# Petition for Writ of Certiorari — Ferguson v. Ohio > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0847%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1971 - **Citation:** 401 U.S. 955 ## Text Reasons For Granting the Writ 1. The Holdings Below Run Counter to This Court's Rule That Any Warver of Fundamental Constitar- tronal Rught Must Be Shown on the Record 1 Tl. The Case Affords the Court an Opportunity to eo 6. aa. Alewander » State, 228 S24 BOS (Mine Sap. Tae) | Baylin» Alaborn, 385 US. 238 (1888) Kercheval ¢ United States, 274 U.S. 228 (1827) Kren v. Koloski, 4 Obie St~2d 88, 212 N.E-2d G83 (1885) Peaple ¢ Johnson, 2 Mich. App. 182. 089 N.W.2d 137 (1888) Peaple v. Mackey, 33 1.24 438, 211 NEMA Jes (1985) State v. Eeworth, 415 P.2d T28 (Mont. Sup. C. 1888) United States ox rel. Crosby v. Brierley, 404 F.2d 790 (34 Cir. 1968) United States ex rel. Fear +. Commonwealth of Pa. 423 F.2d SS (3d Cir. 1970) United States ex rel. Fink v. Rundle, 414 F.2d 542 (34 Cir. 1968) United States ex rel. Hughes v. Rundle, 419 F.2d 116 (34 Cir. 1968) | United States ex rel. McCloud v: Rundle, 402 F.2d 853 (34 Cir. 1968) 12 Pourteenth Amendment Chie Reviwd Cede See 2901 06 See 2953.21 WUSC HG) Othe 97 ALR. 2d 548, 552 tte Sree Court of te Und Ste e ° cme WE, OR — Ne. PRETVTION FOR A WRIT OF CERTIORAL: e Vo che Supreme Court of Ghie. ¢ “a, The petitioner, Leon Ferguson, asks that a Writ of Certioran issue to review the sudgment of the Supreme Court of Obw. made and entered on September 24. 1970 (App. pp. 28. 21) denying petgoner's movons for appeal of nght and for leave to appeal The consequence of the demal of these motions was the affirmante of the judgment of the Ohio Court of Appeals affirming the dismissal by the Court of Commen Pleas of Richland County. Ohio. of The Supreme Court of Obvo did not wnite an opinion im this case. Its final orders are found in Appendix pp. 20-21. The per curiam memorandum opinion of the Court of Appeals for the Fifth Appellate District of Ohio is un- | reported but. is reproduced in Appendix p. 18. The journal entry for the Court of Appeals is contained in Appendix p. 19. The Court of Common Pleas of Rich- ha land County issued no opinion but the journal entry con- taiming its findings of fact and conclusions of law is set out in Appendix pp. 15-17. SURISDICTION. The final judgment of the Supreme Court of Ohio was entered on September 24, 1970. The jurisiiction of this Court is invoked under 28 U.S.C. § 1257(3). Petitioner claims his conviction was acquired in violation of rights, QUESTION PRESENTED. Whether petitioner was denied the Due Process of Law guaranteed by the Fourteenth Amendment when he was convicted of manslaughter and sent to prison for a period of up to 20 years without a trial and on the basis of a record which reveals the following: 1. Petitioner at no time waived any constitutional 2. Petitioner at no time entered a guilty plea nor acknowledged that the guilty plea entered by his lawyer was entered on his behalf. 3. Petitioner was never advised by the trial court of his constitutional rights. 4. Petitioner was never apprised by the trial court of the possible consequences of a guilty plea. THE CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED. United States Constitution Amendment VI: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have ascertained by law, and ‘o be informed of the nature and cause of the accusation; to be confronted with the wit- nesses against him; to have compulsory process for ob- taining witnesses in his favor, and to haverthe assistance of counsel for his defense. Amendment XTV (quoted in pertinent part): * * * No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person ‘of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal pro- tection of the laws. Section 2901.06, Ohio Revised Cede: No person shall unlawfully kill another. Whoever violates this section, except in the manner described in sections 2901.01 to 2901.05, inclusive, of the Revised Code, is guilty of manslaughter in the first degree, and shall be imprisoned not less than one nor more than twenty years. Section 2953.21, Ohio Revised Cede: (A) Any person convicted of a criminal