prepared and edited by Rosario Russell Muscianisi. Typographical
errors were corrected, references outside the scope of the 14th
Article of Amendment, such as a discussion about the Utah
Rehabilitation-of-Prisoners Program, were omitted. Otherwise, the
text below is verbatim, none of it has been modified in any way.]
Utah 2d 403, ; 439 P.2d 266;
Utah LEXIS 733,
J. DYETT, Plaintiff, v. John W. TURNER, Warden, Utah State Prison,
Court of Utah
Del B. Rowe, Salt Lake City, for plaintiff.
L. Hansen, Atty. Gen., Salt Lake City, for defendant.
Ellett, Justice. Callister, J., concurs in the result. Henriod, J.,
concurs in the result and reasoning. Crockett, Chief Justice
(concurring in the result). Tuckett, J., concurs in the concurring
opinion of Crockett, C. J.
The plaintiff, Mr. Dyett, is confined in the state prison of the
State of Utah as a result of a plea of guilty entered to a charge of
issuing a check against insufficient funds with intent to defraud.
He filed a petition for a writ of habeas corpus in the Federal
District Court here, which was denied. Thereafter he filed an amended
petition in the same court. At the time of denying this amended
petition the judge wrote a memorandum decision in which he indicated
a disposition to release the petitioner from prison but thought he
could do so only after all state remedies had been exhausted. He
the amended petition for a writ of habeas corpus must be and is
hereby denied, without prejudice to the filing of a further petition
at such time as plaintiff may have exhausted his state remedies upon
the specific claim herein discussed.
is clear from the foregoing authorities that plaintiff had a
constitutional right to be represented by counsel before the state
district court at the time of his plea of guilty and that the facts
appearing of record do not establish waiver of that right as a matter
of law. Whether an understanding, intelligent and voluntary waiver
is shown by a preponderance of the evidence calls for a judgment on
the facts on which there now is no record determination by state
authority which is controlling upon this court under 28 U.S.C. 2254
as amended by Pub.L. 89-711, 80 Stat. 1104. We feel that our
decision in this matter should not be subject to reversal by inferior
courts of the federal system. However, it is rather obvious that
such a proceeding is likely to occur unless we turn the prisoner
loose upon society. While we deplore such a situation as is now
foisted upon the states by various rulings of the United States
Supreme Court and acts of Congress based upon such rulings, yet we
want it understood that we do not think the particular Utah federal
district judge is in any manner to blame. He acts under the
direction of the Supreme Court of the United States and must
faithfully carry out the law as he believes that court would have him
to do. We personally know him to be one of the finest of men, an
excellent lawyer, and a good judge. What we have to say hereafter is
not meant as any reflection upon him in any manner whatsoever.
situation presents an opportunity to review the constitutional
provisions in order to determine if any rights of this defendant have
first direct our attention to the Sixth Amendment to the Constitution
of the United States, which so far as material provides:
all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, and to have the Assistance of Counsel for
does not say he shall have counsel. It only says he shall have the
right to have the assistance of counsel for his defense, and the
right to have counsel does not justify a court in forcing a lawyer
upon an accused who does not want one. See State v. Penderville, 2
Utah 2d 281, 272 P.2d 195; Moore v. State of Michigan, 355 U.S. 155,
78 S.Ct. 191, 2 L.Ed.2d 167.
understand this amendment, one must look to the situation which
prevailed at the time of the adoption of the first ten amendments.
In England a defendant in a misdemeanor case had the right to have
counsel with him in court. A felony charge being initiated by the
Crown was looked upon as a different matter, and one accused of
felony was not permitted to contest with the Crown by means of a
lawyer. In fact, it was not until 1836 that a defendant accused of a
felony in England was permitted the right to have counsel in court.
See 21 Am.Jur.2d, Criminal Law 309. It was the fear of the states
that the newly created federal entity might attempt to follow the
Crown in refusing a defendant the right to have counsel which caused
this amendment to be written into the so-called Bill of Rights. This
was simply a limitation upon the Federal Government and in nowise was
supposed to be applicable to the states. In fact, the Tenth
Amendment was adopted to make sure that the federal entity did not
take unto itself any powers not specifically granted to it. That
powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States
respectively, or to the people.
over 140 years more than 70 justices of the Supreme Court
consistently held that the first ten amendments to the Constitution
applied as a limitation to the Federal Government only and not in any
manner to the states, and for 70 years following the so-called
adoption of the Fourteenth Amendment some 35 justices from every
corner of the Nation have held that the Fourteenth Amendment did not
make the first ten amendments applicable to the states. Some of
those justices had helped to frame the original Constitution and the
first ten amendments and had worked to secure the adoption thereof.
