United States ex rel. Miner v. Erickson

428 F.2d 623

Opinions

BLACKMUN, Circuit Judge.

Nelson Howard Miner, who is an enrolled Cheyenne Indian now 47 years of age and a prisoner in the South Dakota penitentiary, filed his application for a writ of habeas corpus with the United States District Court for the District of South Dakota. He sought relief from his 1962 plea of guilty on a state charge of child molestation (two girls aged 6 and 4, respectively, who were nieces of Miner and also enrolled Cheyennes), in violation of S.D.Code of 1939 § 13.1727 (Supp. 1960)

* — now S.D.Comp.Laws 1967 §§ 22-22-7 to -10. Chief Judge Nichol held a full hearing at which counsel appeared for Miner and at which Miner was the sole witness. The transcript of the 1962 state court arraignment and sentence and those of the 1966 and 1968 postconviction state proceedings, hereinafter referred to, were introduced in evidence. After the hearing Judge Nichol denied the application. United States ex rel. Miner v. Erickson, 303 F.Supp. 960 (D.S.D.1969). However, he issued the certificate of probable cause required by 28 U.S.C. § 2253. Miner appeals.

The molestation charge was lodged against Miner in March 1962. He was arraigned before Judge Leslie R. Hersrud in the Circuit Court of Dewey County, South Dakota, on March 28 and, without counsel entered his plea of guilty. With a presentence report showing many prior offenses by Miner, the court imposed a sentence of 15 years.

Four years later, in August 1966, Miner instituted post-conviction proceedings in the Circuit Court for Dewey County pursuant to South Dakota Session Laws 1966, ch. 121, now S.D.Comp.Laws 1967, ch. 23-52. Counsel was appointed for Miner. In that proceeding the arresting sheriff and a justice of the peace testified as to Miner’s arrest, as as to their explaining his rights to him, and as to his being bound over to circuit court. Miner was not present and did not testify in person; an affidavit from him was submitted. Judge Hersrud made findings adverse to Miner on the issue of voluntary waiver of counsel. Relief was denied. There was no appeal.

In April 1968 Miner applied for a writ of habeas corpus in the same state court. Judge Hersrud held a full hearing at which new court-appointed counsel appeared for Miner and at which Miner, the justice of the peace, and the sheriff all testified. Again adverse findings were made on the waiver-of-counsel issue. Relief was denied. There was no appeal.

In January 1969 Miner sought habeas relief in the Circuit Court for Minnehaha County, South Dakota. Counsel was appointed and Miner testified. Again adverse findings, this time by Judge Burns, were made on the waiver issue. The application was denied. There was no appeal.

The present federal application was filed in April 1969.

On our own account we raise the question, as did Judge Nichol, whether state remedies have been exhausted, as 28 U.S.C. § 2254 requires, or have been deliberately bypassed. Miner was represented by a Dupree, South Dakota, attorney in the 1968 Dewey County proceeding. In connection with the federal hearing Miner produced copies of three letters he wrote from the penitentiary to this lawyer in June and September 1968. In these he expressed his desire to appeal the state habeas matter to the South Dakota Supreme Court and requested the attorney to take that step on his behalf. Wholly aside from any reason why the appeal was not taken, our examination of those letters convinces us that Miner did pot deliberately bypass his right to appeal so as to bar the present federal proceeding. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

We turn to the merits.

As Judge Nichol pointed out, 303 F.Supp. at 962, the sole question is whether Miner, when he submitted his plea of guilty at his arraignment in March 1962, knowingly and intelligently waived his right to counsel. We have carefully reviewed the transcript of that hearing before Judge Hersrud and we set forth in the Appendix the pertinent portions of the colloquy between Miner and the court.