offense or adjudged delinquent claiming that there was such a denial te eA DE Nee © 4 or infringement of his rights°as to render the judgment void or voidable under the Ohio Constitution or the Con- stitution of the United States, may file a verified petition at any tame in the court which imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file such sup- porting affidavit and other documentary evidence as will (B) The clerk of the court in which the petition is filed shall docket the petition and bring it promptly to the attention of such court. A copy of the petition need not » be served by the petitioner on the prosecution attorney. The clerk of the court in which the petition is filed shall immediately forward a copy of the petition to the prosecu- ting attorney of that county. (C) Before granting a hearing the court shall de- In making such a determination, the court shall consider, in addition to the petition and supporting affidavits, all the files and records pertaining to the proceedings against the petitioner, including but not limited to the indictment, the court's journal entries, the journalized records of the clerk of court, and the court reporter's transcript. Such court reporter's transcript if ordered and certified by the court shall be taxed as court costs. If the court dismisses the petition it shall make and file findings of fact and con- clusions of law with respect to such dismissal. (D) Within ten days after the docketing of the peti- tion, or within such further time as the court may fix for good cause shown, the prosecuting attorney shall respond by demurrer, answer, or motion. Within twenty days from the date the issues are made up either party may 5 P move for summary judgment as provided im section 2311.04 (2311.06.1| of the Revised Code. A bill of ex- ceplons 1s not necessary in seeking summary judgment The nght to such judgment must appear on the face of the (E) Uniess the petition and the files and records of the case show the petitioner is not entitled to relief, the court shall proceed to a prompt hearing on the rssues, hold the hearing, and make and file wntten findings of fact and conclusions of law upon entering judgment thereon. (F) At any time before the demurrer, answer, or motion is filed, the petitioner may amend his petition with or without leave or prejudice to the proceedings. The petitioner may amend his petition with leave of court at any time thereafter. (G) If the court finds grounds for granting relief, it shall, by its judgment, vacate and set aside the judgment, and shall, in the case of a prisoner in custedy, discharge or resentence him or grant a new trial as may appear ap- propriate. The court may also make supplementary orders > Go cls quakt, cman ea eniiie 40: ap raignment, retrial, custody, and bail. (H) Upon the filing of a petition pursuant to this section by a prisoner in a penal institution who has re- of the judgment challenged by the petition. 6 STATEMENT OF THE CASE. Petitioner was charged with murder in the second degree in the Court of Common Pleas of Richland County, Ohio. He appeared for arraignment en February 10, 1964, and entered a plea of not guilty. Subsequently an addi- tional plea of not guilty by reason of insanity was filed in writing and petitioner was sent to Lima State Hospital for psychiatric tests. An order by the Court of Common Pleas dated May 8, 1964, states that the report from the psychiatrist was received and that petitioner would be considered sane. On May 22, 1964, petitioner again appeared in. the Court of Common Pleas and was found guilty of man- slaughter on the basis of a plea entered allegedly. on his behalf by his attorney. The record reveals that at this May 22 arraignment: (a) The Court had no communication with petitioner personally until after the guilty plea was accepted. (b) The Court at no time advised petitioner of his constitutional rights. (c) The Court at no time apprised petitioner of the possible consequences of a plea of guilty. (d) The Court at no time asked petitioner whether he was guilty of manslaughter or of any other offense. (e) The Court at no time received a guilty plea from petitioner personally. in ails