State ex rel. Lofton v. Henderson

Supreme Court of Louisiana

State ex rel. Lofton v. Henderson

247 So. 2d 397, 258 La. 584, 1971 La. LEXIS 4371

CourtSupreme Court of Louisiana

DecidedMay 13, 1971

DocketNo. 51389

StatusPublished

Cited by5 cases

This text of 247 So. 2d 397 (State ex rel. Lofton v. Henderson) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State ex rel. Lofton v. Henderson, 247 So. 2d 397, 258 La. 584, 1971 La. LEXIS 4371 (La. 1971).

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Opinion

In re: Benjamin C. Lofton applying for writ of review.

Writ denied. Showing made does not justify the exercise of our jurisdiction.

BARHAM, J., dissents from the refusal of the writ and will assign written reasons. BARHAM, Justice, is of the opinion the writ should be granted.

The record before us reflects absolutely that the defendant pleaded guilty without benefit of counsel. The minutes do not show waiver of counsel. Under Carnley v. Cochran, 369 U.S. 506, 82 SCt. 884, 8 L.Ed.2d 70 (1962), it was found that that record did not show that the trial judge offered and the petitioner declined counsel. The conclusion in Carnley was: “Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but [585]*585intelligently and understandingly rejected the offer. Anything less is not waiver.” 8 L.Ed.2d at p. 77.

In the case before us the minutes are silent as to whether defendant was offered counsel and waived counsel. Moreover, the majority of our court for the purpose of considering this writ have acknowledged that even considering the evidentiary hearing, the defendant was not offered counsel and did not waive counsel at the plea of guilty. The plea of guilty is a critical stage of the proceedings, and a plea could not have been entered without waiver of counsel.

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In re: Benjamin C. Lofton applying for writ of review.

Writ denied. Showing made does not justify the exercise of our jurisdiction.

BARHAM, J., dissents from the refusal of the writ and will assign written reasons. BARHAM, Justice, is of the opinion the writ should be granted.

The record before us reflects absolutely that the defendant pleaded guilty without benefit of counsel. The minutes do not show waiver of counsel. Under Carnley v. Cochran, 369 U.S. 506, 82 SCt. 884, 8 L.Ed.2d 70 (1962), it was found that that record did not show that the trial judge offered and the petitioner declined counsel. The conclusion in Carnley was: “Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but [585]*585intelligently and understandingly rejected the offer. Anything less is not waiver.” 8 L.Ed.2d at p. 77.

In the case before us the minutes are silent as to whether defendant was offered counsel and waived counsel. Moreover, the majority of our court for the purpose of considering this writ have acknowledged that even considering the evidentiary hearing, the defendant was not offered counsel and did not waive counsel at the plea of guilty. The plea of guilty is a critical stage of the proceedings, and a plea could not have been entered without waiver of counsel.

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Bluebook (online)

247 So. 2d 397, 258 La. 584, 1971 La. LEXIS 4371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-lofton-v-henderson-la-1971.

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