Others had participated in the war between the states and were
acquainted at firsthand with the purposes intended to be accomplished
by the Fourteenth Amendment. All of them interpreted the
Constitution, including the amendments, with knowledge and wisdom
born of intimacy with the problems which had called forth the
documents in the first place.
United States Supreme Court, as at present constituted, has departed
from the Constitution as it has been interpreted from its inception
and has followed the urgings of social reformers in foisting upon
this Nation laws which even Congress could not constitutionally pass.
It has amended the Constitution in a manner unknown to the document
itself. While it takes three fourths of the states of the Union
to change the Constitution legally, yet as few as five men who have
never been elected to office can by judicial fiat accomplish a change
just as radical as could three fourths of the states of this Nation.
[emphasis by RRM.] As a result of the recent holdings of that
Court, the sovereignty of the states is practically abolished, and
the erstwhile free and independent states are now in effect and
purpose merely closely supervised units in the federal system.
do not believe that justices of once free and independent states
should surrender their constitutional powers without being heard
from. We would betray the trust of our people if we sat supinely
by and permitted the great bulk of our powers to be taken over by the
federal courts without at least stating reasons why it should not be
so. By attempting to save the dual relationship which has heretofore
existed between state and federal authority and which is clearly set
out in the Constitution, we think we act in the best interest of our
feel like galley slaves chained to our oars by a power from which we
cannot free ourselves, but like slaves of old we think we must cry
out when we can see the boat heading into the maelstrom directly
ahead of us; and by doing so, we hope the master of the craft will
heed the call and avert the dangers which confront us all. But by
raising our voices in protest we, like the galley slaves of old,
expect to be lashed for doing so. We are confident that we will not
be struck by 90 per cent of the people of this Nation who long for
the return to the days when the Constitution was a document plain
enough to be understood by all who read it, the meaning of which was
set firmly like a jewel in the matrix of common sense and wise
judicial decisions. We shall not complain if those who berate us
belong to that small group who refuse to take an oath that they will
not overthrow this government by force. When we bare our legal
backs to receive the verbal lashes, we will try to be brave; and
should the great court of these United States decide that in our
thinking we have committed error, then we shall indeed feel honored,
for we will then be placed on an equal footing with all those great
justices who at this late date are also said to have been in error
for so many years.
addition to what we have said about the meaning of the Federal
Constitution, we are disturbed in the attitude of the criminal
element in our society since the federal courts have arrogated unto
themselves the powers and duties which rightfully belong to the state
courts. It is a daily occurrence when some known burglar or thief
flouts a police officer and threatens to "get his badge,"
and threatens the trial judge with having him taken before the judge
of the federal court.
At this point the opinion discusses the Utah
rehabilitation-of-prisoners program, which was omitted as not being
directly related to the 14th Amendment discussion. The opinion
continues below immediately after that discussion.]
regard to the Fourteenth Amendment, which the present Supreme Court
of the United States has by decision chosen as the basis for invading
the rights and prerogatives of the sovereign states, it is
appropriate to look at the means and methods by which that amendment
was foisted upon the Nation in times of emotional stress. We have no
desire at this time to have the Fourteenth Amendment declared
unconstitutional. In fact, we are not asked to do that. We merely
want to show what type of a horse that Court has to ride in order to
justify its usurpation of the prerogatives of the states.
is common knowledge that any assumption of power will always attract
a certain following, and if no resistance is offered to this show of
strength, then the asserted powers are accepted without question.
