State v. O'Neill, Cr. N
| Decision Date | 26 October 1962 |
| Docket Number | Cr. N |
| Citation | 117 N.W.2d 857 |
| Parties | STATE of North Dakota, Respondent, v. Vernon O'NEILL, Appellant. o. 303. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. Section 13 of the North Dakota Constitution, defining rights of the accused in a criminal prosecution, provides that the party accused shall have the right 'to appear and defend in person and with counsel.'
2. If a defendant in a criminal prosecution appears for arraignment without counsel, he must be informed by the court of his right to counsel before being arraigned and must be asked if he desires the aid of counsel. 'If he desires, and is unable to employ, counsel, the court must assign counsel to defend him.' Section 29-13-03, NDCC.
3. Where the court before arraignment advises the accused that it is his right to have a lawyer during all of the proceedings and the accused repeatedly tells the court that he does not want a lawyer, the court has fulfilled his duty with respect to advising the accused of his right to counsel under the provisions of Section 13 of the North Dakota Constitution and Section 29-13-03, NDCC, formerly Section 29-1303, NDRC 1943.
4. For reasons stated in the opinion, it is held that the petitioner waived his constitutional right to counsel, that the waiver was freely and understandingly made, and that he was not deprived of his right to counsel in violation of the due process clause of the Fourteenth Amendment to the Constitution of the United States.
Vernon O'Neill, pro se, Austin & Christensen, Bismarck, on brief, for appellant.
Leslie R. Burgum, Atty. Gen., of North Dakota, and E. T. Christianson, State's Atty. of Pembina County, for respondent.
This is an appeal from an order of the District Court of Pembina County dated February 28, 1962, denying a petition of Vernon O'Neill for a writ of error coram nobis. The petitioner alleges that he pleaded guilty, on September 25, 1944, to the crimes of grand larceny and robbery in the first degree, that he was on that day sentenced to imprisonment in the penitentiary to a term of from one to five years for each crime, that he was not represented by counsel at any stage of the proceedings, nor did he intelligently, knowingly and understandingly waive the services of counsel. He further states that he did not fully realize the seriousness and possible consequences of the charges against him and that he had been advised by the sheriff that an attorney was not necessary, and:
He also alleges that the failure of the court to properly advise him with respect to his right to counsel constitutes a violation of the Constitution of the United States and of the State of North Dakota which resulted in a negation of due process of law, with the result that his plea of guilty and sentence are a mullity. The petition also states that the petitioner has completed the sentences imposed in North Dakota but is presently imprisoned as a result thereof. An explanation of this statement appears from the transcript attached to the petition and from the petitioner's brief.
On September 17, 1944, the petitioner and Merle Robinson were apprehended, and their questioning implicated Ed Thoreson and Tim Miller. The four were brought before a justice of the peace upon complaints charging them with grand larceny and robbery in the first degree. They were bound over to the district court on both complaints. The justice's certification in the grand larceny case states:
'September 19, Defts appeared for hearing, complaint was read and Defts advised of their rights, whereon they each pleaded guilty, and waiving bond, were placed in Sheriff's care until their case is disposed of by Dist Judge.'
A similar certification was made in the robbery case. The grand larceny case involved the theft of $387.80 worth of wheat from a farmer's granary. The robbery case involved the forcible robbery of an aged man, who lived alone, of $25 and a check.
On September 25, 1944, the four defendants were arraigned in the District Court of Pembina County on informations charging the two crimes. The first arraignment was for robbery. The defendants were asked their names and after response the state's attorney asked for slight changes in the first names of two of the defendants. The transcript shows that the following then took place:
'Have either one of you any legal cause or grounds to show why sentence and punishment should not be imposed at this time?'
Then the transcript shows:
'(Each one of the defendants states he has no legal cause or grounds to show why sentence should not be imposed.)'
On the second arraignment, which was for grand larceny, the court said:
Each defendant then individually answered that he did not want a lawyer.
The record also contains a written confession, signed by each of the defendants, setting forth in some detail how the two crimes were committed. At the conclusion of the second arraignment, the court questioned the defendants extensively regarding their backgrounds and activities, including family and church relationships. He sentenced each of the defendants in each case for an indeterminate sentence of not less than one nor more than five years, to begin at noon on September 25, 1944. Thus the sentences ran concurrently.
According to petitioner's brief, which he prepared and signed, he served some eleven months in prison and the balance of his sentence on parole from which he was subsequently discharged. He explains why he is attacking the validity of the sentences after they have been served. It appears that in the state of Minnesota he pleaded guilty to a charge of larceny and admitted his prior convictions in North Dakota. Under the Minnesota law, M.S.A. Sec. 610.28 provides longer sentences for second offenses than for first offenses. He was sentenced to an indeterminate sentence of 0 to 20 years instead of 0 to 10 years which could have been the maximum for a first offense. He was placed on probation. The probation was revoked and he is now in prison at Stillwater, Minnesota.
This proceeding was instituted by a motion noticing a hearing on his petition for a writ to be heard on January 29, 1962.
No question is raised as to procedure. This court has considered challenges to judgments of conviction on jurisdictional grounds after the time for appeal had expired in the following case: State v. Magrum, 76 N.D. 527, 38 N.W.2d 358; State v. Malnourie, N.D., 67 N.W.2d 330; State v. Whiteman, N.D., 67 N.W.2d 599. The defendant relies heavily upon the Magrum and Whiteman cases. In both of these cases the defendant pleaded guilty to murder in the first degree without benefit of counsel. In each case we held that the plea of guilty and waiver of counsel was not freely and understandingly made and that the judgments of conviction were therefore void. The records in those cases disclose circumstances materially different from those now before us.
When Magrum was sentenced, he was a minor 19 years of age. One Carl Wilson died late on November 24, 1935, from a gunshot wound previously inflicted. Magrum was taken into custody on November 26, but held incommunicado by the sheriff as a material witness. On several occasions during the afternoon and early evening the accused's brother was denied permission to see him. At eight o'clock that evening he was brought before the magistrate upon a complaint charging him with murder in the first degree and bound over to the district court. An information was immediately filed and he was arraigned at nine o'clock the same evening in the district court. The court asked Magrum, after informing him that he was charged with murder in the first degree,
'Do you also understand that you have a legal...
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