State v. Starratt

• Decision Date: 09 October 1967
• Docket Number: Cr. 356
• Citation: 153 N.W.2d 311
• Parties: STATE of North Dakota, Plaintiff and Respondent, v. Henry STARRATT, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 311

153 N.W.2d 311

STATE of North Dakota, Plaintiff and Respondent, v. Henry STARRATT, Defendant and Appellant.

Cr. 356.

Supreme Court of North Dakota.

Oct. 9, 1967.

Syllabus by the Court

1. In a civil proceeding to set aside a judgment entered in a criminal case, the burden of proving by a preponderance of the evidence that something occurred, other than what was certified to by the committing magistrate, is upon the petitioner.

2. In a collateral attack upon a judgment in a criminal case, the record imports verity and cannot be contradicted by an unsupported assertion of a petitioner.

3. The uncorroborated affidavit of a petitioner seeking to set aside a judgment in a criminal proceeding by collateral attack was an insufficient basis upon which to conclude that the petitioner was not in fact advised of his right to counsel, when the record, as certified by the committing magistrate, disclosed that he was advised of all of his statutory and constitutional rights.

4. Prior to the 1967 amendment of § 29--01--27, N.D.C.C., that section of the Code did not entitle a defendant to court-appointed counsel at the time of his appearance before the committing magistrate for a preliminary hearing.

5. There is no arbitrary point in time at which the right to be represented by counsel or, if indigent, the right to be represented by court-appointed counsel, attaches in pre-trial proceedings. The critical point is to be determined both from the nature of the proceedings and from that which actually occurs in each case.

6. An accused has a constitutional right to be represented by counsel, or, if indigent, to be represented by court-appointed counsel at a preliminary hearing or at any other stage prior to arraignment, if, under the facts of the particular case, those stages are critical in the criminal proceedings.

7. For reasons set forth in the opinion, neither the preliminary hearing nor the signing of the confession of guilt prior to the arraignment in the instant case constituted a critical stage in the petitioner's criminal proceedings, and thus petitioner's lack of counsel at those stages did not deprive him of any of his constitutional rights.

James D. Schlosser, Bismarck, for appellant.

Helgi Johanneson, Atty. Gen., Bismarck, and Clinton R. Ottmar, State's Atty., and David Nething, Asst. State's Atty., Jamestown, for respondent.

ERICKSTAD, Judge.

The defendant, Henry Starratt, was sentenced to not less than five years nor more than ten years in the state penitentiary by the District Court of Stutsman County on December 14, 1964. While serving his sentence, Mr. Starratt, through counsel appointed for him, petitioned the said district court to set aside that judgment and to permit him to withdraw his plea of guilty of the crime of burglary, upon which plea he had previously been sentenced by the court.

In the petition Mr. Starratt asserted that he was arrested in Jamestown on December 5, 1964, on the charge of burglary, and that on December 7 he was taken before the Stutsman County Court with Increased Jurisdiction for a preliminary hearing on that charge. He stated that he was asked if he would waive the preliminary hearing and that he consented to do so; that he was bound over to the district court, bond being set at $3,000; and that, being unable to post that bond, he was remanded into the custody of the sheriff to await trial. He stated that the county judge did not inform him that he had the right to be represented by counsel or that if he was indigent, he had the right to have the court appoint counsel to represent him. He further asserted that he was held in custody in the Stutsman County jail from December 7 until December 14, 1964, and that during this period he was not advised of his right, as an indigent, to appointed counsel.

He alleged further that on December 14, while awaiting the appearance of the district judge, he asked the assistant state's attorney about the distinction between burglary and unlawful entry; and he contends that the assistant state's attorney informed him that there was no difference between the two crimes, that the intent of the individual would determine which law had been violated, and that the State could charge criminal intent but that it didn't have to prove it. He further asserted that because of these statements by the assistant state's attorney, he entered his plea of guilty at the arraignment before the district court.

We cannot determine exactly what happened at the hearing on the petitioner's motion to set aside the judgment, as we do not have a transcript of those proceedings other than a transcript of the ruling on the motion.

