STATE
v.
Ralph A. JOHNSON.
No. 448-C.
Supreme Court of North Carolina.
January 15, 1965.*693 T. W. Bruton, Atty. Gen., and Theodore C. Brown, Jr., Raleigh, Member of Staff, for the State.
Thomas W. Steed, Jr., Raleigh, for defendant petitioner.
BOBBITT, Justice.
G.S. § 15-217 contains this sentence: "No proceeding under this article shall be commenced more than five years after rendition of final judgment resulting from said conviction, or more than three years after the effective date of this article, whichever is later, unless the petitioner alleges facts showing that the delay was not due to laches or negligence on his part."
It is not necessary or appropriate to review defendant's testimony to the effect he was not guilty of the criminal offense for which he was indicted in #6620 or his testimony relating to circumstances in explanation of his plea of guilty thereto. There are no findings of fact concerning these matters. The judgment below is based solely on the quoted provision of G.S. § 15-217.
Plaintiff's uncontradicted evidence is to the effect he was arrested on January 1, 1948, in Richmond, Virginia, and tried, sentenced and committed in Wake Superior Court on January 6, 1948; that he had no lawyer and neither time nor money to get one; and that his request for counsel was *694 denied with the explanation, in substance, that there was no provision for the appointment of counsel in such cases.
Expressly overruling Betts v. Brady, 316 U.S. 455, 62 S. Ct. 1252, 86 L. Ed. 1595 (1942), the Supreme Court of the United States, in Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, 93 A.L.R. 2d 733 (1963), held that one of the fundamental rights made obligatory on the states by the Fourteenth Amendment is the provision of the Sixth Amendment that "(i)n all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence," and that, when an indigent defendant is charged with a felony in a state court, the failure to appoint counsel for him constitutes a denial of his constitutional rights. Annotations: 93 A.L.R. 2d 747 et seq., 9 L. Ed. 2d 1260 et seq. "(W)here the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request." Carnley v. Cochran, 369 U.S. 506, 82 S. Ct. 884, 8 L. Ed. 2d 70 (1962). In this connection, see Doughty v. Maxwell, 376 U.S. 202, 84 S. Ct. 702, 11 L. Ed. 2d 650 (1963), reversing Doughty v. Sacks, 175 Ohio St. 46, 191 N.E.2d 727 (1963).
The said constitutional right to counsel is not limited to cases where defendant pleads not guilty. United States ex rel. Durocher v. LaVallee, 330 F.2d 303 (2d Cir. 1964); United States ex rel. Craig v. Myers, 329 F.2d 856 (3d Cir. 1964); Doughty v. Maxwell, supra.
Nothing in the record indicates petitioner voluntarily, intelligently and understandingly (or otherwise) waived his constitutional right to counsel. In this connection, see Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461, 146 A.L.R. 357 (1938); State v. Roux, N.C., 139 S.E.2d 189. "Presuming waiver from a silent record is impermissible." Carnley v. Cochran, supra.
At January Term, 1948, of Wake Superior Court, Betts v. Brady, supra, was authoritative. However, after Gideon v. Wainwright, supra, was decided, whether there has been a denial of constitutional rights is to be determined by application of the constitutional principles settled and declared in that decision. Pickelsimer et al. v. Wainwright, 375 U.S. 2, 84 S. Ct. 80, 11 L. Ed. 2d 41 (1963); Bottoms v. State, 262 N.C. 483, 137 S.E.2d 817; United States ex rel. Durcher v. LaVallee, supra; United States ex rel. Craig v. Myers, supra; Palumbo v. State of New Jersey, 334 F.2d 524 (3d Cir. 1964); Doughty v. Maxwell, supra.
Petitioner's uncontradicted testimony, which amplifies the court's findings, is to the effect that he was a federal prisoner in Atlanta, Georgia, under sentence(s) imposed by a federal court, presumably in Virginia, from 1951 until his return to North Carolina on July 3, 1962; and that he was advised the North Carolina courts would not act upon a petition filed under G.S. § 15-217 et seq. while he was in prison in Atlanta. Apart from the fact he was beyond the jurisdiction of our courts from 1951 until 1962, the constitutional ground on which he attacks the proceedings at January Term, 1948, in #6620, was undeclared and unavailable to him until March 18, 1963, when Gideon v. Wainwright, supra, was decided. In June, 1963, the petition under G.S. § 15-217 et seq. was filed. Under these circumstances, we are of opinion that the court's conclusion of law to the effect that petitioner failed to show that the delay in filing his petition under G.S. § 15-217 et seq. "was not due to laches or negligence on his part" is erroneous. Since the answer of the Attorney General indicates his views and those expressed herein are in substantial accord, the petition for certiorari is allowed; and decision is entered as stated below.
The judgment entered October 3, 1964, in post-conviction proceedings, is reversed; and the cause is remanded to the Superior Court of Wake County with directions that an order be entered vacating the plea, judgment *695 and commitment entered at January Term, 1948, in #6620; and, unless petitioner is lawfully imprisoned in another case or cases, that provision be made for the petitioner's release under an appearance bond in an amount to be fixed by the court pending further prosecution or other disposition of the indictment in #6620.
Reversed and remanded.