In Miner’s brief here it is acknowledged that Judge Hersrud “spent considerable time and effort advising Miner of his rights” and, indeed, “fully explained Miner’s rights”. The argument, however, is that on all Miner’s previous criminal offenses, save one, he had had no lawyer; that on all he “received either small fines, short jail sentences, or suspended sentences” (he testified it was never more than 30 days); that Judge Hersrud did nothing to explain that molestation “was different from all of the other eases that Miner had been involved with” (he testified, “I didn’t think I would be over in the penitentiary at all” and “I didn’t know that I was going to get this much”); that no attorney was appointed to see that he understood this difference; that there was nothing “to show that Miner was alerted to the need for counsel any more * * * than in previous cases”; that, although he “had been in criminal court some 30 times” and in 1942 had served federal time, on “all other charges he paid a small fine or served a month or less in the County Jail”; that he had acquired “a learned or conditioned response” because he found that if he agreed with the judge and did not cause trouble, “he would get a light sentence” (“I said yes because that way he [the judge] wouldn’t ask me any questions”); that the court this time “said the same things that the appellant had heard before when he received a light sentence”; that even the sheriff did not treat him differently, for he let him “out in the day and locked him up at night”; that this experience disarmed him; that Miner thus possessed no experience which he could use to advantage ; that he “was less qualified to pass upon the issue of whether he should have a lawyer than a person with no experience”; that a lawyer would have been aware that Miner did not expect such a long sentence; that Miner did not fully understand the need for a lawyer; that he possessed limited education; and that the more serious the charge and the greater the sentence, the greater the defendant’s need to understand.

As is common in these eases, no assertion is made here that Miner was innocent of the state crime with which he was charged.

The assistance of counsel at every critical stage of a felony proceeding pending in a state court is, of course, a cherished right. It is guaranteed by the sixth amendment and by that amendment’s application to the states through the fourteenth amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). It is guaranteed as well by the South Dakota Bill of Rights, S.D.Const., art. YI § 2 and § 7, and it is implemented as to indigents by S.D.Comp. Laws 1967 § 23-2-1 (Supp.1969) and § 23-35-11 or, at the time of Miner’s sentence, by S.D.Code of 1939 §§ 34.1901 and 34.3506 (Supp.1960). Indeed, the Supreme Court of South Dakota, even prior to Gideon v. Wainwright, has repeatedly recognized and enforced this right. State v. Haas, 69 S.D. 204, 8 N.W.2d 569, 570 (1943); State ex rel. Henning v. Jameson, 71 S.D. 144, 22 N.W.2d 731, 732 (1946); State ex rel. Parker v. Jameson, 75 S.D. 196, 61 N.W.2d 832, 833 (1953); State v. Hillerud, 76 S.D. 476, 81 N.W.2d 130, 131-132 (1957); State ex rel. Warner v. Jameson, 77 S.D. 340, 91 N.W.2d 743, 744 (1958); State ex rel. Stevenson v. Jameson, 78 S.D. 431, 104 N.W.2d 45 (1960); State ex rel. Burns v. Erickson, 80 S.D. 639, 129 N.W.2d 712, 715 (1964); In re Trevithick, 81 S.D. 121, 131 N.W.2d 440, 441 (1964); State ex rel. Pekarek v. Erickson, 155 N.W.2d 313, 314 (S.D.1967); State v. Buffalo Chief, 155 N.W.2d 914, 917 n. 1 (S.D.1968); State v. Goode, 171 N.W.2d 733, 734 (S.D.1969).

The right to counsel may be waived, of course, if the waiver is “made voluntarily and intelligently by a competent mind.” State v. Haas, supra, 8 N.W.2d at 570; State v. Hillerud, supra, 81 N.W.2d at 132; State ex rel. Baker v. Jameson, 72 S.D. 638, 38 N.W.2d 441, 444 (1949); State ex rel. Warner v. Jameson, supra, 91 N.W.2d at 745; State v. Thomlinson, 78 S.D. 235, 100 N.W.2d 121, 122 (1960); In re Trevithick, supra, 131 N.W.2d at 441; S.D.Comp.Laws § 23-2-7 (1967); and S.D.Code of 1939 § 34.2905 (Supp.1960). All this echoes the general law. Carter v. Illinois, 329 U.S. 173, 67 S.Ct. 216, 91 L.Ed. 172 (1946); Escobedo v. Illinois, 378 U.S. 478, 490 n. 14, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Butler v. United States, 317 F.2d 249, 258 (8 Cir. 1963), cert. denied, 375 U.S. 836, 838, 84 S.Ct. 67, 77, 11 L.Ed.2d 65; Johnson v. United States, 318 F.2d 855, 856 (8 Cir. 1963); Minor v. United States, 375 F.2d 170, 172 (8 Cir. 1967), cert. denied, 389 U.S. 882, 88 S.Ct. 131, 19 L.Ed.2d 177.