seaineieand Si aliaiien cy hin tai curred after the Court accepted the guilty plea offered by petitioner's attorney. The pertinent part of y 22 proceedings is as follows: / | 7 The Court: Well, we have here a charge of second degree murder, | believe. Are we ready for Mr. Lesesn: At this time, your Henor, I would like to state that the-— The Court: I guess he did plead not guilty and not guilty by reason of insanity” Mr. Stokes: | Defense Counsel | Yes, your Honor. rH i : H +] a 3 | the Comet dead oant tn amen, thin Sdontoeh wash . The Court: Mr. Prosecutor, do you join in that Mr. Larson: Having heard the motion, I approve of the motion on behalf of the State of Ohio and join _ im the motion, and the State would be willing to ac- te aint. giggles, aac acento 8 The Court: All right, in that event I sustain the Petitioner has been incarcerated in the Ohio State Penitentiary since shortly after May 22, 1964. On June 30, 1969, he filed a petition for post-conviction relief under section 2953.21, Ohio Revised Code. The third paragraph of the petition states in part: Defendant says that he was convicted and sentenced to the Ohio State Penitentiary in violation of his right to due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution. A certified copy of the complete transcript of the May 22 arraignment was attached to the petition.’ The Court de- ‘The Court of Common Pleas in its journal entry of Oc- contain the proceedings of the arraignment Pebeomy 6. 1964, at which defendant entered a plea of not guilty. r F nied relief and in its journal ¢ntry of October 31, 1969, Appendix at p. 16, stated “that the constitutional issues - his constitutional rights in that we will undertake this on behalf of our client. . Pleas Wis rights explained to him at the first ment, the Court did not order the proceedings transcribed. fendant contended that the initial arraignment was totally ir- NREL Ie ARIES ARG RUINS! RN RIS, UTA GRAEM NLT yy TRIN I D> 10 at the “earlier time” petitioner had plead not guilty, and in spite of the fact that there is no evidence in the record to him, the Court of Appeals of Richland County affirmed lief states “that on May 22, 1964, a plea of guilty of man- slaughter in the first degree was entered for him by his attorney without his understanding or agreement.” Noth-— 12 Hi. The Case Affierds the Court an Opportunity to Clarify Whether a pro-Beykin Guilty Plea May Stand im the Absence of a Record Showing the Pica Was Velun- Its undisputed that the proceedings below are invalid under Boykin v. Alebame,\ 385 US. 238 (1969). -It has been held that the doctrine enunciated in Boykin does not apply retrospectively, see United States ex rel. Hughes rv. Rundle, 419 F.2d 116 (3d Cir. 1969). Even if this Court should agree with such a view, “the mere fact that peti- tioner was convicted before the effective date of Boykin (June 2, 1969) does not deprive him of the right to a hearing on his claim that his guilty plea was constitution- ally inGrm.” United States ex rel. Fear v. Commonwealth of Pa., 423 F.2d 55, 56 (3d Cir., 1970). The burden of proof to sustain a guilty plea in the absence of a record showing the plea was voluntarily, knowingly and intelli- gently made, is en the prosecution. United States ex rel. Fink v. Rundle, 414 F.2d 542 (3d Cir. 1969); United States ex rel. Crosby v. Brierley, 404 F.2d 790 (3d Cir. 1968) ; United States ex rel. McCloud v. Rundle, 402 F.2d 853 (3d Cir. 1968). The prosecution assumed no such burden here relying solely on a record which petitioner submits is inadequate even under pre-Boykin standards. those standards are and the extent to which a pre-Boykin defendant is protected by the Due Process Clause of the Fourteenth Amendment. : It ishimportant to note that well before the Boykin decision, state courts held that a judge must advise a defendant of his constitutional rights; must advise him of the possible consequences of a guilty plea; must com- municate with him personally; and must assure that the plea of guilty is entered knowingly, intelligently and i 13 voluntarily. See Knauf v. Keloski, 4 Ohio St. 2¢ 86, 88, 212 N.E.2d 603, 604 (1965): State v. Ellsworth, 415 P.2d 728 (Mont. Sup. Ct. 