State v. Rushford

• Decision Date: 02 April 1968
• Docket Number: No. 1097,1097
• Citation: 127 Vt. 105,241 A.2d 306
• Parties: STATE v. Vermont v. Raymond L. RUSHFORD.
• Court: Vermont Supreme Court

Page 306

241 A.2d 306

127 Vt. 105

STATE v. Vermont v. Raymond L. RUSHFORD.

No. 1097.

Supreme Court of Vermont.

April 2, 1968.

Joseph W. Kozlik, Rutland, for petitioner.

Robert W. West, Rutland, State's Atty., and Alan W. Cheever, Asst. Atty. Gen., for the State.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

SHANGRAW, Justice.

This is an appeal from an order dated July 20, 1967 by the Rutland County Court denying the petitioner's application for post-convictions relief under the provisions of 13 V.S.A. section 7131-7137.

The petitioner is in confinement at the House of Correction under sentences of the Rutland County Court imposed March 17, 1864 following his pleas of guilty to the crimes of forgery. By this proceeding petitioner, in the court below, sought an order to vacate the judgments and sentences thereon entered. The application was denied and the case is in this Court on petitioner's appeal.

On October 11, 1963 the petitioner was arrested on a complaint issued by the Rutland Municipal Court charging him with several crimes of forgery. At the time of his arraignment before that court on October 12, 1963 petitioner was fully informed of his right to be represented by counsel of his own choosing, and in the absence of funds to engage an attorney that the court would assign counsel to represent him. Petitioner replied that 'I haven't had time to get a lawyer and I would like a continuance on this.'

Petitioner attempted to obtain the services of a law firm. At the expiration of approximately one month, an attorney of this law firm visited him in jail about the case. Following this conference, the law firm which the petitioner selected to represent him, declined to do so.

On January 8, 1964 an attorney was assigned as counsel for the petitioner by the Rutland Municipal Court. This attorney consulted with the petitioner on a number of occasions concerning the charges pending in that court.

On February 29, 1964 a nolle prosequi was entered in the municipal court to the charges then pending against the petitioner. On the same day an information was filed in the Rutland County Court, later amended, charging petitioner with several crimes of forgery.

On March 17, 1964, the same attorney was appointed by the Rutland County Court to defend the petitioner. On the same date, and after consultation with his appointed attorney, the petitioner personally entered pleas of guilty to the information, as amended. Counsel was afforded ample time to prepare the case before the pleas were made, in that he had been working on this case since March 13, 1964.

We first call attention to prior efforts on behalf of the petitioner in seeking post-conviction relief. During 1965 the petitioner sought a writ of habeas corpus. A full hearing was held thereon by the Windsor County Court at wcich time he was represented by different counsel appointed by the court. By the findings of fact the trial court determined that the pleas of guilty were voluntarily made, and that petitioner was represented by a competent attorney from January 8, 1964 through March 17, 1964. The court further determined that the Rutland Municipal Court had reason to believe that the petitioner was represented by counsel of his own choosing from his arrest on the municipal court warrant until the appointment of assigned counsel on January 8, 1964. The court also found that the proceedings in the Rutland County Court were regular.

Later, during April, 1966, a further petition for a writ of habeas corpus was brought by petitioner which was withdrawn. In May 1966 a motion to vacate the judgments and sentences was presented to be Rutland County Court alleging, among other grounds, a violation of the Fourth Amendment of the United States Constitution. Following a hearing this motion was denied, and on appeal the judgment of the lower court was affirmed by this Court. In re Rushford, 126 Vt. 148, 224 A.2d 907.

By a new motion dated July 14, 1966 the petitioner again sought to vacate the judgments and sentences. In this motion he assigned several grounds in support thereof. Among other grounds, petitioner alleged that he did not receive a speedy trial; that he did not have counsel at the time of his incarceration, presumably referring to his arrest on the Rutland Manicipal Court complaint; and that he did not have counsel within the meaning of the Sixth Amendment of the United States Constitution. This petition was withdrawn October 31, 1966.

During argument before this court of the matter now considered, it was agreed by each party that the record of all of the foregoing proceedings might be referred to and considered in this appeal.

Then followed the motion to vacate dated March 3, 1967 of which we are now concerned. This was amended July 10, 1967 to read: first: that there was a lack of adequate legal representation; second: that there was no hearing to determine whether probable cause existed; third: that respondent was never arraigned in Rutland County Court; fourth: fifth and sixth: that respondent was never informed of the allegation nor given a copy of the information; seventh: that respondent was not provided a speedy trial; eight: that respondent was not given twenty-four hours in which to plead; ninth: that respondent was never advised concerning his constitutional and statutory rights; and tenth: that respondent never entered a plea of guilty to the amended information.

A full evidentiary hearing was held on this motion at which time petitioner was represented by counsel. On July 20, 1967 the Rutland County Court found that petitioner was adequately represented by competent counsel; that no probable cause hearing was requested; that a formal arraignment was waived in the Rutland County Court on March 17, 1964; that petitioner knew of the nature of the accusations made against him by the State at the time he entered his plea of guilty to the several counts of forgery; that he received a speedy trial in the Rutland County Court; that he waived the twenty-four hours in which to plead; that the contents of the information, as amended, were fully discussed by petitioner and his counsel prior to the entry of a plea of guilty to the several counts; and that such pleas were knowingly, willingly, and voluntarily made with full knowledge, after consultations with competent counsel, of the crimes charged against the petitioner.

In denying the petition, the lower court found and determined that there had been no violation of the petitioner's constitutional rights. As an additional ground for denying relief to the petitioner the court concluded that under the provisions of 13 V.S.A. section 7134 it was not required to entertain the petition. This section provides: 'The court is not required to entertain a second or successive motion for similar relief on behalf of the same prisoner.'

Petitioner's brief is limited to two points. It is claimed that he was denied the right of counsel as guaranteed under the Sixth Amendment to the United States Constitution which is made obligatory upon the state by the Fourteenth Amendment. See, In re Shuttle, 125 Vt. 257, 258, 214 A.2d 48, citing, 21 Am.Jur.2d Criminal Law, section 318; Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733. The right to counsel means the right to effective assistance of counsel and applies whether counsel...