The certificate settling the statement of the case, however, includes, among other things, the criminal complaint, dated December 5; the certification by the county judge of the proceedings before him, dated December 7; the criminal information, dated December 14; the state's attorney's statement upon the defendant's request to plead guilty, which includes the defendant's confession of guilt, dated December 14; and the judgment of the district court, dated December 14.

On the district court's denial of the petitioner's motion to set aside the judgment, the petitioner appealed. From what is contained in the petitioner's brief on this appeal and from what was said by his counsel in the oral argument before this court, we conclude that the petitioner has abandoned his contention that he was misled by any remarks of the assistant state's attorney, if any were made. We merely refers to the allegation that such a conversation was had between the assistant state's attorney and the petitioner on the date of the arraignment to support his argument that it was important that he have counsel appointed before the time of the arraignment.

It should be noted that the petitioner does not contend that he was not advised at the arraignment of his right to have counsel of his choice represent him, or, if he was without funds, to have counsel appointed by the court represent him; nor would such a contention, if it had been made, have been supported by the record in this case, as the record clearly indicates that he was informed of these rights and that he understandingly waived them at the time of his arraignment.

The only record we have of what happened at the time of the appearance of the petitioner before the county court is contained in the county judge's certification of the proceedings before him. The certificate states that in the presence of the petitioner the complaint charging him with the crime of burglary was read by the state's attorney; that thereafter the petitioner was advised of all of his statutory and constitutional rights; and that after being so advised the petitioner waived preliminary hearing.

It is the petitioner's contention that, contrary to the court's certification, he was not advised that he had the right to counsel and that if he was indigent, he had the right to have counsel appointed for him. He further contends that if it is to be assumed from the certificate that he was so advised, the certificate is nevertheless inadequate, in that it fails to show that he waived those rights, merely stating that he waived his right to a preliminary hearing.

Although the certificate is not one to be commended as an example for future use by committing magistrates, especially in light of the amendments to § 29--07--01, N.D.C.C., as contained in Chapter 259 of the 1967 Session Laws, its sufficiency must be considered in light of the provisions of § 29--07--01 as of 1964. Had the committing magistrate's certificate disclosed the specific rights the petitioner was informed of and the specific rights he waived, and had the proceedings been stenographically recorded our course would be much clearer. Certainly these would have been better practices, but, as we must decide the case on the record before us, we shall begin our study with a review of the controlling statute as of 1964. It then read as follows:

29--07--01. Magistrate's duty--Testimony may be taken.--When the defendant is brought before a magistrate upon an arrest, either with or without a warrant, on a charge of having committed a public offense which the magistrate is without authority to try and determine, the magistrate immediately shall inform him:

1. Of the charge against him;

2. Of his right to the aid of counsel in every stage of the proceedings; and

3. Of his right to waive an examination.

North Dakota Century Code.

If he was advised of all of his constitutional and statutory rights, he must certainly have been advised of his right to the aid of counsel at every stage of the proceedings. The burden of proving by a preponderance of the evidence that something occurred, other than what was certified to by the committing magistrate, is upon the petitioner. Cf. Moore v. Michigan, 355 U.S. 155, 161--162, 78 S.Ct. 191, 195, 2 L.Ed.2d 167 (defendant bears the burden of proof in a collateral attack upon judgment--rule stated, but burden held sustained); Amer v. United States, 367 F.2d 803 (8th Cir. 1967); Estep v. United States, 251 F.2d 579 (5th Cir. 1958); Halleck v. Koloski, 4 Ohio St.2d 76, 212 N.E.2d 601; Tucker v. State, 248 S.C. 344, 149 S.E.2d 769; McGuffey v. Turner, 18 Utah 2d 354, 423 P.2d 166.

In State v. Magrum, 76 N.D. 527, 38 N.W.2d 358, this court said:

Upon a motion to set aside a judgment of conviction upon the grounds of fraud, duress or the denial of counsel, the burden of proof is upon the defendant to establish the facts upon which he relies as a basis for relief.

State v. Magrum, supra, 359 (Syllabus 5).

In Magrum considerable evidence was submitted to show that the petitioner did not freely and intelligently waive his right to counsel.

All that we have here is the uncorroborated or unsupported affidavit of the interested party.

The record imports verity and cannot be contradicted by the unsupported assertion of the petitioner. Se...