The South Dakota court has gone so far as to say that a defendant has the constitutional right to waive counsel and to defend himself in person. State ex rel. Burns v. Erickson, supra, 129 N.W.2d at 716. On the other hand, the state court has emphasized the duty of the trial judge fully to advise a defendant of his rights. State ex rel. Henning v. Jameson, supra, 22 N.W.2d at 732; S.D.Comp.Laws 1967 § 23-35-19; S.D.Code of 1939 § 34.2302 (Supp.1960). It is said, too, that there is no presumption that a defendant charged with a felony and not represented by counsel understands his fundamental rights and waives them by a plea of guilty. “On the contrary, the courts indulge every reasonable presumption against such waiver.” State ex rel. Henning v. Jameson, supra, 22 N.W.2d at 732-733; State ex rel. Warner v. Jameson, supra, 91 N.W.2d at 745.

The habeas applicant has the burden of proving that he did not waive his right to counsel. State ex rel. Warner v. Jameson, supra, 91 N.W.2d at 745.

It is a principle long established that whether there has been an intelligent waiver of the right to counsel depends upon the particular facts and circumstances of the case including the accused’s background, experience, and conduct. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 92 L.Ed. 309 (1948); In re Trevithick, supra, 131 N.W.2d at 441. Voluntariness or involuntariness usually is a question of fact. Johnson v. United States, supra, 318 F.2d at 856. See. Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); Gallegos v. Colorado, 370 U.S. 49, 55, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962); Jarrett v. United States, 423 F.2d 966 (8 Cir. 1970).

In commenting upon the desirability of appointment of counsel, the South Dakota court has stressed five things:

“We have in mind cases where the accused is young, inexperienced in criminal procedures; of questionable mental competency; lacking in education ; o.r in any case where the gravity of the penalty or complexity of the crime seemingly dictates such procedure.” State v. Thomlinson, 78 S.D. 235, 100 N.W.2d 121, 122 (1960).

These factors, or most of them, also are referred to in State ex rel. Burns V. Erickson, supra, 129 N.W.2d at 716, and in In re Trevithick, supra, 131 N.W.2d at 443. We ourselves recently observed, in connection with the issue of voluntariness of a federal plea,

“The question of involuntariness raised by petitioner always presents a troublesome issue in that the subjective mind of the petitioner is in question but resolution of that factual issue most often must be determined by objective evidence.” Ford v. United States, 418 F.2d 855, 858 (8 Cir. 1969) (footnote omitted).

We note, in passing, that the South Dakota Supreme Court has not hesitated to grant habeas relief in appropriate cases. State ex rel. Henning v. Jameson, supra; State ex rel. Warner v. Jameson, supra. See State v. Haas, supra.

We turn to the facts of Miner’s ease. In his brief here he acknowledges his age (40 years old at the time of the acceptance of his plea and of the imposition of sentence by Judge Hersrud) and he flatly concedes that he was of sound mind. He states that he “has no complaint on the question of age or mental competency”. We note that this eliminates immediately two of the five factors stressed by the South Dakota court in Thomlinson, supra, and leaves only inexperience in criminal procedures, lack of education, and gravity of the penalty.

