United States ex rel. Sterling v. Pate, 16749.

• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)
• Citation: 403 F.2d 425
• Docket Number: No. 16749.,16749.
• Parties: UNITED STATES of America ex rel. Rex STERLING, Petitioner-Appellee, v. Frank J. PATE, Warden, Illinois State Penitentiary, Respondent-Appellant.
• Decision Date: 21 November 1968

403 F.2d 425 (1968)

UNITED STATES of America ex rel. Rex STERLING, Petitioner-Appellee,
v.
Frank J. PATE, Warden, Illinois State Penitentiary, Respondent-Appellant.

No. 16749.

United States Court of Appeals Seventh Circuit.

November 21, 1968.

403 F.2d 426

William G. Clark, Atty. Gen., of Illinois, A. Zola Groves, Asst. Atty. Gen., Chicago, Ill., for respondent-appellant; John J. O'Toole, Asst. Atty. Gen., of counsel.

Joseph E. McHugh, Chicago, Ill., for petitioner-appellee.

Before CASTLE, Chief Judge, and KILEY and SWYGERT, Circuit Judges.

CASTLE, Chief Judge.

The respondent-appellant, Frank J. Pate, Warden, Illinois State Penitentiary, prosecutes this appeal from the December 20, 1967, order of the District Court granting the petition of Rex Sterling, petitioner-appellee, for a writ of habeas corpus, and ordering the petitioner discharged.

The petitioner was convicted on November 23, 1931, in the Circuit Court of Montgomery County, Illinois, on his plea of guilty to burglary and larceny. He is serving a sentence of from one year to life as a result of that conviction. In his petition he alleges, inter alia, that he was unattended by his court-appointed counsel at the trial held on November 23, 1931, at which time he changed his plea to a guilty plea upon which he was convicted and sentenced. The District Court, after an evidentiary hearing, found such to be the case¹ and ordered the petitioner discharged.

In this connection the District Court found:

"* * * that on November 9, 1931, Rex Sterling was arraigned before the Honorable Paul McWilliams, Judge of the Circuit Court of Montgomery County, Illinois, on a charge of burglary and larceny pursuant to indictment No. 7861. Appearing on behalf of the People of the State of Illinois was Lester K. Vandever, States Attorney. At said time and place, Rex Sterling asked the presiding judge to appoint an attorney. Thereupon, Clark R. Missimore was appointed attorney to represent Rex Sterling and the matter was continued to November 23, 1931, for purposes of trial; that on November 23, 1931, the matter was called for trial and Judge Paul McWilliams was advised that Clark R. Missimore was not in Court and would not be able to represent Rex Sterling. Thereupon, a request was made by Rex Sterling to appoint a new attorney, which request was objected to by the States Attorney. Leave was given to the States Attorney to discuss the matter with Rex Sterling. Thereafter the plea of Not Guilty was withdrawn and a plea of Guilty was entered by Rex Sterling without the benefit of the advice of his attorney, Clark R. Missimore, or by any other attorney."

The petitioner relies on these critical factual findings as compelling affirmance of the District Court's order discharging him. In this respect petitioner points to our recognition in United States ex rel. Gates v. Pate, 7 Cir., 355 F.2d 879, 881, that:

"It is axiomatic that this Court will not set aside the District Court\'s findings of fact unless they are clearly erroneous. Rule 52(a), Federal Rules of Civil Procedure. This rule is applicable to review of habeas corpus as well as other cases."

But the fact that there is evidence to support the District Court's factual findings, and thus preclude them

403 F.2d 427

from being characterized as "clearly erroneous", requires affirmance only if the court also applied the court legal criteria in reaching its ultimate conclusion

The factual findings above set forth are based on the petitioner's version of what occurred on November 23, 1931, the day of his trial, as related by him in his testimony before the District Court, and on the fact that the mittimus² issued by the clerk of the state court to the sheriff directing that the defendant be taken from the bar of the court and delivered for incarceration states that on November 23, 1931, the defendant appeared before the court "in his own proper person unattended by counsel". But the mittimus is not a part of the common law record. People v. Valentino, 354 Ill. 584, 188 N.E. 825; People v. Stacey, 372 Ill. 478, 24 N.E. 2d 378. And, the duly certified copy of the common law record in the state court criminal proceeding, filed in the District Court pursuant to leave of court and admitted in evidence as a respondent's exhibit, recites that on November 23, 1931, the defendant appeared in "open court as well in his own proper person as by C. R. Missimore, his attorney". Moreover, Attorney Missimore testified in the District Court that he was so present in the state court representing the petitioner during the November 23, 1931, proceeding which culminated in petitioner's change of plea, conviction, and sentencing.

The duly certified common law record prevails in case of variance between it and the mittimus. Cf. People v. Stubblefield, 391 Ill. 609, 63 N.E.2d 762.

Although during the closing arguments before the District Court the trial judge, in a colloquy with counsel, recognized that he was confronted with the problem of "whether or not by parol evidence you can alter a certified record under Illinois law," it appears from the same colloquy that in proceeding to enter the judgment order discharging the petitioner the court, rather than resolving that issue, relied on what it characterized as "areas of uncertainty about the memory of the witness Missimore" which "do not in any way cause his testimony to contradict substantially the testimony...