State v. Miles, 42107

• Decision Date: 17 January 1979
• Docket Number: No. 42107,42107
• Citation: 274 N.W.2d 153,202 Neb. 126
• Parties: STATE of Nebraska, Appellee, v. Lawrence C. MILES, Appellant.
• Court: Nebraska Supreme Court

Page 153

274 N.W.2d 153

202 Neb. 126

STATE of Nebraska, Appellee, v. Lawrence C. MILES, Appellant.

No. 42107.

Supreme Court of Nebraska.

Jan. 17, 1979.

Syllabus by the Court

A court may properly deny an evidentiary hearing upon a motion to vacate a conviction filed under section 29-3001, R.R.S.1943, upon a determination after an examination of the files and records of the case that the petitioner is entitled to no relief.

John F. Steinheider, Nebraska City, for appellant.

Paul L. Douglas, Atty. Gen., Ralph H. Gillan, Asst. Atty. Gen., Lincoln, for appellee.

Heard before SPENCER, C. J., Pro Tem., BOSLAUGH, McCOWN, CLINTON, BRODKEY and WHITE, JJ., and RIST, District Judge.

BRODKEY, Justice.

Defendant, Lawrence C. Miles, has appealed to this court from an order of the District Court for Otoe County, Nebraska, denying his motion filed pursuant to the Nebraska Post Conviction Act to vacate and set aside his conviction for the offense of burglary following his plea of guilty to that charge, and his subsequent sentence of 5 years imprisonment in the Nebraska Penal and Correctional Complex. Defendant was arrested and charged with that crime on April 19, 1977, and on that same day waived preliminary hearing and court-appointed counsel in the county court of Otoe County, and was bound over to District Court. He was arraigned on April 20, 1977, and pled guilty to the charge, following extensive and thorough questioning by the court. The defendant was not represented by counsel, either private or court-appointed, at his arraignment nor at his subsequent sentencing on May 6, 1977, although it is clear from the record that the court, as will hereafter be made apparent, repeatedly informed him as to his right to counsel and inquired whether he wished a court-appointed attorney, which defendant refused. However, on May 6, 1977, immediately following defendant's sentencing, the court did appoint counsel for him.

Thereafter, defendant and his counsel appealed to this court in case No. 41483, alleging that the trial court erred in not appointing counsel to represent defendant at all critical stages of the criminal proceedings, that defendant did not knowingly and intelligently waive his right to counsel, and did not knowingly and intelligently plead to the charges against him. Also included in his assignments of error was the claim that the court erred in not determining that defendant's intoxication was to such a degree that it could be a defense to the crime of burglary, and also that the sentence imposed upon the defendant was excessive. Thereafter, on November 17, 1977, this court sustained a motion for summary affirmance filed by the State of Nebraska pursuant to Rule 20-A(2) of the Revised Rules of the Supreme Court, 1977, because of defendant's failure to file a motion for new trial within 10 days after the verdict was rendered as required by section 29-2103, R.R.S.1943.

On March 1, 1978, the defendant, acting pro se, filed his motion to vacate and set aside his conviction and sentence under the Nebraska Post Conviction Act, alleging that he was denied his right to counsel at critical stages of the proceedings against him, and that he did not knowingly and intelligently waive his right to counsel. On March 14, 1978, the District Court appointed the same counsel who represented defendant in his prior appeal to this court to represent defendant in the post conviction proceeding. On March 17, 1978, the court, after reciting that it had examined the record, denied an evidentiary hearing and scheduled the matter for argument to the court on April 7, 1978. On that date, counsel for both parties appeared and argued the motion to vacate the sentence, at which time the court received in evidence certain exhibits and the bill of exceptions, and took the matter under advisement. Thereafter, on April 11, 1978, the court entered an order overruling defendant's post conviction motion to vacate the sentence, and defendant thereafter perfected his appeal from that order to this court.

In his brief on appeal in this court, counsel for defendant alleges as assignment of error: "The District Court committed reversible error in denying the defendant's motion for post conviction relief and in failing to vacate and set aside the judgment of his conviction and sentence and grant him a new trial." Although it is readily apparent the above assignment of error is couched in very general terms, it is clear from a reading of defendant's brief that the specific matters about which he complains involve the failure of the trial court to grant an evidentiary hearing on defendant's motion to vacate his sentence; insufficient time elapsed between defendant's appearance in county court on April 19, 1977, and his arraignment in District Court on April 20, 1977, which defendant claims is in violation of Standard 1.3(b) of the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty (1968); defendant's arraignment was deficient in that he was not advised that as an indigent he had a right to counsel at no expense to himself; and his right to counsel was never adequately explained to or waived by him nor was his possible defense of intoxication adequately pursued by the court. In his brief defendant argues: "This record does not show a man who was aware of the right to court appointed counsel. This record does not show a man aware of possible defense to a given crime. This record shows a man deprived of a very basic constitutional and statutory right, that of right to counsel, even if indigent." However, defendant also states in his brief: "The court at arraignment, took some pains to completely and thoroughly explain all of the defendant's rights to him, except the right to counsel and court appointed counsel if it were determined he were an indigent." The law is well established in this state that a court may properly deny an evidentiary hearing upon a motion to vacate a conviction filed under section 29-3001, R.R.S.1943, upon a determination after an examination of the files and records of the case that the petitioner is entitled to no relief. State v. Fincher, 189 Neb. 746, 204 N.W.2d 927 (1973); State v. LaPlante, 185 Neb. 816, 179 N.W.2d 110 (1970); State v. Pilgrim, 184 Neb. 457, 168 N.W.2d 368 (1969). The record is clear that the trial court, before denying an evidentiary hearing, did examine the records of the case, and had before it the verbatim record of defendant's arraignment and sentencing. Whether the trial court was correct in denying the defendant an evidentiary hearing on his motion clearly turns upon the validity of defendant's plea of guilty to the charge of robbery, and the sufficiency of the arraignment of the defendant. As previously stated, defendant concedes that the court at the arraignment took pains to completely and thoroughly explain all the defendant's rights to him, "except the right to counsel and court appointed counsel if it were determined that he were an indigent."

We have before us the official record of the arraignment of the defendant, and rather than paraphrase the contents of that arraignment, we deem it advisable to set forth herein, verbatim, the response to those questions, particularly with reference to defendant's right to and offer of appointment of counsel: "EXAMINATION BY THE COURT: Q Now Mr. Miles, there's been an information filed here this morning which charges you with the criminal offense of burglary. Are you familiar with that? A Yes, your Honor, I am. Q Now the other matters in the file indicate that a complaint was filed in the county court on the 19th day of April, so that would have been yesterday. The complaint was filed there and the record indicates that you waived your right to have an attorney represent you and to a preliminary hearing. Is this correct as to what happened in that court? A Yes, it is, your Honor. * * * Q And what I want to get to here, do you understand that you have the right to have an attorney represent you not only in this proceeding, but at all stages of the proceeding? A Yes, sir, I understand that. Q Can you procure an attorney through your own means? A No, Sir. Q Would you like to have a court-appointed attorney? A No, sir, I wouldn't. * * * Q Well I doubt that even an attorney would come into court where he's charged with a felony and waive his rights to counsel. Now I want you to fully understand that this is a...