By his own admission, however, Miner was frequently present, as a defendant, in the criminal courtroom. He had been there 30, and perhaps as often as 35 or 40, times. In 1942 he served 9 months and 18 days on a federal charge (rape). On that charge he had been represented by counsel. He possessed some education (to either the fourth or sixth grade; his testimony as to this varied) but he disclaimed the ability to read and write. The possible sentence under the molestation charge was, of course, substantial.

Recognizing that the “caution to be exercised on such occasions [accepting a guilty plea] bears a direct proportion to the gravity of the charge”, State v. Sewell, 69 S.D. 494, 12 N.W.2d 198, 199 (1943), we must conclude, in accord with-Judge Hersrud and Judge Nichol, that the record supports the finding that Miner’s waiver of counsel was voluntary, that all federal constitutional requirements were fulfilled, and, moreover, that all standards of basic fairness were met. A reading of Judge Hersrud’s examination of Miner at the time of arraignment is convincing. This reveals that the court (a) meticulously pointed out to Miner both the seriousness of the offense and the 20-year maximum sentence; (b) repeatedly advised him of the desirability of his being represented by an attorney; (c) told him that he was entitled so to be represented and that, if he had no funds, counsel would be assigned and the fees paid by the county; and (d) had the charge read to him and examined him as to his understanding of that charge.

Miner specifically acknowledged that he knew this was a serious offense; that the court had recommended that he have an attorney; that he understood what indecent molestation of children was; that he understood he could be imprisoned up to 20 years for this; that he knew he also had the right to defend himself; that he knew one is presumed to be innocent until proved guilty or until he admits his guilt; that he knew he possessed the rights of confrontation, of compelling witnesses to appear, and of a speedy, public and fair trial by jury; that he understood he was in court because he had been charged with a serious felony; that he did not want a trial; that he knew he was entitled to one; that he asked to be brought before the judge prior to the next regular term because “I want to get the sentence over with”; that no one talked him into this; that he appeared of his own free will; that he did not think there were any facts which a lawyer could present which would help him; that he understood the information which was read to him; and that he understood that any plea he would make must be voluntary.

The record discloses that Miner’s answers were specific. The testimony, set forth in the state transcripts, of the justice of the peace and of the sheriff as to their explanations to Miner of his rights to counsel are corroborative.

It is difficult to conceive of a situation where the sentencing judge could have inquired in much more depth or with much more particularity. Yet he received positive and unequivocal answers from Miner. It is easy to say, in retrospect seven years after the event, that it may have been better if the state court had appointed counsel. But if relief is to be granted here, we would be required to ignore everything Miner said in response to the court’s questions and to conclude that in eases such as this counsel must routinely be appointed and a trial forced. We then shall have reached the point where a plea of guilty cannot be accepted without counsel. That day may soon be upon us, but it is not for this court to say that it is here now when there are so many decisions on the books recognizing the waiver right.

In closing, we emphasize that we are not impressed with the suggestions made as to Miner’s race, his inexperience with serious criminal charges, and the gentle treatment he received from the sheriff. We would not insult his justly proud race by assuming a lesser ability on his part to understand than is possessed by another person, not an American Indian, of like age and education. The other arguments strike us only as a new variable on an old situation and as unpersuasive. See State ex rel. Parker v. Jameson, supra, 61 N.W.2d at 833-834; Jarrett v. United States, supra; In re Stone, 171 N.W.2d 119 (N.D.1969).

The dissent professes profound concern about the jurisdiction of the South Dakota state court to accept Miner’s plea of guilty in 1962 and to impose the sentence which he has been serving. The dissent raises this question of state (not federal) jurisdiction on its own. It is not raised by counsel here. It was not presented to Judge Nichol in the district court. And, so far as we can tell from the record, it has never been presented to the South Dakota courts. We refrain from indulging in advocacy and we defer our consideration of that issue until, if ever, it is properly before us. Our present decision, of course, is without prejudice to Miner’s raising the state court jurisdiction issue by another appropriate application in the appropriate forum.

Affirmed.

Appendix

The transcript of the arraignment of March 12, 1962, reads:

“BY THE COURT:

“Q Is that your true name — Nelson Miner?

