Opinion
No. 50812.
September 25, 1970.
IN RE: VERNELL THOMPSON APPLYING FOR WRIT OF HABEAS CORPUS.
Writ denied: The showing made does not warrant the exercise of our original or supervisory jurisdiction, since the trial court was entitled to deny the application without an evidentiary hearing. See La. Code Crim.P. Art. 354.
BARHAM, J., is of opinion the writ should be granted ordering an evidentiary hearing. See dissenting opinion.
I am of the opinion that the writ should be granted ordering the trial court to hold an evidentiary hearing. First, the fact that relator has other sentences to serve does not affect his right to be set at "liberty" from the sentence under attack if he shows merit under his complaint. "Liberty" as used in Louisiana Code of Criminal Procedure Article 354 means liberty from the detention under the particular order or judgment alleged to be erroneous which acts as detainer of the relator. That an applicant may still be legally detained under other orders does not affect this right.
Second, the pleadings allege that when relator pleaded guilty, he did not have counsel and did not waive his right to counsel. The minutes and the record are silent in that regard. The writ cannot be denied under the "petition" and "attached documents", as provided by Code of Criminal Procedure Article 354, and therefore a hearing is required on this issue. See my dissent from refusal to grant the writ in State ex rel. Johnson v. Henderson, No. 50824 on our docket, 256 La. 825, 239 So.2d 347.
As to relator's claim under Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967), for relief because of absence of counsel at a hearing on revocation of probation, see State ex rel. Shaw v. Henderson, No. 49607 on our docket, writs denied 253 La. 327, 218 So.2d 44, and Shaw v. Henderson, 430 F.2d 1116 (C.C.A. 5th 1970), which distinguished Mempa v. Rhay and found it inapplicable to Louisiana hearings on revocation of probation.