Hagenios v. Warden, Nevada State Prison

535 P.2d 790, 91 Nev. 328, 1975 Nev. LEXIS 626

Opinions

OPINION

By the Court,

Thompson, J.:

In 1957, Ralph Thomas Hagenios pleaded, guilty to murder, was convicted and sentenced to prison for life by Judge Ryland Taylor, now deceased. Hagenios was represented by counsel. He did not appeal his conviction nor challenge its validity by a writ of habeas corpus. A transcript of his arraignment and of the hearing before Judge Taylor to determine degree and punishment has been lost or destroyed and is not available for court inspection.¹

In 1973, Hagenios filed a petition for post-conviction relief requesting that his conviction be annulled upon the ground that his plea of guilty was involuntarily entered for failure of the court to comply with the standards expressed in Boykin v. Alabama, 395 U.S. 238 (1969), and that his confession received in evidence at the hearing to determine degree and sentence also was involuntary, should have been excluded, and prejudiced his right to fair consideration by the judge.

There is no suggestion that a transcript of the arraignment may be reconstructed through witnesses then present, nor that the transcript of the hearing to determine degree and punishment may be reconstructed through witnesses who there testified. There does appear in the record an affidavit of counsel for Hagenios that he advised Hagenios to plead guilty and also advised him of the consequences of his plea. In any event, in so far as his guilty plea is concerned, the doctrine of Boykin v. Alabama, supra, has no application to appellant since he was sentenced before Boykin was decided. Schoultz v. Warden, 88 Nev. 135, 494 P.2d 274 (1972).

At ¡this late date, and in the absence of the transcript of the hearing to determine degree and punishment, it is impossible properly to evaluate the claim, that his confession was involuntary and should not have been received in evidence. The record does show, however, that Hagenios was represented by two attorneys at that hearing, and that his right to appeal was not thereafter pursued. We presume that counsel would have perfected an appeal had an appeal been warranted. Although the record before us does not explain whether the present unavailability of the transcript is due to the fault of the State, we do not perceive a violation of due process or equal protection in these circumstances. Cf. Norvell v. Illinois, 373 U.S. 420 (1963).

The beneficent objective of our post-conviction act to prevent injustice does not require a perpetual right of review to a convicted person under any and all circumstances.

Other grounds for relief have been examined and are without merit.

The order denying post-conviction relief is affirmed.

Zenoff and Mowbray, JJ., concur.

1

In 1957, NRS.200.030(2) provided, in relevant part: “. . . but, if such person shall be convicted on confession in open court, the court shall proceed, by examination of witnesses, to determine the degree of the crime and give sentence accordingly.”