It is therefore our purpose to try to give a ray of hope to all
those who believe that the states are capable of deciding for
themselves whether prayer shall be permitted in schools, whether
their bicameral legislatures may be composed of members elected
pursuant to their own state constitutional standards, yes, and even
whether a prisoner who says he does not want counsel shall be turned
loose because the court did not tell him that he could have one for
method of amending the Federal Constitution is provided for in
Article V of the original document. No other method will accomplish
this purpose. That article provides as follows:
Congress, whenever two thirds of both Houses shall deem it necessary,
shall propose Amendments to this Constitution, or, on the Application
of the Legislatures of two thirds of the several States, shall call a
Convention for proposing Amendments, which, in either Case, shall be
valid to all Intents and Purposes, as Part of this Constitution, when
ratified by the Legislatures of three fourths of the several States,
or by Conventions in three fourths thereof, as the one or the other
Mode of Ratification may be proposed by the Congress;
Civil War had to be fought to determine whether the Union was
indissoluble and whether any state could secede or withdraw
therefrom. The issue was settled first on the field of battle by
force of arms, and second by the pronouncement of the highest court
of the land. In the case of State of Texas v. White, 7 Wall. 700, 19
L.Ed. 227, it was claimed that Texas having seceded from the Union
and severed her relationship with a majority of the states of the
Union, and having by her ordinance of secession attempted to throw
off her allegiance to the Constitution of the United States, had thus
disabled herself from prosecuting a suit in the federal courts. In
speaking on this point the Court at page 726, 19 L.Ed. 227 held:
therefore, Texas became one of the United States, she entered into an
indissoluble relation. All the obligations of perpetual union, and
all the guaranties of republican government in the Union, attached at
once to the State. The act which consummated her admission into the
Union was something more than a compact; it was the incorporation of
a new member into the political body. And it was final. The union
between Texas and the other States was as complete, as perpetual, and
as indissoluble as the union between the original States. There was
no place for reconsideration, or revocation, except through
revolution, or through consent of the States.
therefore as transactions under the Constitution, the ordinance of
secession, adopted by the convention and ratified by a majority of
the citizens of Texas, and all the acts of her legislature intended
to give effect to that ordinance, were absolutely null. They were
utterly without operation in law. The obligations of the State, as a
member of the Union, and of every citizen of the State, as a citizen
of the United States, remained perfect and unimpaired. It certainly
follows that the State did not cease to be a State, nor her citizens
to be citizens, of the Union. If this were otherwise, the State must
have become foreign, and her citizens foreigners. The war must have
ceased to be a war for the suppression of rebellion, and must have
become a war for conquest of subjugation.
conclusion therefore is, that Texas continued to be a State, and a
State of the Union, notwithstanding the transactions to which we have
referred. And this conclusion, in our judgment, is not in conflict
with any act or declaration of any department of the National
government, but entirely in accordance with the whole series of such
acts and declarations since the first outbreak of the rebellion. It
is necessary to review the historical background to understand how
the Fourteenth Amendment came to be a part of our Federal
Lee had surrendered his army on April 9, 1865, and General Johnston
surrendered his 17 days later. Within a period of less than six
weeks thereafter, not one Confederate soldier was bearing arms. By
June 30, 1865, the Confederate states were all restored by
presidential proclamation to their proper positions as states in an
indissoluble union, and practically all citizens thereof had been
granted amnesty. Immediately thereafter each of the seceding states
functioned as regular states in the Union with both state and federal
courts in full operation.
Stat. 758 (1865). A few citizens were excepted from the amnesty
proclamation, such, for example, as civil or diplomatic officers of
the late confederate government and all of the seceding states;
United States judges, members of Congress and commissioned officers
of the United States Army and Navy who left their posts to aid the
rebellion; officers in the Confederate military forces above the rank
of colonel in the Army and lieutenant in the Navy; all who resigned
commissions in the Army or Navy of the United States to assist the
rebellion; and all officers of the military forces of the Confederacy
who had been educated at the military or naval academy of the United
States, etc., etc.
Lincoln had declared the freedom of the slaves as a war measure, but
when the war ended, the effect of the proclamation was ended, and so
it was necessary to propose and to ratify the Thirteenth Amendment in
order to insure the freedom of the slaves.
