TUCKER v. STATE

TUCKER v. STATE
1971 OK CR 450
490 P.2d 1108
Case Number: A-16842
Decided: 11/03/1971
Oklahoma Court of Criminal Appeals

An appeal from the District Court of Osage County; Don H. Hampton, Judge.

Everett Tucker was convicted for the crime of Murder, and his punishment was fixed at life in the state penitentiary, and he appeals. Affirmed.

Robert P. Kelly, Bruce W. Gambill, Pawhuska, for plaintiff in error.

Larry Derryberry, Atty. Gen., Paul Crowe, Asst. Atty. Gen., for defendant in error.

BUSSEY, Presiding Judge.

¶1 Everett Tucker, hereinafter referred to as defendant, entered a plea of guilty in the District Court of Osage County, Oklahoma for the offense of Murder. On May 13, 1935, his punishment was fixed at life imprisonment, and from said judgment and sentence, an application for postconviction relief was denied by the trial court of Osage County on April 22, 1971, and from said order denying postconviction relief, an appeal has been perfected to this Court.

¶2 The defendant asserts four propositions of error, which allege that his constitutional rights were violated, in that he did not intelligently waive his right to counsel, and further, that he entered the plea of guilty because of threats made by the county attorney concerning the electric chair. At the hearing on defendant's petition for post-conviction relief, the trial court after reviewing the court's records and hearing the testimony of the defendant, made the following findings of fact and conclusions of law:

"1. That the defendant was duly charged by criminal complaint of the crime of Murder on March 25, 1935, and a warrant for his arrest was issued; "said defendant was arrested on May 10, 1935 and was taken before W.E. Schwaba, Justice of the Peace, with jurisdiction to hear said criminal complaint; and apparently upon having his rights explained to him at his arraignment, he waived the right to a Preliminary Hearing and was bound over to the District Court for further proceedings.

"The Court finds that on May 13 of said year, defendant was brought before the Honorable Jesse J. Worten, Judge of the District Court of Osage County, who again advised him of right to counsel which defendant declined, and entered his plea of guilty to the charge of Murder, and sentenced to life imprisonment.

"2. The Court finds that during the time the defendant was incarcerated, that he was in a cell in the county jail of Osage County with his brother, who was charged as the co-defendant in this case.

"3. The Court finds that the Clerk's minutes reflect that said defendant did not have an attorney, and that he did not desire an attorney.

"4. The Court further finds that although the defendant was of limited formal education, there is nothing in his testimony to show that he was coerced or threatened; further that he was not at any time mistreated by any law officer and, however, he might have been made aware of the possible punishment of the crime of Murder he received the minimum punishment, life imprisonment.

"5. The Court further finds that some thirty-six years have transpired since this sentencing, that none of the endorsed witnesses to this Court's knowledge are still alive.

"6. The Court further finds that the defendant's testimony was, and is, the only testimony available except the existing records and minutes of the District Court Clerk's office of Osage County.

"7. The Court further finds that the defendant, although he was only nineteen years of age when arrested, that he was with his brother at all times, and his brother apparently had some experience with court proceedings, having been previously convicted of a Felony and served a term of years in the federal prison of Leavenworth, Kansas.

"Conclusions of Law: The District Court of Osage County, Oklahoma, had full jurisdiction over said defendant at all times material to the Application filed herein and, "further, that the defendant voluntarily waived his right to a Preliminary Hearing, and voluntarily waived his right to counsel, that the defendant received a minimum number of years for the charge of Murder; that he was not coerced or threatened, the said plea was voluntary; thirty-six years having elapsed prior to this hearing, and that the Petitioner was denied no rights afforded him by either the Constitution of the State of Oklahoma, or the United States of America.

"Wherefore, it is the ORDER, JUDGMENT, and DECREE of this Court that the Application of Post-Conviction Relief, is hereby denied and defendant is allowed an exception."

We have carefully examined the defendant's testimony and the records, and after considering such, are of the opinion that the trial court's findings of fact and conclusions of law are supported by the Record. We have previously held that where such a conflict between the parties as to what actually happened before, during, and after arraignment, the minutes of the Court will be given great weight. The trial court's denial of postconviction relief is hereby affirmed.

BRETT, J., concurs.