Ward v. Page, Civ. No. 5442.

• Decision Date: 25 February 1965
• Docket Number: Civ. No. 5442.
• Citation: 238 F. Supp. 431
• Court: U.S. District Court — Western District of Oklahoma
• Parties: Arley WARD, Petitioner, v. Ray H. PAGE, Warden, Oklahoma State Penitentiary, Respondent.

238 F. Supp. 431

Arley WARD, Petitioner, v. Ray H. PAGE, Warden, Oklahoma State Penitentiary, Respondent.

Civ. No. 5442.

United States District Court D. Oklahoma.

February 25, 1965.

Gene Stipe, Stipe, Gossett & Stipe, McAlester, Okl., for petitioner.

Jack Swidensky, Asst. Atty. Gen., State of Oklahoma, Oklahoma City, Okl., for respondent.

BOHANON, District Judge.

Petitioner, Arley Ward, was charged with the crime of murder in the District Court of Tulsa County, Oklahoma, in 1947. After two days of trial, and before the case was submitted to the jury, the record shows that Petitioner changed his plea from "not guilty" to "guilty" of manslaughter in the first degree, and was sentenced by the Court to serve a term of forty years in the State Penitentiary. Petitioner appealed to the Court of Appeals of the State of Oklahoma, Ward v. State, 90 Okl.Cr. 120, 210 P.2d 790, and he was granted no relief. Petitioner then filed a Petition for Writ of Habeas Corpus, which was denied without opinion by the Oklahoma Criminal Court of Appeals. Petitioner then filed another Petition for Writ of Habeas Corpus with the same Court, which was denied, Ward v. Raines, 360 P.2d 953, on the ground that all matters presented in this Petition should have been raised on appeal. Petitioner then filed a Petition for Writ of Habeas Corpus with the United States District Court for the Eastern District of Oklahoma, asserting:

1. That he had been denied the right of effective counsel; and

2. That his plea of "guilty" was not a free and voluntary act.

The Petitioner was afforded a hearing by the District Court, at which he appeared pro se at his request. The Court refused to issue the writ, and an appeal was taken to the Court of Appeals, Tenth Circuit.

We are here concerned only with one issue; that is, was Petitioner's plea of "guilty" voluntary, or was his plea made under circumstances showing it to be involuntary, upon the basis of promises made by the prosecution, and tacitly by the Trial Judge.

On the question of whether the plea of "guilty" was voluntary, the Court of Appeals said, in 336 F.2d 602:

"This issue of whether the plea was voluntary was raised by the petition and testimony was taken in the hearing below. The trial court however made no finding as to the voluntary nature of the guilty plea and in the order entered made no reference to it. This was a real issue raised by the applicant's petition; there was evidence on it before the court, and it should have been considered and disposed of by the findings and order."

The case was remanded for findings upon this issue. After remand by the Court of Appeals, and in accordance with the dictates thereof, the Petition for Writ of Habeas Corpus was then docketed for and was heard by this Court on the 30th day of December, 1964, at McAlester, Oklahoma, at which time a full and complete hearing was had, and Petitioner was represented by able counsel, Mr. Gene Stipe, appointed by this Court to protect Petitioner's legal rights.

Petitioner contends that his Constitutional rights under Section I, United States Constitution, Fourteenth Amendment, were violated, in that his plea was not voluntarily entered, thus not in accordance with due process of law.

The Court is of the opinion and concludes that Petitioner did not voluntarily withdraw his plea of "not guilty" and enter a plea of "guilty," and the Petition for Writ of Habeas Corpus should be granted, and a new trial ordered.

Upon the last hearing, there was much evidence introduced which leaves this Court with a firm conviction that Petitioner was not properly advised of his rights and entered his plea of guilty upon the belief, if not the assurance, of the prosecuting attorney and the Trial Judge, and Petitioner's attorney, that a prior sentence of twenty-five years for robbery with firearms would run concurrently with his forty year sentence for manslaughter imposed by the District Court of Tulsa County. Upon the charge of robbery with firearms, there remained, according to the record and Petitioner's belief at the time, approximately fourteen years yet to be served.

Some of the pertinent portions of the testimony will be quoted. A newspaper reporter for the Tulsa "Tribune," Mr. Bulloch, stated that he wrote an article for the "Tribune," a daily newspaper of Tulsa, Oklahoma, and that the article was a true account of the pertinent portions of the State District Court trial. In this account, the witness, reading from the newspaper article to refresh his memory, stated:

"County Attorney Elmer W. Adams, who had previously demanded the death penalty, recommended the sentence and also recommended that fourteen years of a revoked parole run concurrently with the sentence. This was also ordered by the Court * * *"

"When he was discussing the proposed guilty plea, Judge Taylor (the Trial Judge) asked Ward if he had anything to say, and Ward inquired as to whether the commuted parole would be mentioned in the commitment papers. Informed that everything would be handled properly, * * *"

Upon redirect examination, the witness testified:

"Q Your reporting of what transpired there, that he inquired of the Court if a previous sentence would be commuted as a part of this sentence, that inquiry was made by Mr. Ward there?

