Tucker, In re

• Decision Date: 26 January 1966
• Docket Number: Cr. 8251
• Citation: 48 Cal.Rptr. 697,64 Cal.2d 15,409 P.2d 921
• Court: California Supreme Court
• Parties: , 409 P.2d 921 In re Forrest S. TUCKER on Habeas Corpus.

Page 697

48 Cal.Rptr. 697

64 Cal.2d 15, 409 P.2d 921

In re Forrest S. TUCKER on Habeas Corpus.

Cr. 8251.

Supreme Court of California, In Bank.

Jan. 26, 1966.

Forrest S. Tucker, in pro. per., and Robert C. Anderson, Sacramento, under appointment by the Supreme Court, for petitioner.

Thomas C. Lynch, Atty. Gen., Doris H. Maier, Asst. Atty. Gen., and Edsel W. Haws, Deputy Atty. Gen., for respondent.

PEEK, Justice.

By his application for the writ of habeas corpus Forrest S. Tucker, an inmate of LSA-R.S. 15:143. that he is an habitual criminal within the terms of subdivision (a) of section 644 of the Penal Code. He also challenges the quality of the representation afforded him by court-appointed counsel on appeal and urges that we recall the remittitur and reinstate his appeal.

The certified abstract of judgment reveals that on November 27, 1853, a judgment of multiple convictions pursuant to jury verdicts was entered against petitioner for four counts of first-degree robbery; that two charged prior felony convictions were found to be true; and that petitioner was thereupon adjudged to be an habitual criminal within the meaning of subdivision (a) of section 644 of the Penal Code. ¹

The priors charged and proved were (1) grand larceny in Florida in 1938, and (2) burglary in Louisiana in 1946. For each of these convictions a term was served in state prison.

As in the case of In re Woods, Cal., 48 Cal.Rptr. 689, 409 P.2d 913, decided this day, petitioner collaterally attacks each of the two prior convictions on the ground that he neither was advised of this right to, nor was provided with, nor expressly waived, the services of counsel prior to his entry of a plea of guilty in each case. He accordingly contends that Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, and United States v. La Vallee, 2 Cir., 330 F.2d 303, render each prior conviction invalid so that the use of either or both to impose habitual criminal status upon him was improper.

The Woods decision explains the propriety of our present examination of constitutionally challenged out-of-state priors as they relate to California adjudications of habitual criminality. That decision further details the necessity of present inquiry in spite of the difficulties imposed by the passage of time. We thus turn directly to the authorities and records relevant to each prior conviction.

The record of the 1938 Florida conviction consists of certified copies of the information and judgment. Attached to the information is a notation by the deputy clerk that petitioner was 'arraigned in open Court, and to the within Information pleaded Guilty.' The judgment relates that petitioner pleaded guilty to the offense charged and then proceeds to impose sentence. The record is entirely silent as to whether petitioner was represented by counsel, whether he was offered appointed counsel to advise him, or whether he waived the services of counsel.

Section 8375 of the Compiled General Laws of Florida (1927), effective at the date of petitioner's 1938 grand larceny conviction, provided in relevant part that 'the judge shall appoint such counsel in all capital cases where the defendant is insolvent as he shall deem necessary.' (Emphasis added.) Florida cases interpreting this section and its present counterpart, section 909.21, Florida Statutes Annotated, have emphasized that when the charge is for less than a capital offense, Florida law imposes upon the trial court no duty to supply counsel to the defendant. (Johnson v. Mayo, 158 Fla. 264, 28 So.2d 585; Watson v. State, 142 Fla. 218, 194 So. 640.) Further, since the conviction at issue occurred prior to the 1942 decision of the United States Supreme Court in Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595, the trial court cannot be presumed to have felt a constitutional duty to assign counsel in non-capital cases even in those instances where failure to do so would have resulted in an unfair trial.

