State v. Roy

• Decision Date: 21 June 1963
• Docket Number: No. 38942,38942
• Citation: 266 Minn. 6,122 N.W.2d 615
• Court: Minnesota Supreme Court
• Parties: STATE of Minnesota, Respondent, v. Marvin Kenneth ROY, Appellant.

Page 615

122 N.W.2d 615

266 Minn. 6

STATE of Minnesota, Respondent, v. Marvin Kenneth ROY, Appellant.

No. 38942.

Supreme Court of Minnesota.

June 21, 1963.

Rehearing Denied July 12, 1963.

Syllabus by the Court.

1. While it is better practice to conform to the letter of the arraignment statutes, failure to do so does not go to the court's jurisdiction. Portions of transcript in the instant case indicate substantial compliance with the statutory mandate.

2. Errors of law may not be reviewed by writ of error coram nobis since they are a part of the record and not extrinsic to it. Errors of law which occurred when petitioner was represented by competent counsel would be properly raised on appeal.

3. Petitioner, by his plea of guilty, while represented by counsel, admitted all facts well pleaded.

4. Petitioner, in failing to pursue his rights with reasonable diligence, is barred.

Marvin Kenneth Roy, pro se., Mitchell & Pierce, Minneapolis, for appellant.

Walter F. Mondale, Atty. Gen., Charles E. Houston, Sol. Gen., St. Paul, George Scott, County Atty., Theodore R. Rix, Asst. County Atty., Minneapolis, for respondent.

NELSON, Justice.

Appeal from an order of the District Court of Hennepin County dismissing a petition for writ of error coram nobis.

An information was filed in said court September 27, 1954, charging petitioner with the crime of forgery in the second degree. He appeared for arraignment on the same date. The record discloses the following proceedings:

'MR. DRETCHKO: The state moves the arraignment of this defendant.

'THE CLERK: An Information has been filed against you under the name of Marvin K. Roy. What is your middle name?

'MR. ROY: Kenneth.

'THE CLERK: Charging you with the crime of forgery in the second degree on or about the 16th day of September, 1954, in the city of Minneapolis, Hennepin County. What is your birth date?

'MR. ROY: April 20, 1934.

'THE CLERK: Do you have an attorney?

'MR. ROY: No.'

On examination petitioner said that he had no money with which to retain an attorney and the court forthwith appointed Mr. Lewis Lohmann, public defender, to represent him. The court also entered a plea of not guilty for petitioner. On September 28, 1954, petitioner appeared with counsel and withdrew his prior plea of not guilty and entered a plea of guilty as charged. The matter was then referred for presentence investigation.

On October 26, 1954, petitioner again appeared and after examination by the court was sentenced to the custody of the Youth Conservation Commission at St. Cloud for the maximum term prescribed by law or until discharged by due course of law or competent authority. He was paroled, later arrested, and on September 12, 1960, was found guilty of assault in the second degree and sentenced to a maximum term of three years in the state penitentiary, said sentence to commence at the expiration of the prior sentence.

This appeal is based on alleged noncompliance with the requirements of Minn.St. 630.10 and 630.11.

Section 630.10 provides:

'If the defendant shall appear for arraignment without counsel, he shall be informed by the court that it is his right to have counsel before being arraigned, and shall be asked if he desires the aid of counsel.'

Section 630.11 provides:

'The arraignment shall be made by the court, or by the clerk or county attorney under its direction, and shall consist in reading the indictment to the defendant, and delivering to him a copy thereof and of the endorsement thereon * * *.'

Petitioner's principal contention after an interval of more than eight years is that the clerk of the district court at the time of arraignment, failed to fully read the information to him so as to inform him of the crime with which he was charged. However, the record of the court's questions and petitioner's answers at the presentence examination shows that he fully understood the nature of the crime with which he was charged. A portion of the record reads as follows:

'Q Now, this is forgery in the second degree. This is in connection with a check which you made out. This check was a check for $15.00, did you write that check?

'A Yes, I passed it, yes, I wrote it.

'Q Who made it out?

'A I did.

'Q And you made out a check, you made out the check and signed the name, G. S. Stone?

'A Yes.

'Q Then there was an endorsement, Marvin K. Roy, 4212 Clark Avenue?

'A Yes.

'Q You passed some other checks, didn't you?

'A Yes.

'Q Did you cash one at Donaldson's and using the name, Charles A. Litfich?

'A Yes, I don't know which department it was.

'Q Did you cash a check at Dayton's using the name, A. J. Whittier?

'A Yes.

'Q Of course, it goes without saying that you knew that that was wrong, of course, didn't you? There isn't any question about that?

'A No.'