“A Yes, sir.

“Q What is your age?

“A Forty.

“Q Do you have an attorney?

“A No, sir.

“Q Now, this is a serious criminal offense and is punishable by imprisonment in the South Dakota State penitentiary for not more than 20 years which makes it a very serious criminal offense and the Court believes that in such a case a man should be represented by an attorney. You know of course that you are entitled to be represented, if you so desire. You know that?

“A Yes.

“Q And that in any criminal action in circuit court where it is shown that the defendant is without means and unable to employ counsel the court shall assign counsel for his defense whose duty it shall be to appear for and defend the accused upon the charge against him and counsel so assigned shall be paid by the county. Now, you understand that you are entitled to be represented by an attorney?

“A Yes, sir.

“Q And, if you were without means and funds to hire one you would still be entitled to an attorney and that the court would appoint one for you. Do you understand that?

“A Yes.

“Q Do you want an attorney?

“A No, sir.

“Q What? I didn’t hear your answer?

“A No, sir.

“Q You understand that it is a serious offense do you ?

“A I do uh-huh.

“Q By that do you mean yes?

“A Yes, sir.

“Q How much education have you had?

“A Sixth grade is all.

“Q Sixth grade. Do you understand what I am discussing with you here in court?

“A Yes, sir.

“Q And you know this is a serious offense ?

“A Yes, sir.

“Q And you wish — you want the court to understand that you do not want an attorney. Is that right?

“A That is right.

“Q You understand that the court has recommended to you that you do have an attorney. You do understand that?

“A Yes, sir.

“Q Very well. I understand that the states attorney has filed an information charging you with indescent molestation of children. Do you understand what that is ?

“A Yes, sir, I do.

“Q And as I have told you you can be imprisoned up to 20 years in the penitentiary for that offense. Do you understand that?

“A Yes, I understand.

“Q And it is a felony. It is a serious offense. Now, in addition to this right to be represented by an attorney you also have a right to appear in court and defend yourself. Now, I want to ask you if you understand that you have that right?

“A Yes, sir.

“Q You also have the right to demand the nature of the charge or accusation against you and to have a copy of it. Do you understand that you have that right?

“A Yes, sir.

“Q You understand too that every person is presumed to be innocent of the charge against them unless they either admit their guilt or are proven to be guilty. Do you understand that?

“A Yes, sir.

“Q You also have the right to meet the witnesses against you face to face in open court to see and to hear them testify. Do you understand that you have that right?

“A Yes, sir.

“Q You also have the right to have compulsry [sic] process of the law served for obtaining witnesses in your own behalf. Do you understand that you have that right ?

“A Yes.

“Q And the right to a speedy and a public trial by an impartial jury of the county in which the offense is alleged to have been committed in this case Dewey County, South Dakota. That means that you are brought to trial speedily at the next term of the court and that you have an impartial trial. That means a fair trial. Do you understand that you have a right to that?

“A Yes, sir.

“Q Now, is there anything about your being brought here or coming before the judge today that you don’t understand?

“A No, sir.

“Q You understand you are here because they charge you have committed a serious felony?

“A Yes, sir.

“Q Now, do you want a trial? That means to determine whether or not you are guilty or not guilty or innocent ?

“A No, sir.

“Q You do not want a trial?

“A No, sir.

“Q You know that you can have one and that [you] are entitled to it?

“A Yes, sir.

“Q Now, that is not regular time for the trial of cases in this county. That is in May. Now, did you ask to be brought here before the judge today?

“A Yes, sir.

“Q Was it your idea to come here?

“A I want to get the sentence over with.

“Q You want to get it over with?

“A Yes, sir.

“Q And is that why you are here today?

“A Yes, sir.

“Q Did you decide that yourself?

“A Yes.

“Q No one tried to talk you into that?

“A No, sir.

“Q And you understand that if you would enter a plea of guilty all this court would have left to do would be to sentence you. Do you understand that?

“A Yes.