1966); People v. Mackey, 33 Iii. 2d 436, 211 N.E2d 706 (1965); and People v. Johnson, 2 Mich. App. 182, 139 N.W.2d 137 (1966). These decisions speak of “fundamental nghts” and ‘constitutional stand- ards”; they clearly involve the protection of federal rights rected in the Sixth and Fourteenth Amendments. As stated in 1964, the year of petitioner's conviction, in 97 A.L.R. 2d 549, 552: . ° The fundamental right of an accused to be in- formed of the nature of the crime with which he is Court's communicating with the accused: - The plea of guilty cannot be entered by an attorney alone but must be entered by the defendant personally. Alez- ender v. State, 226 S. 2d 905 (Misc. Sup. Ct. 1969). Oo , 4 14 CONCLUSION. The question of waiver of fundamental rights has for several decades been regarded as one involving substan- tial constitutional questions. Since the facts of the sub- ject case are particularly clear and since the failure of the trial court to observe the most minimal constitutional safe- guards in accepting a guilty plea is so patent, the Court is urged to allow certiorari, to fortify its holdings on waiver, and to vindicate petitioner's right to Due Process. Respectfully submitted, Jerry Gorpon, Counsel for Petitioner. 15 | APPENDIX. : Case No. 6604 | IN THE COMMON PLEAS COURT OF RICHLAND COUNTY, OHIO STATE OF OHIO, Plaintiff, vs. LEON FERGUSON, Defendant. JOURNAL ENTRY, FINDINGS OF FACT AND CONCLUSIONS OF LAW. (October 31, 1969.) The petition of Leon Ferguson to vacate judgment and sentence pursuant to Section 2953.21 of the Ohio Re- vised Code, upon motion of the State filed in accord with said section and upon examination of the petition, files and records of said case, and in consideration of argu- ments by counsel that petitioner is not entitled to relief. The finding of this Court is based upon the following, to- wit: The Court finds the facts to be that Leon Ferguson was Indicted by the January Term of the Grand Jury in 1964 on a charge of Murder in the Second Degree; that on February 10, 1964, the defendant was arraigned on said Indictment, represented by Attorney Louis Stokes, at which time defendant stated he understood the Indict- ment; that on March 9, 1964, by order of this Court, the defendant was referred to Lima State Hospital, Lima, Ohio for examination in accordance with Section 2945.40 of the Ohio Revised Code; that on May 22, 1964, defend- 16 ant, represented by his attorney, appeared in this Court, upon his return from the Lima State Hospital, Lima, Ohio, and upon said hearing there being no evidence presented or tendered to the Court, other than the report of said state facility, said report was admitted as prima facie evi- dence as to the findings stated therein, to-wit: that the defendant understands the nature of the charges brought against him and can counsel in his own defense, and he would therefore be considered sane; upon consideration thereof the Court found the defendant to be sane; that the defendant moved the Court for leave to withdraw his former plea of Not Guilty and Not Guilty by reason of in- sanity, and to enter a plea of Guilty to Manslaughter in the First Degree and the Prosecuting Attorney having approved and joined in said motion, the Caurt thereupon took said motion under consideration, and upon consider- ation of said motion; it is ordered that the Indictment be amended to a charge of Manslaughter in the First De- gree, whereupon, defendant's plea of Guilty to said amended Indictment is accepted; and the Court inquired of the defendant and his attorney, if he or they had any- thing to say why sentence should not now be pronounced, and the defendant and his attorney had nothing further to say. That the partial transcript of proceedings which was: made a part of defendant's petition demonstrates that it was not the initial arraignment upon Indictment but a subsequent arraignment after return from Lima State Hospital and said partial transcript indicates, on Page 5, that the constitutional issues had been explained to defendant at the initial arraignment upon Indictment. The Court finds, as a conclusion of law, that it has discretion as to whether or not a petition for