11 southern states having taken their rightful and necessary place in
the indestructible Union proceeded to determine whether to ratify or
reject the proposed Thirteenth Amendment. In order to become a part
of the Constitution, it was necessary that the proposed amendment be
ratified by 27 of the 36 states. Among those 27 states ratifying the
Thirteenth Amendment were 10 from the South, to wit, Louisiana,
Tennessee, Arkansas, South Carolina, Alabama, North Carolina,
Georgia, Mississippi, Florida, and Texas.
the 39th Congress assembled on December 5, 1865, the senators and
representatives from the 25 northern states voted to deny seats in
both houses of Congress to anyone elected from the 11 southern
states. The full complement of senators from the 36 states of the
Union was 72, and the full membership in the House was 240. Since it
requires only a majority vote (Article I, Section 5, Constitution of
the United States) to refuse a seat in Congress, only the 50 senators
and 182 congressmen from the North were seated. All of the 22
senators and 58 representatives from the southern states were denied
Resolution No. 48 proposing the Fourteenth Amendment was a matter of
great concern to the Congress and to the people of the Nation. In
order to have this proposed amendment submitted to the 36 states for
ratification, it was necessary that two thirds of each house concur.
A count of noses showed that only 33 senators were favorable to the
measure, and 33 was a far cry from two thirds of 72 and lacked one of
being two thirds of the 50 seated senators.
it requires only a majority of votes to refuse a seat to a senator,
it requires a two thirds majority to unseat a member once he is
seated. (Article 1, Section 5, Constitution of the United States)
One John P. Stockton was seated on December 5, 1865, as one of the
senators from New Jersey. He was outspoken in his opposition to
Joint Resolution No. 48 proposing the Fourteenth Amendment. The
leadership in the Senate not having control of two thirds of the
seated senators voted to refuse to seat Mr. Stockton upon the ground
that he had received only a plurality and not a majority of the votes
of the New Jersey legislature. It was the law of New Jersey and
several other states that a plurality vote was sufficient for
election. Besides, the Senator had already been seated.
Nevertheless, his seat was refused, and the 33 favorable votes thus
became the required two thirds of the 49 members of the Senate.
the House of Representatives it would require 122 votes to be two
thirds of the 182 members seated. Only 120 voted for the proposed
amendment, but because there were 30 absententions it was declared to
have been passed by a two thirds vote of the House.
it requires two thirds of the full membership of both houses to
propose an amendment to the Constitution or only two thirds of those
seated or two thirds of those voting is a question which it would
seem could only be determined by the United States Supreme Court.
However, it is perhaps not so important for the reason that the
amendment is only proposed by Congress. It must be ratified by three
fourths of the states in the Union before it becomes a part of the
Constitution. The method of securing the passage through Congress is
set out above, as it throws some light on the means used to obtain
ratification by the states thereafter.
had been admitted to the Union, and so the Secretary of State in
transmitting the proposed amendment announced that ratification by 28
states would be needed before the amendment would become part of the
Constitution, since there were at the time 37 states in the Union. A
rejection by 10 states would thus defeat the proposal.
March 17, 1867, the proposed amendment had been ratified by 17 states
and rejected by 10, with California voting to take no action thereon,
which was equivalent to rejection. Thus the proposal was defeated.
of the ratifying states, Oregon, had ratified by a membership wherein
two legislators were subsequently held not to be duly elected, and
after the contest the duly elected members of the legislature of
Oregon rejected the proposed amendment. However, this rejection came
after the amendment was declared passed.
the fact that the southern states had been functioning peacefully for
two years and had been counted to secure ratification of the
Thirteenth Amendment, Congress passed the Reconstruction Act, which
provided for the military occupation of 10 of the 11 southern states.
It excluded Tennessee from military occupation, and one must suspect
it was because Tennessee had ratified the Fourteenth Amendment on
July 7, 1866. The Act further disfranchised practically all
white voters and provided that no senator or congressman from the
occupied states could be seated in Congress until a new constitution
was adopted by each state which would be approved by Congress, and
further provided that each of the 10 states must ratify the
proposed Fourteenth Amendment, and the Fourteenth Amendment must
become a part of the Constitution of the United States before the
military occupancy would cease and the states be allowed to have
seats in Congress.
the time the Reconstruction Act had been declared to be the law,
three more states had ratified the proposed Fourteenth Amendment, and
two -- Louisiana and Delaware -- had rejected it. Then Maryland
withdrew its prior ratification and rejected the proposed Fourteenth
Amendment. Ohio followed suit and withdrew its prior ratification,
as also did New Jersey. California, which earlier had voted not to
pass upon the proposal, now voted to reject the amendment. Thus 16
of the 37 states had rejected the proposed amendment.
spurious, nonrepresentative governments seven of the southern states
which had theretofore rejected the proposed amendment under the
duress of military occupation and of being denied representation in
Congress did attempt to ratify the proposed Fourteenth Amendment.
