Strickland v. State
| Decision Date | 04 May 1965 |
| Docket Number | 6 Div. 54 |
| Citation | 189 So.2d 764,43 Ala.App. 311 |
| Parties | William R. STRICKLAND v. STATE. |
| Court | Alabama Court of Appeals |
Olin W. Zeanah, Tuscaloosa, for appellant.
Richmond M. Flowers, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., for the State.
Strickland appeals the denial of coram nobis by the Circuit Court of Tuscaloosa County.
His principal complaint is that he was denied effective assistance of counsel while indigent.
In 1961, while in the Tuscaloosa County jail waiting to be transported to the penitentiary, Strickland escaped. He was indicted by the Tuscaloosa County grand jury for the offense denounced by Code 1940, T. 14, § 153, as amended, which reads:
'Any convict who escapes or attempts to escape from the penitentiary, or from any person or guard having him in charge under authority of law, either within or outside the walls of the penitentiary before the expiration of the term for which he was sentenced, shall, on conviction be imprisoned for an additional term of not less than one year.'
According to the record before us, based on the bench notes of the late Honorable Reuben Wright, then Presiding Judge of the Tuscaloosa Circuit, Strickland, on arraignment, was asked if he wanted counsel and the bench notes affirmatively show that he said, in effect, that he would arrange for his own lawyer by the time for trial.
However, when the trial did come up, Strickland appeared without a lawyer and changed his plea from not guilty to guilty and received a four-year sentence on conviction by the court without the intervention of a jury.
We consider that reversible error was committed in accepting this change of plea without first showing that there was again an intelligent waiver of counsel. The offense denounced is of very doubtful 1 application to a prisoner who has not been taken into the penitentiary system within the meaning of our law which allows him no credit for obedience to the sentence until he is in the warden's custody. Being merely in the jail waiting for the penitentiary transportation agent gives no such credit.
In Rice v. Olsen, 324 U.S. 786, at 788, 65 S.Ct. 989, at 991, 89 L.Ed. 1367, we find:
'A defendant who pleads guilty is entitled to the benefit of counsel, and a request for counsel is not necessary.'
Both this court and the Supreme Court of Alabama have had occasion to consider the retrospectivity of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. Barnes v. State, 42 Ala.App. 504, 169 So.2d 313; Brown v. State, 277 Ala. 353, 170 So.2d 504.
In Commonwealth ex rel. O'Lock v. Rundle, 415 Pa. 515, 204 A.2d 439, the Supreme Court of that state, we think correctly, applied the Gideon principle to a plea of guilty. In view of the necessity of an affirmative disclosure in the conviction record under the original indictment as exemplified in Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70, the burden of showing waiver in the absence of counsel for an indigent felony defendant is cast upon the State rather than the petitioner even in a post conviction proceeding.
Here, while it can be fairly said that Strickland waived the appointment of counsel on his original arraignment, nevertheless the next critical step leading to his conviction was when he changed his plea to guilty.
The record before us is completely blank as to whether or not Judge Warren, who was presiding at the time of Strickland's second appearance, made further enquiry as to his indigency and non-accompaniment by counsel. See Palumbo v. State of New Jersey, 3 Cir. 334 F.2d 524, and the dissenting opinion of Bell, J., in Post v. Boles, 4 Cir., 332 F.2d 738.
Reversed and remanded.
On Remandment
After the Supreme Court of Alabama remanded this cause (Sept. 30, 1965, 189 So.2d 771), the United States Court of Appeals issued its opinion in Davis v. Holman, 5 Cir., 354 F.2d 773.
This latter case was a reversal of a judgment denying habeas corpus and remanding Davis to Holman's custody. 237 F.Supp. 490.
The Attorney General filed a petition for certiorari with the Supreme Court of the United States seeking review of the Fifth Circuit. Among the purported questions posed to the United States Supreme Court was the conflict between the Supreme Court of Alabama in the instant case and the Fifth Circuit in Davis v. Holman, 354 F.2d 773. The petition was denied without opinion April 18, 1966, 86 S.Ct. 1343.
Davis, on its facts, we consider less clear cut in the prisoner's favor than Strickland. Davis had waived counsel intelligently (so all courts have assumed) and had descended into the jaws of jeopardy when he changed his plea to guilty--as an alternative to verdict. We saw this merely as a trial tactic and affirmed without opinion. Davis v. State, 42 Ala.App. 693, 165 So.2d 917. See Adkins v. State, 40 Ala.App. 87, 109 So.2d 747.
