The application is denied. The showing made does not warrant the exercise of our original or supervisory jurisdiction. See State ex rel. Ardoin v. Henderson, 255 La. 1029, 233 So.2d 923.
HAMLIN, J., concurs with written reasons.
BARHAM, J., is of the opinion the writ should be granted ordering an evidentiary hearing. See written reasons assigned.
TATE, J., is of the opinion the writ ordering an evidentiary hearing should be granted and joins in Justice BARHAM’S opinion.
BARHAM, Justice.
This writ application presents squarely the question: From what date is a defendant afforded the federally imposed right to counsel at arraignment?
The minutes of court are silent in regard to whether relator had counsel. For the purpose of disposing of this writ application we must accept the relator’s allegations that on May 11, 1959, he pleaded guilty to five charges of theft; that he was not offered counsel; that he was not apprised of his right to counsel; that he did not waive counsel.
A majority of the court have denied the writ, and one has filed a concurrence relying upon cases which are, to my belief, [827]*827in no way concerned with the federal right to counsel when pleading guilty.
The following I believe to be a partial anafysis of cases pertinent to the point under consideration.
Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L.Ed.2d 114 (1961), set aside a sentence based upon a plea of guilty to a capital offense by the applicant in Alabama when he was without counsel and did not waive his right to counsel.
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), required counsel or waiver of counsel in the trial of all serious offenses. It overruled Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L. Ed. 1595 (1942), and the former holding that the federal right to counsel was required in state prosecutions only in capital cases. Additional language in Gideon stated that counsel is required at every critical stage of a trial, and Hamilton v. Alabama, supra, had determined that arraignment is a critical stage of a trial. Gideon is retroactive in effect. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).
White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), applied Hamilton v. Alabama, supra, to a guilty plea entered at preliminary hearing at a date prior to the Hamilton decision, repeating that arraignment is a critical stage in a criminal proceeding. Without inquiring into the question of prejudice, it set aside the guilty plea entered by defendant without benefit of counsel.
It would seem clear that since Gideon v. Wainwright, supra, which required counsel in the trial of all serious offenses, was [829]*829retroactive in effect, and since Hamilton v. Alabama, supra, which held that arraignment was a critical stage of a trial, was decided before Gideon and was applied retroactively by White v. Maryland, supra, decided after Gideon, the United States Supreme Court has, without regard to time or date of the proceeding, required that the defendant have counsel or waive counsel in state proceedings when he pleads guilty to a serious offense at arraignment.
If this were not sufficient to determine this question, the express language of the United States Supreme Court in recent cases certainly should set the matter at rest.
In Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5 (1968), the court said:
“In White v. Maryland an accused pleaded guilty when arraigned at a preliminary hearing, and at that time had no counsel to represent him. We held that Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L. Ed.2d 114, was applicable, as only the aid of counsel could have enabled the accused to know all the defenses available to him and to plead intelligently. White v. Maryland is indistinguishable in principle from the present case; and zve hold that it is applicable here although it was not decided until after the arraignment and trial in the instant case.
“The right to counsel at the trial (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733) ; on appeal (Douglas v. California, 372 U.S. 353, 9 L.Ed.2d 811, 83 S.Ct. 814); and at the other ‘critical’ stages of the criminal proceedings (Hamilton v. Alabama, supra) have all been made retroactive, since the ‘denial of the right must almost invariably deny a fair trial.’ See Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199, 1203.” (Emphasis supplied.)
In McMann v. Richardson, 397 U.S. 759, at p. 771, 90 S.Ct. 1441, at p. 1449, 25 L.Ed. 2d 763 (1970), it was said at p. 773, footnote 14:
“Since Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R. 2d 733 (1963), it has been clear that a defendant pleading guilty to a felony charge has a federal right to the assistance of counsel. See White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5 (1968). * * *”
Along with others, I deplore the possible results of these holdings, which may set at liberty some who are guilty because lapse of time and other circumstances prevent their retrial now. However, the Constitution of this nation places the judicial supremacy in the United States Supreme Court, and I am obligated to follow its interpretations of that Constitution. I am of the opinion that this court is required to order an evidentiary hearing in this case to determine whether the applicant had coun[831]*831sel or waived his right to counsel when he pleaded guilty to the charge which resulted in the sentences under attack.
In McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), the defendant had a lawyer, and the court concluded that Rule 11 of the Federal Rules of Criminal Procedure required a federal district judge to inform one pleading guilt}7 of his constitutional rights even when counsel was present. Halliday v.
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The application is denied. The showing made does not warrant the exercise of our original or supervisory jurisdiction. See State ex rel. Ardoin v. Henderson, 255 La. 1029, 233 So.2d 923.
HAMLIN, J., concurs with written reasons.
BARHAM, J., is of the opinion the writ should be granted ordering an evidentiary hearing. See written reasons assigned.
TATE, J., is of the opinion the writ ordering an evidentiary hearing should be granted and joins in Justice BARHAM’S opinion.