The Secretary of State on July 20, 1868, issued his proclamation
wherein he stated that it was his duty under the law to cause
amendments to be published and certified as a part of the
Constitution when he received official notice that they had been
adopted pursuant to the Constitution. Thereafter his certificate
contained the following language:
whereas neither the act just quoted from, nor any other law,
expressly or by conclusive implication, authorizes the Secretary of
State to determine and decide doubtful questions as to the
authenticity of the organization of State legislatures, or as to the
power of any State legislature to recall a previous act or resolution
of ratification of any amendment proposed to the Constitution;
whereas it appears from official documents on file in this Department
that the amendment to the Constitution of the United States, proposed
as aforesaid, has been ratified by the legislatures of the States of
[naming 23, including New Jersey, Ohio, and Oregon];
whereas it further appears from documents on file in this Department
that the amendment to the Constitution of the United States, proposed
as aforesaid, has also been ratified by newly constituted and newly
established bodies avowing themselves to be and acting as the
legislatures, respectively, of the States of Arkansas, Florida, North
Carolina, Louisiana, South Carolina, and Alabama;
whereas it further appears from official documents on file in this
Department that the legislatures of two of the States first above
enumerated, to wit, Ohio and New Jersey, have since passed
resolutions respectively withdrawing the consent of each of said
States to the aforesaid amendment; and whereas it is deemed a matter
of doubt and uncertainty whether such resolutions are not irregular,
invalid, and therefore ineffectual for withdrawing the consent of the
said two States, or of either of them, to the aforesaid amendment;
whereas the whole number of States in the United States is
thirty-seven, to wit: [naming them];
whereas the twenty-three States first hereinbefore named, whose
legislatures have ratified the said proposed amendment, and the six
States next thereafter named, as having ratified the said proposed
amendment by newly constituted and established legislative bodies,
together constitute three fourths of the whole number of States in
the United States;
therefore, be it known that I, WILLIAM H. SEWARD, Secretary of State
of the United States, by virtue and in pursuant of the second section
of the act of Congress, approved the twentieth of April, eighteen
hundred and eighteen, hereinbefore cited, do hereby certify that if
the resolutions of the legislatures of Ohio and New Jersey ratifying
the aforesaid amendment are to be deemed as remaining of full force
and effect, notwithstanding the subsequent resolutions of the
legislatures of those States, which purport to withdraw the consent
of said States from such ratification, then the aforesaid amendment
has been ratified in the manner hereinbefore mentioned, and so has
become valid, to all intents and purposes, as a part of the
Constitution of the United States.
Stat. 707 (1868).
was not satisfied with the proclamation as issued and on the next day
passed a concurrent resolution wherein it was resolved "That
said fourteenth article is hereby declared to be a part of the
Constitution of the United States, and it shall be duly promulgated
as such by the Secretary of State." Thereupon, William H.
Seward, the Secretary of State, after setting forth the concurrent
resolution of both houses of Congress, then certified that the
amendment "has become valid to all intents and purposes as a
part of the Constitution of the United States."
set forth in proclamation of Secretary of State, 15 Stat. 709 (1868).
See also U.S.C.A., Amends. 1 to 5, Constitution, p. 11.
Stat. 708 (1868).
Constitution of the United States is silent as to who should decide
whether a proposed amendment has or has not been passed according to
formal provisions of Article V of the Constitution. The Supreme
Court of the United States is the ultimate authority on the meaning
of the Constitution and has never hesitated in a proper case to
declare an act of Congress unconstitutional -- except when the act
purported to amend the Constitution. The duty of the Secretary of
State was ministerial, to wit, to count and determine when three
fourths of the states had ratified the proposed amendment. He could
not determine that a state once having rejected a proposed amendment
could thereafter approve it, nor could he determine that a state once
having ratified that proposal could thereafter reject it. The court
and not Congress should determine such matters. Consistency would
seem to require that a vote once cast would be final or would not be
final, whether the first vote was for ratification or rejection.
the case of Leser v. Garnett, 258 U.S. 130, 42 S.Ct. 217, 66 L.Ed.
