Willis v. State
| Citation | 152 So.2d 883,42 Ala.App. 85 |
| Decision Date | 30 April 1963 |
| Docket Number | 4 Div. 478 |
| Court | Alabama Court of Appeals |
| Parties | William F. WILLIS v. STATE. |
William F. Willis, pro se.
Richmond M. Flowers, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.
Coram nobis to consider claimed errors in an original trial wherein Willis pled guilty to grand larceny.
We quote from the judgment of the judge who heard Willis's petition:
'By order entered in the minutes and made a part of the permanent record of the Circuit Court of Dothan, Alabama, on December 10, 1962, the Honorable Keener Baxley recused himself as Judge in said cause. On December 12, 1962, by order, in writing, Honorable J. Ed Livingston, Chief Justice of the Supreme Court of Alabama, appointed Eris F. Paul, Circuit Judge of the 12th Judicial Circuit, to try all proceedings in connection with the petition of William F. Willis. On the 18th day of December, 1962, the date set for hearing the petition, the petitioner, with his appointed counsel, Honorable J. Hubert Farmer, the Solicitor, representing the State of Alabama, and all witnesses appeared before the Court, at which time the matter was heard orally.
'Ground 'A' alleges that petitioner was forced into trial without aid and advice of effective counsel and that the counsel appointed him was nothing more than an individual to stand with him while his plea of guilty was entered. The testimony reflects that on March 30, 1962, petitioner was arrested in the State of Florida, waived extradition, and returned to the State of Alabama in connection with a charge of burglary of a school building.
'On May 21, 1962, the petitioner came before Judge Baxley, Circuit Judge, and made known that he wanted to waive indictment and enter a plea of guilty to the offense of burglary. Upon this occasion, the Court ascertained that he had no counsel representing him and was not financially able to hire one, therefore, an order was entered appointing Honorable William G. Hause, practicing attorney of Dothan, Alabama, to confer with the defendant and represent him in the matter of his petition to waive indictment and plead guilty. The necessary petition was filed by the petitioner and the matter set for hearing before the Court on May 28, 1962. Mr. Hause, the appointed counsel, conferred with the defendant on one or more occasions, appeared in Court and represented him at the hearing. At the conclusion of the hearing, an order was entered by Judge Baxley, refusing to accept the plea of guilty of the defendant without indictment and remanding him to jail to await action of the Grand Jury. On June 7, 1962, an indictment was returned by the Grand Jury of Houston County, Alabama, against the petitioner in this cause, indicting him in one count of second degree burglary of the Cottonwood High School and the second count with Grand Larceny of personal property of Houston County, Alabama. On July 23, 1962, the petitioner appeared before the Court and made known to Judge Baxley that he wanted to enter a plea of guilty to the indictment. The prisoner was asked by the Judge whether he had counsel to represent him and upon being advised that he had none, he related to the Court that he 'Did not want any counsel'. Upon it being ascertained that he was not able to employ counsel, the court appointed Honorable H. D. McInish, a practicing attorney of Dothan, Alabama, to represent and defend the defendant. After giving the prisoner and attorney time to confer, during which time they did confer, the prisoner made known that he wanted to enter a plea of guilty to the count in the indictment of Grand Larceny. At said time, and before said plea was taken, the Court fully explained to him the charge, the nature of it, the maximum and minimum sentence, and asked the defendant if he fully understood and wanted to enter a plea. The Counsel appointed for the defendant was present and when asked if he had conferred with the defendant and explained the matter to him, the Court was told by said attorney and defendant that he had, and desired to enter a plea of guilty. The plea was accepted to the count of Grand Larceny and the prisoner sentenced to a period of ten years. Count One of the indictment, charging burglary in the second degree, was nol prossed.
'During this hearing, no insistence was made that either of the attorneys appointed to defend the petitioner, was unlearned, incompetent or inexperienced. In fact, it was admitted by petitioner and his attorney, who ably represented him at this hearing [on coram nobis], that the attorneys representing him at the hearing here under attack, were competent, reputable and experienced. This Court personally knows Mr. Hause and Mr. McInish; has handled many matters in which they have appeared as counsel and knows them to be capable, reputable, and experienced attorneys who are diligent in the performance of matters handled by them.
'This Court is of the opinion and so finds, that petitioner is an intelligent man, as is evidenced by the petition which the testimony shows he personally prepared. His intelligence is further obviated [demonstrated] by his testimony on the witness stand. It is without dispute that he told Judge Baxley that he did not want counsel, but, despite that, taking every precaution, the judge appointed Mr. McInish to represent him in connection with his application to plead guilty after the indictment.
'This Court finds:
'That there is no justification or merit in Ground 'A' of the petition or any other portion of said petition which alleges that the accused was without adequate, efficient and capable representation at any of the hearings had in this cause.
'Ground 'B' of the petition alleges that the original search in the State of Florida, where the petitioner and the property in question was found, was illegal; that the search warrant was addressed to William E. Willis, father of defendant. It was admitted in the testimony that there was search warrant, that at the time the property was seized he was in possession of the premises and had done so for some time prior to the search. Apparently, petitioner is standing on the law announced in the case of Dollree Knapp vs. Ohio 81 A U.S.Sup. Court, 1684 . It will be observed, however, that no testimony was offered at the hearing when the plea of guilty was entered to the indictment and the prisoner sentenced. The Court is unable to see how the rule against illegal search and seizure comes into operation in this case. There was no occasion to invoke any ruling on the proposition when he pleaded guilty. The defendant admitted that he was in possession of the property and did not deny that he confessed to the officers that he took same from the school building and carried it to Florida. Without doubt, the corpus delicti of the offense of Grand Larceny could have been proved.
'During the hearing, that portion of Paragraph 'C' of petition which alleged that he was told by the Sheriff of Houston County, Alabama, that if he would waive Grand Jury indictment and plead guilty, he would probably receive a two year sentence, was withdrawn by petitioner.
'On petition to waive indictment and plead guilty to a charge of burglary, Judge Baxley said to the defendant in substance, 'If your anxiety to plead guilty is based on your expectation of leniency of the Court, you need not plead guilty, this court has no sympathy for a person who would steal from a church or school.' This Court is unable to see how the statement just mentioned by the presiding judge would show that the sentence was based on prejudice. On the contrary, it was to put the defendant fully on notice that he was offering to plead guilty on his own and that the Court would set the sentence on the merits of the case.
'The Court finds that there is no merit, in the allegations of Paragraph 'D' of the petition. 1 The Circuit Court of Houston County did have jurisdiction of the defendant and of the offense. There is no necessity for taking testimony of the guilt of defendant when he enters a plea of guilty as was done in this case, being properly represented by c...
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