In Re Miller , 82 Okla. Crim. 269 ( 1946 )

BAREFOOT, J.

Petitioner, W. J. Miller, filed in this court his petition for habeas corpus on January 7, 1946. He alleged that he is serving a sentence in the State Penitentiary at McAlester by reason of a judgment and sentence entered in the district court of McClain county on December 29, 1927, at which time he was charged by information with the crime of robbery by the use of firearms. Attached to the petition is a certified copy of the information, the judgment and sentence, and a copy of the criminal appearance docket of McClain county, in the case of State of Oklahoma v. W. J. Miller, L. M. Miller and L. C. Cruce, No. 1929.

It is alleged in the petition that the judgment and sentence under which petitioner is serving in the Penitentiary is void for the reason that he was sentenced upon a plea of guilty without being informed of his right to counsel, and of being sentenced within two days from the time he was arrested, being sentenced on the same day the information was filed against him. It is also alleged that he “was confined in the county jail without bail and had no opportunity to talk with an attorney or any other person than the county attorney, the sheriff and deputy sheriff.”

A response was filed by the Attorney General on behalf of the warden of the Penitentiary, which contains the following:

“That he denies each and every material allegation in said petition contained, except that respondent holds custody of petitioner by virtue of the judgment and sentence of the district court of McClain County, Oklahoma, duly pronounced by said court on the 29th day of December, 1927, upon a plea of guilty by said petitioner, which judgment and sentence respondent alleges to be regular and legal in all respects.

“Respondent further shows to the court that this petitioner has waited for 18 years to pass before attempting to question the regularity of his sentence; that he has waited until the county attorney and the sheriff who were acquainted with the facts are dead and the recollection of such others that might have had knowledge of the facts has grown dim, and he now asks this court to release him by habeas corpus upon the basis of his willingness to swear to the statements of a petition, some of which at least are plainly untrue and others plainly absurd in view of his alleged claim of ignorance and inexperience and lack of comprehension of the proceedings. On the first page of his petition he swears that he was sentenced ‘just two days after his arrest.’ In the Chaplain’s statement, made after his sentence and incarceration, he stated that he had been held in jail seven days before trial and four days after. The four days were due to the fact that he was sentenced on December 29, 1927, but was not committed to the penitentiary until January 3, 1928.”

No evidence was introduced by petitioner to sustain tbe allegations of his petition. Tbe burden of proof was upon him. Tbe exhibits attached to bis petition are somewhat in conflict with tbe allegations of bis petition. It is revealed by these exhibits, tbe judgment and sentence and tbe criminal appearance docket, that be was advised of bis rights, and that be entered a plea of guilty and waived time to plead. Petitioner alleges that be bad never bad any experience in court procedure, and was unversed in law, uneducated and unable to understand tbe court proceedings and was wholly ignorant of bis statutory and constitutional rights. Tbe allegations of tbe response filed by tbe Attorney General show that petitioner was 27 years of age at tbe time he and bis brother and L. C. Cruce robbed tbe Byers State Bank by tbe use of firearms. That on August 6, 1937, be was granted a parole. That in 1940 be and some companions committed grand larceny in Payne county, and he was tried and given four years in tbe penitentiary. That be has completed bis sentence and is being held by reason of tbe revocation of tbe parole of tbe McClain county sentence.

As above stated, there was no proof offered as to his education and' experience at tbe time be was sentenced in the McClain county case, but tbe above statement indicates that he bad not been much reformed at the time of bis release on parole.

For tbe reasons above stated, tbe petition for habeas corpus is denied.

JONES, P. J., concurs. DOYLE, J., not participating.