Strickland appeals the denial of coram nobis by the Circuit Court of Tuscaloosa County.
His principal complaint is that he was denied effective assistance of counsel while indigent.
In 1961, while in the Tuscaloosa County jail waiting to be transported to the penitentiary, Strickland escaped. He was indicted by the Tuscaloosa County grand jury for the offense denounced by Code 1940, T. 14, § 153, as amended, which reads:
"Any convict who escapes or attempts to escape from the penitentiary, or from any person or guard having him in charge under authority of law, either within or outside the walls of the penitentiary before the expiration of the term for which he was sentenced, shall, on conviction be imprisoned for an additional term of not less than one year.”
*313According to the record before us, based on the bench notes of the late Honorable Reuben Wright, then Presiding Judge of the Tuscaloosa Circuit, Strickland, on arraignment, was asked if he wanted counsel and the bench notes affirmatively show that he said, in effect, that he would arrange for his own lawyer by the time for trial.
However, when the trial did come up, Strickland appeared without a lawyer and changed his plea from not guilty to guilty and received a four-year sentence on conviction by the court without the intervention of a jury.
We consider that reversible error was committed in accepting this change of plea without first showing that there was again an intelligent waiver of counsel. The offense denounced is of very doubtful1 application to a prisoner who has not been taken into the penitentiary system within the meaning of our law which allows him no credit for obedience to the sentence until he is in the warden’s custody. Being merely in the jail waiting for the penitentiary transportation agent gives no such credit.
In Rice v. Olsen, 324 U.S. 786, at 788, 65 S.Ct. 989, at 991, 89 L.Ed. 1367, we find:
“A defendant who pleads guilty is entitled to the benefit of counsel, and a request for counsel is not necessary.”
Both this court and the Supreme Court of Alabama have had occasion to consider the retrospectivity of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. Barnes v. State, 42 Ala.App. 504, 169 So.2d 313; Brown v. State, 277 Ala. 353, 170 So.2d 504.
In Commonwealth ex rel. O’Lock v. Bundle, 415 Pa. 515, 204 A.2d 439, the Supreme Court of that state, we think correctly, applied the Gideon principle to a plea of guilty. In view of the necessity of an affirmative disclosure in the conviction record under the original indictment as exemplified in Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70, the burden of showing waiver in the absence of counsel for an indigent felony defendant is cast upon the State rather than the petitioner even in a post conviction proceeding.
Here, while it can be fairly said that Strickland waived the appointment of counsel on his original arraignment, nevertheless the next critical step leading to his conviction was when he changed his plea to guilty.
The record before us is completely blank as to whether or not Judge Warren, who was presiding at the time of Strickland’s second appearance, made further enquiry as to his indigency and non-accompaniment by counsel. See Palumbo v. State of New Jersey, 3 Cir. 334 F.2d 524, and the dissenting opinion of Bell, J., in Post v. Boles, 4 Cir., 332 F.2d 738.
Reversed and remanded.
JOHNSON, J., dissents.On Remandment
CATES, Judge:After the Supreme Court of Alabama remanded this cause (Sept. 30, 1965, 189 So. 2d 771), the United States Court of Appeals issued its opinion in Davis v. Holman, 5 Cir., 354 F.2d 773.
This latter case was a reversal of a judgment denying habeas corpus and remanding Davis to Holman’s custody. 237 F. Supp. 490.
The Attorney General filed a petition for certiorari with the Supreme Court of the United States seeking review of the Fifth *314Circuit. Among the purported questions posed to the United States Supreme Court was the conflict between the Supreme Court of Alabama in the instant case and the Fifth Circuit in Davis v. Holman, 354 F.2d 773. The petition was denied without opinion April 18, 1966, 86 S.Ct. 1343.
Davis, on its facts, we consider less clear cut in the prisoner’s favor than Strickland. Davis had waived counsel intelligently (so all courts have assumed) and had descended into the jaws of jeopardy when he changed his plea to guilty — as an alternative to verdict. We saw this merely as a trial tactic and affirmed without opinion. Davis v. State, 42 Ala.App. 693, 165 So.2d 917. See Adkins v. State, 40 Ala.App. 87, 109 So.2d 747.
Our Supreme Court has said, “But we are not bound by the decisions of any federal court * * * other than the Supreme Court of the United States, * * * ” Sanders v. State, 278 Ala. 453, 179 So.2d 35. See also Stock v. Plunkett, 181 Cal. 193, 183 P. 657; People v. Estrada, 234 Cal.App. 2d 136, 44 Cal.Rptr. 165.
“It should be emphasized that the above clause, ‘and the Judges in every State shall be bound thereby’ is the reason that every judge in every state is required to take the oath of office that is prescribed by the last paragraph of said Article. This clause contemplates that cases within the judicial cognizance of the United States, not only might, but would arise in the state courts, in the ordinary procedures. The obligation of the clause ‘is imperative upon the state judges in their official * * * capacities.’ They are not to decide merely according to state laws or Constitution, but according to the Constitution, laws and treaties of the United States — -‘the supreme law of the land.’ Compare Martin v. Hunter’s Lessee, 1 Wheat. 304, 340, 4 L.Ed. 97; 21 C.J.S., Courts, § 206, n. 49, pages 365, 372.” State ex rel. Irvine v. District Court, 125 Mont. 398, 239 P.2d 272.
We now have a decision (albeit not squarely on the merits) of the Supreme Court of the United States in the Davis case, 86 S.Ct. 1343. Bland v. Holman, 5 Cir., 356 F.2d 8 (cert. den. Alabama v. Bland, March 21, 1966, 86 S.Ct. 1203, is of like import. In Thomas v. State 277 Ala. 570, 173 So.2d 111, we find Lawson, J., saying:
“ * * * this court is not bound to follow federal courts on federal questions, except the Supreme Court of the United States, but to ignore the consistent holdings of those courts on this question,, which holdings'have not been disturbed by the Supreme Court of the United States; although efforts have been made to have it overturn those holdings, can only lead to further delay in bringing about the punishment of those guilty of violating the laws of this state.”
Accordingly, we consider the Supremacy Clause of the Federal Constitution, Art. 6, cl. 2, requires that our original judgment be reinstated. See separate opinion in Knox v. State, 42 Ala.App. 578, at 586, 172 So.2d 787, at 794.
Reversed and remanded.
. Contrast Bradford v. State, 146 Ala. 150, 41 So. 471 (Anderson, X, for a unanimous court), with Bradford v. State, 149 Ala. 1, 42 So. 990 (Tyson, C. J., for tlie court, Anderson and McClellan, XT., dissenting). These two cases have never been reconciled.