Our Supreme Court has said, 'But we are not bound by the decisions of any federal court * * * other than the Supreme Court of the United States, * * *' Sanders v. State, 278 Ala. 453, 179 So.2d 35. See also Stock v. Plunkett, 181 Cal. 193, 183 P. 657; People v. Estrada, 234 Cal.App.2d 136, 44 Cal.Rptr. 165. State ex rel. Irvine v. District Court, 125 Mont. 398, 239 P.2d 272.
We now have a decision (albeit not squarely on the merits) of the Supreme Court of the United States in the Davis case, 86 S.Ct. 1343. Bland v. Holman, 5 Cir., 356 F.2d 8 (cert. den. Alabama v. Bland, March 21, 1966, 86 S.Ct. 1203, is of like import. In Thomas v. State 277 Ala. 570, 173 So.2d 111, we find Lawson, J., saying:
'* * * this court is not bound to follow federal courts on federal questions except the Supreme Court of the United States, but to ignore the consistent holdings of those courts on this question, which holdings have not been disturbed by the Supreme Court of the United States although efforts have been made to have it overturn those holdings, can only lead to further delay in bringing about the punishment of those guilty of violating the laws of this state.'
Accordingly, we consider the supremacy Clause of the Federal Constitution, Art. 6, cl. 2, requires that our original judgment be reinstated. See separate opinion in Knox v. State, 42 Ala.App. 578, at 586, 172 So.2d 787, at 794.
Reversed and remanded.
The Attorney General would have us withdraw our last opinion and judgment for two reasons.
First, he would have us treat Davis v. Holman, op. cit., supra, as being solely Davis's case. The denial of certiorari by the Supreme Court of the United States is not a decision on the merits. See House v. Mayo, 324 U.S. 42, 65 S.Ct. 517, 89 L.Ed. 739; Louisville & N.R. Co. v. Bayles, 275 Ala. 206, 153 So.2d 639.
With this generalization we agree in theory. Practically, however, we know that the Fifth Circuit has considered the law of case in its decision in Davis.
Though the Attorney General may want to tilt at windmills, we prefer a less quixotic role. We see no reason why the only adjustments in our legal structure must come from on high.
Along with Bland and Davis, we think the operative law--which opens or shuts prison doors--is settled. Morrison v. State, 258 Ala. 410, 63 So.2d 346. The taxpayers should be spared the cost of further jousting.
Second, the State suggests--dehors the record--that Strickland completed his sentence April 3, 1966, and dismissed an action for habeas corpus in the United States District Court for the Middle District of Alabama.
There are two reasons to reject this ground. One, review of coram nobis on appeal is on the basis of the record annexed to the judgment under review.
Strickland first filed in July, 1963, and had a hearing in March, 1964. Hence, his release in 1966 is not before this appellate court.
Two, the Attorney General mistakes the nature and purpose of the writ of error coram nobis.
Analyzing the result of a judgment of conviction beyond the immediate consequence of incarceration (or mulcting or both), we note the following incidental consequences:
1. The loss of political and civil rights, e.g.,
'Any person who is disqualified from voting by reason of conviction of any of the offenses mentioned in section 15 of this title, except treason and impeachment, whether the conviction was had in a state or federal court, and who has been pardoned, may be restored to his or her citizenship with right to vote by the state board of pardons and paroles when specifically expressed in the pardon.'
'No person convicted of embezzlement of the public money, bribery, perjury, or other infamous crime, shall be eligible to the legislature, or capable of holding any office of trust or profit in this state.'
2. The legal consequence of a pardon's implying guilt, whereas coram nobis (at least where there is a breach of right to counsel) can lead to expunging conviction, ab initio. Mason v. State, 39 Ala.App. 1, 103 So.2d 337; Lyons v. Goldstein, 290 N.Y. 19, 47...
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Whitson v. Baker
...and could file the action. The state reasons that since prisoners are now allowed to bring lawsuits, see e.g., Strickland v. State, 43 Ala.App. 311, 189 So.2d 764 (1965); Whitehead v. Baranco Color Labs, Inc., 353 So.2d 793 (Ala.1977), the reason for the rule no longer exists. The state pro......
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Whitson v. Baker
...and could file the action. The state reasons that since prisoners are now allowed to bring lawsuits, see e.g., Strickland v. State, 43 Ala.App. 311, 189 So.2d 764 (1965); Whitehead v. Baranco Color Labs, Inc., 353 So.2d 793 (Ala.1977), the reason for the rule no longer exists. The state pro......