505, the question was before the Supreme Court as to whether or not
the Nineteenth Amendment had been ratified pursuant to the
Constitution. In the last paragraph of the decision the Supreme Court
said: " As the legislatures of Tennessee and of West Virginia
had power to adopt the resolutions of ratification, official notice
to the Secretary, duly authenticated, that they had done so, was
conclusive upon him, and, being certified to by his proclamation, is
conclusive upon the courts."
order to have 27 states ratify the Fourteenth Amendment, it was
necessary to count those states which had first rejected and then
under the duress of military occupation had ratified, and then also
to count those states which initially ratified but subsequently
rejected the proposal.
leave such dishonest counting to a fractional part of Congress is
dangerous in the extreme. What is to prevent any political party
having control of both houses of Congress from refusing to seat the
opposition and then without more passing a joint resolution to the
effect that the Constitution is amended and that it is the duty of
the Administrator of the General Services Administration to proclaim
the adoption? Would the Supreme Court of the United States still say
the problem was political and refuse to determine whether
constitutional standards had been met?
Stat. 710, 106b (1951), designates the Administrator of General
Services Administration as the one whose duty it is to certify that
an amendment has been ratified.
can it be conceived in the minds of anyone that a combination of
powerful states can by force of arms deny another state a right to
have representation in Congress until it has ratified an amendment
which its people oppose? The Fourteenth Amendment was adopted by
means almost as bad as that suggested above.
a more detailed account of how the Fourteenth Amendment was forced
upon the Nation, see articles in 11 S.C.L.Q. 484 and 28 Tul.L.Rev.
have spoken in the hope that the Supreme Court of the United States
may retreat from some of its recent decisions affecting the rights of
a sovereign state to determine for itself what is proper procedure in
its own courts as it affects its own citizens. However, we realize
that because of that Court's superior power, we must pay homage to it
even though we disagree with it; and so we now discuss the merits of
this case just the same as though the sword of Damocles did not hang
over our heads.
have only one question to decide: Did the defendant below (the
plaintiff in this petition) knowingly, intelligently, and voluntarily
waive counsel? Let us look at the record of what he said at the time
he waived counsel.
COURT: Do you understand that this charge carries with it a penalty
of imprisonment in the Utah State Prison?
DYETT: Yes, sir.
COURT: Do you have a prior record?
DYETT: No, sir.
COURT: Do you have an attorney?
DYETT: No, sir.
COURT: Do you desire to be represented by counsel?
DYETT: No, sir.
COURT: Do you understand that you are entitled to be represented by
COURT: Is it your desire to waive counsel?
DYETT: Yes, sir.
COURT: Are you free on bail?
COURT: The record may show that the defendant has waived his right
Statute allows you additional time before you are required to enter a
plea, or you may waive that time and enter a plea at this time. What
is your desire?
DYETT: I will waive.
COURT: You waive your time?
COURT: And enter a plea now?
COURT: To the charge of issuing a check against insufficient funds,
how do you plead, guilty or not guilty?
DYETT: I plead guilty, and request a probationary --
COURT: Have you conferred with an attorney?
COURT: Why do you think you are entitled to probation?
DYETT: Well, I don't know why. It's just my wishes, probationary.
the time of arraignment the Court asked the defendant why he wrote
the check, and the defendant answered, "Well, just didn't have
any money, and I wrote it. That's all there is to it." He also
said he had written other checks which had not been paid for. The
prosecuting attorney had six of the worthless checks which had been
turned over to the sheriff by merchants who had been defrauded.
defendant was not shown to be illiterate or feeble minded. He was
guilty and knew it and also knew that the State could prove it. He
did not want either a trial or a lawyer. One would have to stretch
his imagination to find that this defendant did want a lawyer. So
much notoriety has been given to the right to counsel on the part of
defendants charged with criminal acts that it is difficult to believe
any grown man who is smart enough to defraud seven merchants into
cashing worthless checks would not know about it.
the case of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed.
