Harding v. State

MR. CHIEF JUSTICE JAMES T. HARRISON

delivered the Opinion of the Court.

This is an original proceeding wherein petitioner seeks a writ of habeas corpus or other appropriate post-conviction remedy. Following an ex parte hearing an alternative order to show cause was issued by this Court on December 20, 1966. An answer was filed by the Attorney General’s office on behalf of the respondents.

On February 13, 1962, the following events took place: (1) Petitioner, John Clifford Harding, was charged in a two-count information with the crimes of grand larceny and attempted rape, both crimes alleged to have been committed on February 6,1962. The information also charged a prior felony conviction. (2) The county attorney made application for leave to file the information direct and the motion was granted. (3) Petitioner was arraigned and pled guilty to both counts of the information and to the charge of prior conviction. (4) The district judge sentenced petitioner to 10 years in the state prison on the charge of grand larceny, and 25 years for the crime of attempted rape, the sentences to run consecutively.

Petitioner alleges “that the proceedings against him were defective and deprived him of the rights guaranteed him by the Constitution of the United States and the Constitution of the State of Montana in the following particulars:

“1. The Petitioner was not advised of his rights to counsel as required by the Sixth and Fourteenth Amendments to the Constitution of the United States, thus depriving him of liberty without due process of law. He was never advised that if he could not afford to hire counsel he could have the benefit of a court-appointed attorney at no cost to himself.

“6. The court did not observe the statutory requirements of section 94-7801, E.C.M.1947 requiring the court to wait two days after the verdict before pronouncing judgment. There was not an intelligent waiver of the time for pronouncing judgment. He could not waive the required time of judgment as he was not informed of his. rights to such time.”

The circumstances leading up to petitioner’s arrest can be stated as follows:

Petitioner was 28 years old. He had only an eighth grade education and was an itinerant farm worker. For several months prior to his arrest he had been a truck driver at a ranch near Chinook, Montana.

On February 6, 1962, petitioner went with his paycheck into the town of Zurich, Montana, and proceeded to get drunk. He drank all day and far into the night. The latter part of this drinking bout he spent thoroughly intoxicated in a bar operated by a lady bartender. As it grew late, all the other patrons left and petitioner and the lady bartender were alone. Petitioner made advances to the bartender, who repulsed him. He persisted and became violent, and the lady bartender ran screaming from the place in search of help.

Alone in the bar, thoroughly drunk, petitioner emptied the money in the cash register into his pockets. He then attempted to open the bar’s safe. "While attempting to do this, petitioner was apprehended by local citizens who had been called by the lady bartender to aid her.

Petitioner remained in jail from the time of his arrest until his arraignment on February 13, 1962. The “transcript of proceedings had on arraignment” is a part of the record before this Court. Since the petitioner alleges that these proceedings were defective, we set them forth in full.

“The Court: State of Montana against John Clifford Harding. The Motion for Leave to file Information is granted, bail is set in the sum of $7,000.00. Stand up, Mr. Harding. Is your true name John Clifford Harding?

“Mr. Harding: Yes, sir.

“The Court: Do you have a lawyer, Mr. Harding?

“Mr. Harding: No, sir.

“The Court: Do you wish to have a lawyer before you enter your plea in this matter?

“Mr. Harding: No, sir.

“The Court: You understand you have a right to have a lawyer if you want one?

“Mr. Harding: Yes, sir.'

“The Court: And you have had a copy of the Information which has been filed against you?

“Mr. Harding: Yes, sir.

“The Court: And you know what you are charged with?

“Mr. Harding: Yes, sir.

“The Court: Are you ready to enter your plea now or do you want further time before you enter your plea?

“Mr. Harding: I enter it now.

“The Court: You have read it over? You don’t care to have me read it over to you?

“Mr. Harding: No, I have read it over.

“The Court: The County Attorney has filed an Information against you. The first count is that you are guilty of the crime of grand larceny, committed in Blaine County, Montana, on or about the 6th day of February, 1962. What is your plea to this Information, guilty, or not guilty?

“Mr. Harding: Guilty.

“The Court: He has further charged in the second count that on the 6th day of February, 1962, you committed the crime of attempted rape in Blaine County, Montana. What is your plea to this Information, guilty or not guilty?

“Mr. Harding: Guilty.

“The Court: Also in the Information I have just read, there is a charge in there that you were previously convicted of a felony on November 18, 1954 in the District Court of the State of Nebraska, charge of burglary?

“Mr. Harding: Yes.

“The Court: And was sentenced from three to seven years in the Nebraska State Prison. Do you admit that or deny it?

“Mr-. Harding: I admit it.- : '

“The Court: Are you ready to have judgment pronounced at this time?

“Mr. Harding: Yes, sir.

“The Court: Very well, it’s the judgment of this Court on the first count that you be confined in the State Penitentiary at Deer Lodge for a term of ten years, and on the second count that you be confined to the State Penitentiary at Deer Lodge for a term of twenty-five years, and that the two sentences shall run consecutively. That’s all.”

It is evident from the “transcript of proceedings had on arraignment” that the district court (1) did not inform the petitioner of his right to have counsel appointed if petitioner could not afford to hire counsel; (2) did not inform the petitioner of the extent of the penalty provided by law for the two crimes petitioner was accused of committing; and (3) did not wait the two days required by section 94-7801, R.C.M.1947, before imposing the sentence.

In State ex rel. Biebinger v. Ellsworth, 147 Mont. 512, 415 P.2d 728, we commented as follows: “In Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70, the court said:

“ * * The record must show, or there must be an allegation and evidence which show that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.’ See also Gideon v. Wainwright, 372 U.S. 335, 83 St.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733.

“It is the duty of the district court to inform the defendant not only that he had a right to counsel, but that if he is without means to employ counsel that counsel would be provided for him by the State without cost to him. Too, it is the trial court’s duty in taking a plea to inform the defendant of the extent of the penalty provided by law. The record must also show that the provisions of section 94-7801, R.C.M.1947, as to the period of time between plea and sentence have been complied with.”

The record before this Court confirms at least the two contentions of the petitioner which we have previously set forth.

Therefore, the commitment in the case of the State of Montana v. John Clifford Harding is annulled, vacated and set aside; the plea of guilty entered in said cause is annulled, vacated and set aside; and a writ of habeas corpus will issue in this matter unless, within ten days from the date of this opinion, the District Court of the Twelfth Judicial District of the State of Montana, in and for the County of Blaine, shall make and enter an order directing the warden of the state penitentiary to forthwith deliver the said petitioner to the sheriff of Blaine County for further proceedings in said criminal action in accordance with the statutes in such case made and provided.

MR. JUSTICES ADAIR, DOYLE and JOHN C. HARRISON, concur.