417 S.W.2d 789 | Tenn. | 1967
delivered the opinion of the Court.
This is another petition for habeas corpus which was originally filed in the Circuit Court of Davidson County, Tennessee, but pursuant to statute was transferred to Franklin County where petitioner was originally tried and convicted.
The present petition is typical of various petitions we have had by inmates of the penitentiary and all of them, or practically all of them, make stereotyped allegations that the petitioner’s constitutional rights have been violated when his conviction was obtained.
The same is true of this petition wherein it is alleged according to a correct summary from the State’s brief, that: (1) he was not furnished a copy of the arrest warrant which was sworn against him; (2) he was not furnished a copy of the indictment returned ag’ainst him; (3) he was not furnished a list of the names of the grand jurors; (4) he was not furnished a list of the names of the petit jurors; (5) he was convicted by a trial jury that was illegally and unlawfully constituted; (6) the convicting court was without jurisdiction to convict and sentence him because the offenses for which he was convicted were defined by an improperly apportioned Legislature; (7) he was not adequately represented by counsel in the lower court because counsel was appointed only fifteen minutes before his trial and counsel failed to request a continuance to investigate his case; (8) he was not advised by the court or his attorney of the conse
This petition was tried after a complete evidentiary hearing at which time the petitioner was represented by court-appointed counsel. After a complete hearing’ the application for the writ of habeas corpus was denied and this appeal results.
The record shows that the petitioner did not testify and that he was advised that the proceedings were of a civil nature and that there would be a presumption that his testimony would be adverse to the allegations of his petition if he did not testify to the factual situation which he alleged in his petition.
The Sessions Judge of Franklin County, who acted as the committing Magistrate, testified that he was the Judge at the preliminary hearing; that at that time he advised the petitioner of his right to be represented by an attorney at said hearing; that the petitioner did not confer with an attorney at the hearing; that the petitioner entered a plea of guilty at the preliminary hearing; and that he, the Judge, did not testify at the trial proceedings where the petitioner entered his plea of guilty to the offenses before the Criminal Court Judge and jury.
At the trial before the court in which he was convicted, and of which he now complains, he was represented by two lawyers who were appointed by the trial court. Both of these lawyers are able and capable attorneys. These
The testimony herein shows likewise that the court advised the petitioner of all his constitutional rights. Counsel testified that he did not recall advising petitioner that he had a right of appeal but that petitioner at no time requested an appeal. It is shown without contradiction that these attorneys advised the petitioner fully as to the sentence which was placed upon him. It is also shown that no juror was challenged because a settlement
This petitioner, before convicted of these offenses which he now seeks to set aside, was apprehended on November 23, 1962, and charged with armed robbery in that he took from a police officer a revolver and $115.00; and he took the automobile which the policeman was driving; and he kidnapped the officer in doing this. These offenses were alleged to have occurred in Franklin County, Tennessee, on the same day that he was apprehended. Petitioner after being apprehended was removed to a neighboring county jail where he was incarcerated pending a preliminary hearing. On the day this was had, November 29, he was transferred to Franklin County where he appeared for the preliminary hearing and the trial in which he was convicted on January 9, 1963, and his conviction carried with it sentences of ten years for armed robbery, three years for the car theft, and two years for kidnapping, which sentences were to run consecutively making a total of fifteen years. An appeal from these judgments was not requested.
The main contention, which is ably made in the brief and was made in oral argument before this Court on this petition for habeas corpus, is based upon the petitioner’s contention that the judgments under which he was convicted are invalid because he was denied effective legal representation; that he is an indigent man with a limited education and was compelled to rely upon the representation of counsel who were appointed by the court at his trial. The argument is made that counsel was not provided until approximately fifteen minutes before the trial,
The assignments setting forth this contention are that he was deprived of his right to be represented by counsel as provided in Article 1, sec. 9, of the Tennessee Constitution which is implemented by T.C.A. sees. 40-1101, 40-2002 and 40-2003; that this Article of the Constitution a,nd these Code Sections were violated in spirit because of the short time counsel was allowed for consultation.
It was further assigned as error that these convictions are invalid because the Judge where this man appeared at the preliminary hearing failed to inquire whether or not he was able to retain counsel and further failed to appoint counsel to represent him in violation of the same constitutional provision. It is further assigned as error that these convictions were invalid because the Sixth Amendment to the United States Constitution made it obligatory at State criminal prosecutions by the Fourteenth Amendment that counsel were supposed to have adequate time, more than was allowed herein, to investigate and prepare a defense; that the mere fact that he only used fifteen minutes shows that it was patently inadequate to permit preparation of such defense; and that his light to the assistance of counsel was denied as provided in the Sixth Amendment to the United States Constitution which
As to petitioner’s allegations as enumerated above that he was not issued copies of the arrest warrant, indictment, a list of the grand jurors and petit jurors, it is shown herein that there was no request made for any of these documents. Certainly, since there was no request made, the question cannot now be raised upon these contentions. Harris v. State, 206 Tenn. 276, 332 S.W.2d 675, and others.
Numbers (5) and (6) of these contentions have been frequently answered by the Court and others against the contentions of the petitioner herein. The malapportionment of the Legislature, etc., has been rejected many times. See in particular State ex rel. Fralix v. Bomar, 214 Tenn. 516, 381 S.W.2d 297.
Thus it is that we now come to the main contention and argument in support of the petitioner’s claim that he has been unconstitutionally convicted of the crimes and the sentences have been unconstitutionally imposed, that is, that counsel who represented him and were appointed to do so could not and did not adequately represent him, because counsel were only appointed to do so fifteen minutes prior to his trial; that having only this much time before the trial that counsel failed to request a continuance to investigate his case.
The Federal Court of the Sixth Circuit held that appointed counsel would be held to be incompetent only if the representation is so lacking as to render the proceeding a farce and a mockery of justice. Schaber v. Maxwell,
Factually in the present case we must view the case from the standpoint that this state of facts is true, that is, that the petitioner here did commit these crimes for which he was charged, and having conceded that he committed them, for him to get the minimum sentence was the best that could possibly be done. Since the petitioner had the right to testify in this habeas corpus proceeding, which was a civil proceeding, and state the facts as he saw them and did not do so and yet he is making this complaint, we must conclude, in view of this fact that the man stated to his appointed lawyers that he had committed these crimes, and that he had no witnesses,
It is charged and alleged in these assignments that the petitioner was not advised of the consequences of his plea nor was it determined whether the plea was freely and voluntarily entered. The lawyer, who was appointed for the petitioner, testified that the sentences were fully explained to the petitioner and further that the plea was freely and voluntarily entered. There being no evidence to the contrary, certainly' this answers this proposition. Then it is alikewise contended in his assignments of error that he was denied appellate review of his conviction because neither the trial court who tried him, nor counsel, advised him of the steps necessary for an appeal. In this habeas corpus proceeding counsel testified that the petitioner did not request an appeal, and, since he received the minimum sentence under each of these offenses, there was nothing logically that the man could appeal from. See State ex rel. Reed v. Heer, 218 Tenn. 338, 403 S.W.2d 310.
It is argued very forcibly by counsel for the petitioner here that his rights were violated because he entered a plea of guilty at his preliminary hearing. It seems to us that there is no prejudice shown in doing this because he entered the same plea at the time he was represented by court-appointed counsel in the original trial, and because he entered a plea of guilty at the preliminary hearing there is not a scintilla of evidence to
Having carefully read this record and considered the questions made herein with care, we are unable to see wherein there has been any error committed herein. The judgment, therefore, must be affirmed.