Since it appears that Florida law imposed no duty to advise of the right to counsel, and appoint counsel for indigents charged with non-capital offenses, the presumption of performance of official duty (see In re Woods, supra, 48 Cal.Rptr. 689, 409 P.2d 913) cannot here be invoked in aid of a finding that proper advice was given prior to the entry of a plea. Further, the judge who presided at the proceedings is now deceased, so that his declaration is not available to aid our inquiry in this regard. (Compare In re Luce, Cal., 48 Cal.Rptr. 694, 409 P.2d 918.)

However, respondent has here produced the affidavit of J. F. McCracken, clerk of the rendering court, which states in relevant part that affiant was deputy clerk of the court at the time of petitioner's conviction; that for many years he attended proceedings of the court in his capacities as clerk and deputy clerk; 'that he knew the said Judge Ben C. Willard officially and intimately during his entire service in said court; that it was the settled practice and custom of Judge Willard in cases brought before him where the defendant was unable to employ counsel to explain to him his right to counsel and to offer to such defendant to appoint a member of the Bar practicing before the court to represent him in his trial, and that it was the custom and settled practice of Judge Willard not to accept a plea of guilty from such defendants until he was assured that they and each of them understood the significance of such plea and understood that he would provide counsel for them if they wished to have the services of an attorney'; that 'the records of the court do not have entries showing affirmatively that Tucker had his right to counsel explained to him or that he had after such explanation waived counsel, but Affiant says that it was not customary at that time to make such entries in the files and on the Minutes of the court because it was the settled practice of the Judge to explain to each defendant who came before him on a felony charge and who indicated that he was unable to employ counsel to explain to him that he had a right to counsel and that the court would appoint one for him if he desired the services of an attorney'; that 'Affiant does not have any independent recollection of these cases involving Forrest Tucker. * * * '

The clerk's affidavit concerning the custom and practice of Judge Willard is persuasive evidence that petitioner was advised of his right to the services of court-appointed counsel prior to the entry of his guilty plea in the 1938 Florida proceeding (see In re Luce, supra, 48 Cal.Rptr. 694, 409 P.2d 618; In re Johnson, 62 Cal.2d 325, 331, 42 Cal.Rptr. 228, 398 P.2d 420), and we conclude that it is sufficient to refute petitioner's bare allegation that he was not so advised.

As to the question of waiver of the right to counsel in the Florida proceeding, here, as in the cases of In re Woods, supra, 48 Cal.Rptr. 689, 409 P.2d 913, and In re Luce, supra, 48 Cal.Rptr. 694, 409 P.2d 918 petitioner's allegation of nonwaiver is effectively controverted by respondent's return to our order to show cause. ² Since we have her concluded that petitioner was advised of his right to legal assistance prior to his entry of a guilty plea, the fact issue of waiver raised by that plea remains to be determined. (In re Woods, supra, 48 Cal.Rptr. 689, 409 P.2d 913.) As in Woods, the case must be returned for hearing to the court wherein the judgment establishing petitioner's habitual criminal status was rendered.

The record of the 1946 Louisiana proceeding contains an excerpt from the minutes which reveals that on November 22, 1946, petitioner 'in person, unattended by Counsel, was placed before the bar of the Court this day for arraignment. When after hearing the Information read by the Clerk, the Defendant thereupon entered a plea of 'Guilty as Charged. " The record makes no reference to the matter of appointment of counsel or waiver.

Section 15:143 of the Louisiana Statutes, effective in 1946, provides as follows: 'Whenever an accused charged with a felony shall make affidavit that he is unable to procure or employ counsel learned in the law, the court before whom he shall be tried, or some judge thereof, shall immediately assign to him such counsel * * *.' (Emphasis added.) In 1937 the Supreme Court of Louisiana interpreted section 15: 143 as requiring (1) that 'When an accused person is brought before the court under a felony charge and appears unrepresented by counsel, it is the duty of the court to ascertain why he has none and if he wants representation'; (2) that representation must be provided to those unable to provide it for themselves, in the absence of waiver; and (3) that 'the minutes of the trial court should show whether the accused had counsel,...