"A Yes, sir.

"Q And the Court told him that that would be done, is that right, sir?

"A Yes, sir."

The Petitioner, Arley Ward, was called as a witness, and in part testified as follows:

"Q When you changed your plea from not guilty to guilty, did you participate in any discussion with the County Attorney and the District Judge about the circumstances under which you would change your plea from not guilty to guilty?

"A Yes, sir. I specifically cited to the Judge that I would enter the plea with the agreement made that the County Attorney had just made to me, that the Court would go along with him on this issue.

"Q Now, on `this issue' do you have reference to a previous sentence?

"A Yes, sir.

"Q That you were being held on at that time?

"A Yes, sir. He — the County Attorney, and also the Assistant County Attorney, told me while I was in service that there had been an additional law passed in the legislature to where a person had to serve the maximum term of his sentence, after he was paroled.

"Q If the parole were revoked?

"A Yes, sir. And I had approximately 14 years to serve and they would let it run concurrently with the 25 years — or with the 40-year sentence, and then I asked Mr. Coffey, defense counsel, I said `Will they do that?' He said, `If they tell you they will, they will do it.'

"Q Did they tell you they would?

"A Yes, sir, they did.

"Q And was it ever done to your knowledge; did you have to serve the 14 years on the previous sentence?

"A Yes, sir, I served the parole.

"Q You have now served that?

"A Yes, sir.

"Q And you are now serving time on the 40-year sentence?

"A Yes, sir.

"Q To your knowledge that sentence was never commuted?

"A Never was.

"Q And you had to serve it?

"A Yes, sir."

Perhaps the most convincing evidence that Petitioner's plea was not voluntarily entered is a letter dated October 1, 1947, from Elmer W. Adams, the County Attorney of Tulsa County, Oklahoma, written to the Pardon and Parole Board, in regard to State vs. Arley Ward, shown in the transcript of the record in the Court of Appeals, Tenth Circuit, Case No. 7762, at Page 80, which reads as follows:

"Gentlemen:

The above named defendant, Arley Ward, has this date entered a plea of guilty to a charge of manslaughter in the first degree, and was sentenced to forty years on recommendation of this office. This plea of guilty on the part of the defendant to the charge of first degree manslaughter came after a murder trial in the District Court of Tulsa County, which lasted two days, and after all the evidence was in. The reason the State made recommendation was that the evidence did not indicate premeditation on the part of the defendant to kill Earl Newell.

Prior to the time defendant, Arley Ward, entered his plea of guilty to first degree manslaughter, I agreed with him and his attorney that I would recommend to the Pardon and Parole Board that Arley Ward be permitted to do his time on the forty year sentence this date given him and the remaining time he has to do on his parole revocation dated July 11, 1946, concurrently. I have a certified copy of this said parole revocation before me, and it reflects that Arley Ward, No. 29124, was convicted in the District Court of Murray County, Oklahoma, of the crime of robbery with fire-arms, and was sentenced to serve a term of twenty five years in the Oklahoma State Penitentiary at McAlester; that on April 28, 1945, a parole conditioner on good behavior was issued to the said Arley Ward for the purpose of enabling him to enter the armed forces. In connection with the armed service of Arley Ward, I have a letter in my file from the Adjutant General of the Army, reflecting that Arley Ward received an honorable discharge from the Army on November 25, 1946.

The defendant, Arley Ward, would not have ENTERED A PLEA OF GUILTY AND TAKEN THE FORTY YEARS ON the manslaughter charge in the District Court of Tulsa County, unless HE FELT THAT THE STATE WOULD PERMIT him to do the forty years concurrently with the time he has left to serve on his parole revocation. It is therefore recommended to the Pardon and Parole Board that Arley Ward be permitted to do the time fixed in the parole revocation and the forty year sentence for manslaughter, concurrently.

If there is any further information this office can furnish concerning this matter, please feel free to call on us.

Yours very truly (sgd.) Elmer W. Adams ELMER W. ADAMS County Attorney. (Emphasis mine)"

Further, Mr. Adams, the County Attorney, testified, Page 82:

"Q Now, you know at the time that Arley Ward was insistent upon the proposition that he should not have to do the time on the revocation of his parole from Murray County and do forty

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