Yarborough v. State , 6 N.C. App. 663 ( 1969 )

171 S.E.2d 65 (1969) 6 N.C. App. 663

Charles YARBOROUGH, Petitioner,
v.
STATE of North Carolina, Respondent.

No. 697SC554.

Court of Appeals of North Carolina.

December 17, 1969.

Atty. Gen. Robert Morgan and Staff Atty. Howard P. Satisky for the State.

Robert M. Wiley and Samuel S. Woodley, Jr., Battle, Winslow, Scott & Wiley, Rocky Mount, for petitioner appellant.

CAMPBELL, Judge.

The petitioner in his original petition and in the amended petition asserted that his constitutional rights had been violated and therefore he was being illegally restrained. He alleged the following violations:

1. He was given an excessive sentence on the secret assault charge.

2. He had been inproperly induced and coerced to submit a plea of guilty.

3. He had been improperly interrogated and incriminating statements procured thereby.

4. He had not been provided with counsel in apt time and counsel had not properly prepared the case for trial.

The evidence introduced at the hearing was adequate to show that an attorney was appointed for the defendant and that this attorney interviewed the defendant and investigated the case prior to and after the signing of the order making the formal appointment; that this attorney adequately investigated the case and prepared for trial. Thus the evidence amply supports the finding of fact made by Judge Hubbard that the appointed attorney, Mr. Davenport, made an investigation and had ample time to do so and prepare for trial. Likewise the evidence was ample to support the finding of Judge Hubbard that the defendant did not enter a plea of guilty to assault with intent to commit rape because of any coercion, fear or other improper inducement.

There is no evidence in the record to support the finding of fact by Judge Hubbard that the defendant "effectively waived his right to counsel." He was advised, according to the evidence, that he did not have to make any statement to the Sheriff, and that any statement that he might make could be used against him in court. This warning was given to him by the Sheriff before the defendant made any statement to the Sheriff, but this was the only warning given to him and nothing was said about an attorney. The defendant was arrested and tried in August 1964. This was prior to the Miranda decision, and the Miranda decision is not retroactive. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A.L.R. 3d 974 (1966); Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966). The defendant made no request for an attorney, and no warning concerning an attorney was required. The requirements of the Escobedo case were complied with. Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964). Compare with State v. Williams, 269 N.C. 376, 152 S.E.2d 478 (1966).

The record in this case does not show that the defendant made any incriminating statements which in any way affected his trial and the pleas of guilty which he entered. Nor does it show that Judge Hubbard made a finding with regard to the contention of the defendant that he had received an excessive sentence on the secret assault charge.

In view of the fact that (1) Judge Hubbard found that the defendant "effectively waived his right to counsel" when there is no evidence to support such a finding, (2) that Judge Hubbard failed to make any finding whatsoever with regard to the contention of the defendant that he had been given an excessive sentence on the secret assault charge and (3) that Judge Hubbard's order fails to indicate any determination that the defendant entered pleas of guilty freely, knowingly, understandingly and voluntarily, we think that the order entered by Judge Hubbard is deficient. See State v. McKinnon, 4 N.C.App. 299, 166 S.E.2d 534 (1969).

The Appellate Court cannot find the facts. It is incumbent upon the trial court to find the facts and such facts must be supported by some evidence in the record. In the instant case the trial court found facts not supported by any evidence in the record and failed to find essential facts even though there was evidence in the record pertaining thereto.

This case is remanded to the Superior Court of Nash County for findings of fact and conclusions of law based thereon in keeping with the contentions set forth in the petition and amended petition and the evidence which was introduced.

FRANK M. PARKER and GRAHAM, JJ., concur.