“Q Now, are there any facts that you think a lawyer could present for you that would help your case in any way?

“A No, sir, I don’t think so.

“Q You don’t think so?

“A No.

“Q Are you appearing here today of your own free will?

“A Yes, it is my free will.

“Q Are you ready at this time to enter a plea to the information?

“A Yes, sir.

“Q Mr. Aberle:

MR. ABERLE: Here Mr. Nelson is a copy of the information which I have filed against you and which I will read at this time.

“(The information was read aloud and in full at this time)

“Q Nelson Miner, I will ask you if you understand what has been going on here in court?

“A Yes, sir, I understand.

“Q I will again ask you, if you would like to consult with an attorney about this matter?

“A No, sir.

“Q Now, Nelson Miner, you have heard the states attorney, Mr. Aberle, read the information charging you with the crime of indecent molestation of minor children under the age of 15 years and the names are Colleen Marie La-Plant of the age of six years and Rita Nadine LaPlant of the age of four years. Now, do you understand what you are charged with?

“A Yes, sir.

“Q Now, before I ask you what your plea will be I must impress upon you that any plea that you make must be voluntary and it must be of your own free will. Do you understand that?

“A Yes, sir.

“Q Are you ready to enter your plea?

“A Yes, sir.

“Q Very well then what is your plea to this information charging you with indecent molestation of— that is, committing lewd and lascivious acts, deeds, signs and performances and conduct upon the persons of Colleen Marie La-Plant of the age of six years and Rita Nadine LaPlant of the age of four years — in other words, that you did commit the crime of indecent molestation of children. Now, what is your plea — guilty or not guilty.

“A Guilty.

“Q Let the plea of guilty be entered. The defendant stands convicted in this court of the offense of indecent molestation of minor children. Now, I want to ask you if you know of any legal reason why sentence should not be pronounced upon you?

“A No, sir.

“Q Is that — is there any fact or facts about you that you think the court should know about ?

“A I don’t believe so.

“Q Every defendant upon conviction for a felony is entitled to 24 to 48 hours or longer on good cause shown between the time of conviction and sentence. Do you understand that you have that right between the time of conviction and sentence? Do you understand that?

“A Yes, sir.

“Q Do you wish to have the sentencing done at a later time or would you rather that the court would do it today ?

“A I would rather have it done today.

“Q You understand that you would then have to waive this right to time between conviction and sentence, do you ? Do you understand that?

“A Yes, sir.

“Q Now, is there any fact or facts surrounding either yourself or the commission of this offense that you wish to present to the court?

“A No, sir.

“Q Is that anything that you want to tell me?

“A No, sir.

“Q To your knowledge is there anything wrong with your with you?

“A The only thing is when I am drinking.

“Q Do you think there is anything wrong with your mind ?

“A No, just drink.

“Q In other words that you don’t know what you are doing when you are drinking, is that what you mean?

“A Yes.

“Q Did you know these children?

“A Yes.

“Q Did they live close to where you were living?

“A I was staying with them at the time.

“Q With these LaPlant’s ?

“A Yes.

“Q Were their parents and you living in the same house?

“A Yes, sir.

“Q Have you ever been in trouble before?

“A Yes.

“Q What kind of trouble?

“A I was up here before you once before three or four years ago.

“Q What was that for ?

“A- Grand larceny.

“Q Did you serve any time in the penitentiary ?

“A No, you gave me a two year suspended sentence.”

Section 13.1727 read in part:

“Any person who shall willfully and unlawfully commit any lewd or lascivious act upon or with the body, or or any part or member thereof, of a child under the age of fifteen years, with the intent of arousing, appealing to, or gratifying the lust or passion or sexual desires of such person, or of such child, shall be guilty of the crime of indecent molestation of a child.

“Every person guilty of indecent molestation of a child is punishable by imprisonment in the South Dakota State Penitentiary for not more than twenty years, provided, however, that if death results to a minor child as a result of such indecent molestation the offense shall be deemed murder, and punishable as such.”