1. The foregoing admissions completely negate petitioner's allegations. The portions of the transcript set forth above indicate substantial compliance with the statutory mandate. See, State ex rel. Adams v. Rigg, 252 Minn. 283, 89 N.W.2d 898, certiorari denied, Adams v. Rigg, 358 U.S. 899, 79 S.Ct. 224, 3 L.Ed.2d 149. We have repeatedly held that, while it is better practice to conform to the letter of the arraignment statutes, failure to do so does not go to the court's jurisdiction. State v. McDonnell, 165 Minn. 423, 206 N.W. 952; State ex rel. Schwanke v. Utecht, 233 Minn. 434, 47 N.W.2d 99.

2--3. In his brief petitioner proposes that his application for writ of error coram nobis is proper because he--

'* * * is precluded from using the writ of habeas corpus in that the judgment and sentence which he attacks is now satisfied. He is presently serving a three year sentence imposed subsequent to the case in issue.'

A determination of which of the two sentences he is serving would be immaterial, for petitioner is mistaken in his remedy. Only recently we exhaustively considered the function of the writ of error coram nobis, and in doing so, fully and finally declared its purpose. In State v Tellock, 264 Minn. 185, 194, 118 N.W.2d 347, 352, we stated:

'* * * If the petition fails to state an error of fact which, if brought to the attention of the court, could have led to a different judgment, it is insufficient to invoke the writ. Errors of law may not be reviewed by the writ since they are a part of the record and not extrinsic to it.' (Italics supplied.)

3. On this appeal petitioner alleges only errors of law which would properly have been raised on appeal. Further, by his plea of guilty while represented by counsel, petitioner admitted all facts well pleaded. State v. Cage, 264 Minn. 196, 117 N.W.2d 919; State ex rel. Savage v. Rigg, 250 Minn. 370, 84 N.W.2d 640, certiorari denied, Savage v. State, 355 U.S. 918, 78 S.Ct. 348, 2 L.Ed.2d 277.

4. Nearly 9 years have now elapsed since the original arraignment took place. The judgment of conviction, dated October 26, 1954, states that--

'* * * the said defendant Marvin K. Roy on the 27th day of September A.D.1954 being then before said Court in open Court in his own proper person gave his true name as Marvin Kenneth Roy and was then and there duly arraigned upon said information and thereupon pleaded not guilty. Thereafter and on the 28th day of September, 1954, Deft. withdrew his plea of not guilty and entered a plea of guilty as charged, before the Hon. D. E. LaBelle, Judge.'

We have held that petitioners must pursue their rights with reasonable diligence or be barred. See, State ex rel. Gaulke v. County of Winona, 259 Minn. 183, 185, 106 N.W.2d 560, 562, certiorari denied, Gaulke v. State, 365 U.S. 848, 81 S.Ct. 816, 5 L.Ed.2d 816.

It is suggested in the dissenting opinion that we order a hearing in this case to determine whether or not petitioner was in fact furnished with a copy of the information and whether it was read in open court in his presence or the reading waived. The judgment of conviction, heretofore quoted, establishes prima facie that the arraignment was regular and in compliance with the statute. Petitioner's bald assertions in his brief, without more, are insufficient to overcome the presumption of regularity which attaches to the judgment of a court. State ex rel. May v. Swenson, 242 Minn. 570, 574, 65 N.W.2d 657, 660; People ex rel. Welch v. Slattery, 179 Misc. 899, 38 N.Y.S.2d 11; Smith v. Lawrence (5 Cir.), 128 F.2d 822, certiorari denied, 317 U.S. 633, 63 S.Ct. 62, 87 L.Ed. 510.

We fail to see what useful purpose would be served in granting a hearing on this petition. The information the dissent would grant a hearing to obtain could have been supplied by an affidavit accompanying the petition or by an affidavit on this appeal, had petitioner chosen to furnish one. All matters here presented are unsubstantiated allegations and assertions, thinly supported by a poorly composed record.

While the record here does not indicate formal compliance with the statute, ordering further action in this matter would, in the words of Mr. Justice Matson in State ex rel. Schwanke v. Utecht, 233 Minn. 434, 436, 47 N.W.2d 99, 101, be 'exalting the shadow of a meaningless technicality for substance.' In that case appellant alleged that he was sentenced without a plea of guilty or without a verdict of guilty by the jury. In affirming the conviction the court made the following statement (233 Minn. 436, 47 N.W.2d 101):

'* * * Although the record may not contain, as it should, a formal plea of guilty, an adjudication of guilt based on such a plea is not subject to attack if the record of the proceedings leading to the sentence of the accused unmistakably establishes that he did in fact plead guilty.'

Since the purpose of formal arraignment is to inform a defendant of the nature and elements of the crime with which he is charged, it is sufficient if the record indicates substantial compliance resulting in notice. While courts should strive for procedural perfection, our decisions concerning arraignment have never demanded it. Arraignment, in this state, is not...