APPEAL from the Circuit Court of Brown County, the Hon.
RICHARD MILLS, Judge, presiding.
MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Tilford R. Bowman pleaded guilty to burglary in the circuit court of Brown County on April 6, 1966, and was sentenced to three to five years imprisonment. Seven months later he filed a pro se post-conviction petition, counsel was appointed for him, and on February 20, 1967, an amended petition was filed alleging that the burglary conviction was void because his guilty plea was coerced and entered without the benefit of assistance of counsel. After a full evidentiary hearing the trial court denied the petition holding petitioner had failed to show a substantial denial of his constitutional rights. This appeal is from that denial.
The record establishes Bowman was taken into custody by the sheriff of Brown County and a McDonough County deputy about 6:30 P.M. on January 4, 1966. The next morning petitioner signed a written confession in which he admitted that he had burglarized a store in Brown County. The confession shows that before he made any incriminating remarks petitioner was warned that he had a right to consult an attorney, immediately if he wished, that his answers could be used against him in any future court proceeding, that no promises could be made to him, and that his statement must be made voluntarily without threats or promises of any kind. The statement further reveals Bowman responded that he did not wish to see an attorney, and he proceeded to admit that he and two others had taken part in the burglary during which he carried a .22 calibre revolver, and that his car was used for transportation. On the evening following his confession the petitioner escaped from the Brown County jail.
Bowman was again apprehended in Coeur d'Alene, Idaho, on April 1, 1966, and returned to the Brown County jail on April 3 by the Brown County sheriff and a Schuyler County deputy. The docket entries of the Brown County circuit court show that on April 4, 1966, petitioner was brought before the court, informed of the burglary charge against him and served with a copy of the complaint. The judge advised petitioner of his right to counsel, found him to be indigent, and granted his request for counsel, appointing A.L. Pezman. On the following day, April 5, petitioner and his attorney attended a preliminary hearing where the State presented evidence that Bowman had admitted the burglary. Probable cause being shown, petitioner was bound over to the grand jury, bond was set at $10,000, and defense counsel stated that the petitioner stood on his right to be indicted by the grand jury.
On April 6 Bowman appeared in court without Attorney Pezman, who was then in Chicago, waived indictment and pleaded guilty to the burglary charge. He contends on this appeal that when the trial court accepted his waivers and plea of guilty he was deprived of effective assistance of counsel, and that he was then "acting under the influences of intimidation, duress, undue influence and fear." Since petitioner chose to plead guilty, pro se, within twenty-four hours after he had requested counsel, counsel had been appointed and had informed the court that the accused elected to stand on his right to grand jury indictment, careful scrutiny of the April 6 proceedings is of critical importance to a determination of the ultimate question: Did acceptance of petitioner's plea in the circumstances of this case deprive him of his right to the effective assistance of counsel and thus constitute a denial of due process? We therefore quote the pertinent portions of those proceedings at length in order to demonstrate the reasons for our conclusion that the trial court carefully and adequately advised petitioner of his rights and that they were freely, understandingly and intelligently waived:
"COURT: Mr. Bowman, we note that you are again present in person in open Court, sir. Is there some action that you wish to take in this matter, case number 66-CR-1 being a complaint for burglary, without the presence of your counsel, Mr. Pezman?
DEFENDANT: No, I want to go ahead with it, without an attorney.
COURT: Is that your wish to continue without your attorney?
COURT: And you are twenty-two years old, correct?
[Defendant is supplied with copy of complaint.]
COURT: We now have compared that copy that you hold in your hands now with the original complaint on file here to make sure they are identical on both the front and back to the original. You do understand and we have explained this to you, of course, and I think you have talked with Mr. Pezman whom we did appoint to represent you that you do have a right to be represented by counsel and that we did appoint counsel to represent you, and have no desire except on your own waiver and desire to proceed without counsel, we wouldn't be able to consider the matter any further. Now, is that your desire, sir, at this time?
COURT: You mean you want to proceed on your own without any attorney.
DEFENDANT: Yes, that's right.
COURT: Very well then, I do think you understand your rights in the matter, and you have have you not discussed this matter with Mr. Pezman, so that you have had counsel on this at some time, correct, sir?
COURT: And you do now wish to proceed without counsel and waive right to counsel?
DEFENDANT: Yes, that's right.
COURT: Let the record show that defendant now knowingly understandingly waives the right to be represented by counsel in this matter and elects to proceed to represent himself.
COURT: Is our understanding correct then, that you do wish to proceed presently on the ...