilty or not guilty?

MR. PHARRIS: Guilty, your Honor.

THE COURT: How old are you?

MR. PHARRIS: Eighteen.

THE COURT: I understand you have been living with your mother and stepfather in Jerome.

MR. PHARRIS: My mother and father, yes, your Honor.

THE COURT: Mother and father at Jerome?

MR. PHARRIS: Yes, your Honor.

THE COURT: You are in jail now?

MR. PHARRIS: Yes, your Honor.

THE COURT: Pre-sentence investigation will be ordered in this case. * * *.'

Under the existing constitutional and statutory requirement of this state, every person charged with a felony is entitled to be represented by counsel, and if he is unable, because of indigency, to retain his own counsel, counsel must be appointed for him by the court. Idaho Const. Art. 1, § 13; I.C. § 19-1512 and § 19-1513; Bement v. State, 91 Idaho 388, 122 P.2d 55; State v. Thurlow, 85 Idaho 96, 375 P.2d 996 (1962); cf. State v. Poglianich, 43 Idaho 409, 252 P. 177 (1927).

The right to be represented by counsel and to have counsel appointed for an indigent defendant is recognized by decisions of the United States Supreme Court, which hold that the provisions of the Sixth Amendment to the Constitution of the United States guaranteeing to an accused the right to assistance of counsel in both capital and non-capital criminal prosecution are applicable not only in federal prosecutions but also in state prosecutions by reason of the Fourteenth Amendment of the Constitution of the United States. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (held to apply to non-capital cases); Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (held to apply in capital cases). The doctrine discussed in Gideon v. Wainwright, supra, is held to apply retroactively. Doughty v. Maxwell, 372 U.S. 781, 83 S.Ct. 1106, 10 L.Ed.2d 139 and 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650; Berryhill v. Page, 349 F.2d 984 (10th Cir. 1965); Commonwealth ex rel. O'Lock v. Rundle, 415 Pa. 515, 204 A.2d 439 (Pa.1964). Such right to counsel is not dependent upon a request for counsel by the accused. Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 8 L.Ed.2d 70.

It is self evident there was no compliance with the requirements that the accused be advised as to the right to have counsel appointed for him in the event of his indigency. However, the state does assert that appellant had been fully apprised of his right to counsel appointed by the court at public expense, in a prior criminal action before the Jerome County District Court on November 4, 1963, and thus his purported waiver of his right to have counsel appointed was intelligently and knowingly made. The transcript of the record before the Jerome County District Court shows that on that date appellant appeared for arraignment on a charge of first degree burglary. The court in that proceeding inquired if appellant desired an attorney, and upon being advised appellant wished to secure an attorney to represent him but was without funds, the court inquired whether appellant's father had funds to employ an attorney; the court stated:

'I am going to continue all further proceedings in this case until two weeks from today, the 18th of November. During that time both of you young men (appellant and a co-defendant) and your parents are going to have to attempt to raise funds with which to retain your own counsel to represent you. If, at the end of that time and after you have made every serious effort and your parents have done likewise, you are unable to do so then you may report back to Mr. Seeley, your parents may, and sign an affidavit under oath to the effect that it is impossible to furnish counsel for the son.

'* * *.

'* * *. If both parents can, in all honesty, report to Mr. Seeley and sign under oath an affidavit that they cannot appoint counsel then the Court will appoint counsel to represent you, but that is the last expedient. It is your responsibility and your family's responsibility in the first instance to employ counsel. The taxpayers should not be required to do it except as a final last resort. * * *.'

Thereafter the cause was continued, and after counsel was obtained the case was held in abeyance.

The facts before the District Court of Ada County in the habeas corpus proceedings (disclosed by transcript of proceedings in both the Cassia County and the Jerome County District Courts) reflect: first, that before the Cassia County District Court appellant was not advised of his right to have counsel appointed in case he was without funds; second, that even though appellant was advised by the Jerome County District Court that if his parents couldn't raise funds to retain counsel, an affidavit to that effect should be filed, and the Court would then appoint counsel as a last...