BARHAM, Justice.
This writ application presents squarely the question: From what date is a defendant afforded the federally imposed right to counsel at arraignment?
The minutes of court are silent in regard to whether relator had counsel. For the purpose of disposing of this writ application we must accept the relator’s allegations that on May 11, 1959, he pleaded guilty to five charges of theft; that he was not offered counsel; that he was not apprised of his right to counsel; that he did not waive counsel.
A majority of the court have denied the writ, and one has filed a concurrence relying upon cases which are, to my belief, [827]*827in no way concerned with the federal right to counsel when pleading guilty.
The following I believe to be a partial anafysis of cases pertinent to the point under consideration.
Hamilton v. Alabama, 368 U.S. 52, 82 S. Ct. 157, 7 L.Ed.2d 114 (1961), set aside a sentence based upon a plea of guilty to a capital offense by the applicant in Alabama when he was without counsel and did not waive his right to counsel.
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), required counsel or waiver of counsel in the trial of all serious offenses. It overruled Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L. Ed. 1595 (1942), and the former holding that the federal right to counsel was required in state prosecutions only in capital cases. Additional language in Gideon stated that counsel is required at every critical stage of a trial, and Hamilton v. Alabama, supra, had determined that arraignment is a critical stage of a trial. Gideon is retroactive in effect. Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).
White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963), applied Hamilton v. Alabama, supra, to a guilty plea entered at preliminary hearing at a date prior to the Hamilton decision, repeating that arraignment is a critical stage in a criminal proceeding. Without inquiring into the question of prejudice, it set aside the guilty plea entered by defendant without benefit of counsel.
It would seem clear that since Gideon v. Wainwright, supra, which required counsel in the trial of all serious offenses, was [829]*829retroactive in effect, and since Hamilton v. Alabama, supra, which held that arraignment was a critical stage of a trial, was decided before Gideon and was applied retroactively by White v. Maryland, supra, decided after Gideon, the United States Supreme Court has, without regard to time or date of the proceeding, required that the defendant have counsel or waive counsel in state proceedings when he pleads guilty to a serious offense at arraignment.
If this were not sufficient to determine this question, the express language of the United States Supreme Court in recent cases certainly should set the matter at rest.
In Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5 (1968), the court said:
“In White v. Maryland an accused pleaded guilty when arraigned at a preliminary hearing, and at that time had no counsel to represent him. We held that Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L. Ed.2d 114, was applicable, as only the aid of counsel could have enabled the accused to know all the defenses available to him and to plead intelligently. White v. Maryland is indistinguishable in principle from the present case; and zve hold that it is applicable here although it was not decided until after the arraignment and trial in the instant case.
“The right to counsel at the trial (Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733) ; on appeal (Douglas v. California, 372 U.S. 353, 9 L.Ed.2d 811, 83 S.Ct. 814); and at the other ‘critical’ stages of the criminal proceedings (Hamilton v. Alabama, supra) have all been made retroactive, since the ‘denial of the right must almost invariably deny a fair trial.’ See Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199, 1203.” (Emphasis supplied.)
In McMann v. Richardson, 397 U.S. 759, at p. 771, 90 S.Ct. 1441, at p. 1449, 25 L.Ed. 2d 763 (1970), it was said at p. 773, footnote 14:
“Since Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R. 2d 733 (1963), it has been clear that a defendant pleading guilty to a felony charge has a federal right to the assistance of counsel. See White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963); Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5 (1968). * * *”
Along with others, I deplore the possible results of these holdings, which may set at liberty some who are guilty because lapse of time and other circumstances prevent their retrial now. However, the Constitution of this nation places the judicial supremacy in the United States Supreme Court, and I am obligated to follow its interpretations of that Constitution. I am of the opinion that this court is required to order an evidentiary hearing in this case to determine whether the applicant had coun[831]*831sel or waived his right to counsel when he pleaded guilty to the charge which resulted in the sentences under attack.
In McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), the defendant had a lawyer, and the court concluded that Rule 11 of the Federal Rules of Criminal Procedure required a federal district judge to inform one pleading guilt}7 of his constitutional rights even when counsel was present. Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969), relied upon in the concurring opinion, simply refused to make Rule 11 as interpreted in McCarthy retroactive. By analogy we may determine that the rationale of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), which made the rationale of McCarthy v. United States, supra, applicable to the states, would not have retroactive effect. (It should be noted, however, that in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), footnote #4, the United States Supreme Court stated that it had not determined whether Boykin was prospective or retroactive in effect.) The second case relied upon in the concurring opinion, Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966), simply held that Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which dealt with voluntariness of confessions and with the right to counsel during interrogation, were to be prospectively applied. State ex rel. Ardoin v. Henderson, 255 La. 1029, 233 So.2d 923, did not in my opinion decide squarely the issue here presented. Nevertheless, if it did, I believe it is in error and should be overruled. (See dissent in Ardoin.)