relief should be granted under authority of Section 2953.21, of the Ohio Revised Code. 17 The Court further finds, as conclusions of law, that defendant was properly Indicted by Grand Jury; that the defendant was properly arraigned on the said Grand Jury Indictment; that defendant was appraised of his consti- tutional rights at said arraignment; that the defendant was represented by an attorney of his choice, Louis Stokes, at said arraignment; that after defendant's return from the Lima State Hospital, Lima, Ohio it was judicially de- termined that the defendant understood the nature of the charge against him and could counsel in his own defense; that the defendant moved the Court to amend the Indict- ment to a charge of Manslaughter in the First Degrge while “represented by an attorney of his choice, Louis Stokes. Accordingly, It Is Onperep, Avsupcep awp Decazep that the petition, files, records and upon argument of counsel the petitioner is not entitled to relief, wherefore, said petition is denied and ordered dismissed. /s/ James J. Maven, Judge. 18 OPINION OF THE COURT OF APPEALS. Case No. 1116 COURT OF APPEALS, FIFTH DISTRICT RICHLAND COUNTY, OHIO STATE OF OHIO, Plaintiff-Appellee, vs. LEON FERGUSON, Defendant-Appellant. By tHe Court: The judgment of the Richland County Common Pleas Court of October 31, 1969, denying post conviction re- lief to the defendant-appellant is affirmed, and the only Assignment of Error alleging “the trial court erred in failing to grant defendant post conviction relief” is upon careful consideration of the entire record and the briefs and oral arguments of counsel, overruled. An entry may be prepared in accordance with this memorandum. Norman J. Putman, LeLaAnp RuTHERFoRD, D. Van Nostran, Judges. 19 OBDER OF THE COURT OF APPEALS. Case No. 1116 COURT OF APPEALS, FIFTH DISTRICT RICHLAND COUNTY, OHIO STATE OF OHIO, Plaintiff-Appellee, vs. LEON FERGUSON, Defendant-Appellant. JOURNAL ENTRY. (Filed March 18, 1970.) This matter coming before this Court as regularly as- signed upon the notice of appeal, assignment of error, the records, briefs and oral arguments of counsel and upon consideration thereof the assignment of error of Defend- ant-Appellant is overruled and the judgment of the Rich- land County Common Pleas Court of October 31, 1969 de- nying post conviction relief to the Defendant-Appellant is Wuenrzrone, It Is Onperzp, Apsupcep anp Decarzep that the judgment hereinbefore described be and the same hereby is affirmed. Exceptions to Defendant-Appellant. Costs herein taxed to Defendant-Appellant. Norman J. PuTMAN, Paut D. Van Nosrran, Lecanp RuTHERForD, Judges. yt eg 2 mee) eu. 20 ORDERS OF THE SUPREME COURT OF OHIO. No. 70-208. THE SUPREME COURT OF THE STATE OF OHIO Tue Strate or Onto, Crry or Cotumsus. 1970 Team. To wit: September 24, 1970. | STATE OF OHIO, Appellee, vs. LEON FERGUSON, Appellant. Appreat From tHe Court or APPEALS ror RicHLtanp County. This cause, here on appeal as of right from the Court of Appeals for Richland County, was heard in the manner prescribed by law, and, no motion to dismiss such appeal having been filed, the Court sponte dismisses the ap- peal for the reason that no tial constitutional ques- tion exists herein. It is further ordered that the appellee recover from the appellant its costs herein expended; that a mandate be sent to the Common Pleas Court to carry this judgment into execution; and that a copy of this entry be certified to the Clerk of the Court of Appeals for Richland County for entry. 21 : THE SUPREME COURT OF THE STATE OF OHIO bd Bs Hs He * (Caption as above ) Manpate To the Honorable Common Pleas Court Within and for the County of Richland, Ohio, Greeting: The Supreme Court of Ohio commands you to pro- coed without delay to carry the following judgment in this cause into execution: Dismissed, Sua Sponte, No Substantial Constitutional Question Involved. THE SUPREME COURT OF THE STATE OF OHIO + + * * & (Caption as above.) Morion vor Lzave To AppeaL From THE Court or Appzats ror RicHLanp County. It is ordered by the Court that this motion is over- ruled. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_0847%3A1. Public record. Not legal advice.