1461, 146 A.L.R. 357, it was said:
must be remembered, however, that a judgment cannot be lightly set
aside by collateral attack, even on habeas corpus. When collaterally
attacked, the judgment of a court carries with it a presumption of
regularity. Where a defendant, without counsel, acquiesces in a
trial resulting in his conviction and later seeks release by the
extraordinary remedy of habeas corpus, the burden of proof rests upon
him to establish that he did not competently and intelligently waive
his constitutional right to assistance of Counsel.
the case of Cost v. Boles, D.C., 272 F.Supp. 39, the prisoner had
been convicted in a state court and brought habeas corpus in a
federal court. He testified that the trial court asked him if he
wanted counsel but he did not understand this to mean that if he
could not afford an attorney, one would be appointed for him. In
dismissing the prisoner's petition the court at page 43 said:
the Court feels that the question of whether a defendant "wants"
counsel "fairly implies the availability of the assistance of
the court in obtaining counsel if he wished it." Starks v.
United States, 264 F.2d 797, 800 (4 Cir. 1959). And see Post v.
Boles, 332 F.2d 738, 740 (4 Cir. 1964).
the Court feels that the State has borne its initial burden of
proving Cost's "affirmative acquiescence" in proceeding
case of State v. Gilbert, 78 N.M. 437, 432 P.2d 402 (1967), involved
an attempt by a prisoner to get out of prison on a writ of habeas
corpus on the ground that he did not understandingly and
intelligently waive his right to counsel. The Supreme Court of New
Mexico held that proceedings under the post-conviction remedies were
civil in nature and, therefore, governed by the Rules of Civil
Procedure. The court said:
the burden of proof at the Rule 93 hearing rested on defendant to
establish that he did not competently and intelligently waive his
right to counsel, and this burden required him to so convince the
court by a preponderance of the evidence. [Citations omitted.] He
failed to meet this burden, and we are of the opinion that the
evidence substantially supports the findings of the trial court.
case of Nielsen v. Turner, 20 Utah 2d 181, 435 P.2d 921, is on all
fours with the instant case, and in that case relief was denied to
can see no reason to start talking about who is going to pay a lawyer
until somebody wants one. In fact, it should be remembered that all
the court can do is to appoint a lawyer to work for the client. It
is not the province of the judge to make him do it for free. That
could be taking property without due process of law. The defendant
who commits a crime is entitled to have counsel, but he is not
entitled to a free ride at the expense of the public upon whom he has
just been preying. The widow and the orphan whose breadwinner has
been murdered in cold blood should not be taxed to help the guilty
defendant escape the consequences of his evil deed. He at least
should pay the lawyer for the services rendered if he ever becomes
able to do so. The lawyer under his oath will perform just as
faithfully on credit as he will for cash. For a court to say that a
lawyer will not be faithful to his client who has not paid the fee in
advance is but a reflection upon the standard of ethics of that
particular court. It would not say that when a doctor operates on a
patient who cannot pay, the patient will not receive the best the
doctor can give, and it ill becomes a judge -- who theoretically is
an ex-lawyer -- to say that the lawyer is not as loyal to his client
as the surgeon is to his patient. We are not acquainted with any
lawyer who would not put forth his best efforts in behalf of his
client simply because he had not been paid for his services.
plaintiff (defendant below) is guilty and admits it. He said he did
not want a lawyer, and we should respect his wish.
bringing the instant writ of habeas corpus before this court, the
petitioner has elected to rely upon the record, since evidence cannot
be presented in testimonial form before this court. It seems clear
to us that he knowingly and intelligently waived counsel, and we,
therefore, deny his petition.
CROCKETT, Chief Justice (concurring in the result):
concur in the order denying the petitioner's release on the ground
that in lawful and orderly proceedings he stands convicted and
sentenced of the crime for which he is imprisoned; and as is stated
near the conclusion of Justice Ellett's opinion this case "is on
all fours" with the case of Nielsen v. Turner, 20 Utah 2d 181,
435 P.2d 921. See also Syddall v. Turner, 20 Utah 2d 263, 437 P.2d
194, and State v. Workman, 20 Utah 2d 178, 435 P.2d 919, recently
decided by this court.