dissenting:
On April 4, 1966, at the defendant’s request, an attorney was appointed to represent him. On April 5, 1966, at the preliminary hearing, his attorney refused to waive indictment. On the following day, April 6, 1966, his attorney was out of town, and on that day the defendant was again-brought into court. There he waived indictment,' entered a plea of guilty, and was sentenced to the penitentiary. In my opinion this procedure violated the defendant’s constitutional right to counsel and his post-conviction petition should have been granted.
The majority of the court considers the issue to be whether a defendant can waive his right to counsel without the assistance of counsel. Statement of the issue in this form leads to a consideration of whether the constitution forces a lawyer upon a defendant when he does not want one. In this case, however, the defendant had requested the assistance of an attorney, and counsel had been appointed to represent him. As I see the issue, it is whether the defendant was denied the effective assistance of counsel when the sheriff, in the absence of the deféndant’s attorney and without notice to him, engaged in plea negotiations with the defendant, reached an agreement, and then brought the defendant before the court where he waived his constitutional rights and pleaded guilty.
In several cases the Supreme Court of the United States held that the constitutional right to counsel exists at every “critical” stage of a criminal proceeding, whether or not that stage occurs in the courtroom. It has enforced that right by excluding incriminating statements made by an accused to a Federal agent, while free on bond and in the absence of his attorney. (Massiah v. United States (1964), 377 U.S. 201, 12 L. Ed. 2d 246, 84 S. Ct. 1199.) In Escobedo v. Illinois (1964), 378 U.S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758, statements elicited from a suspect after the police had refused his request to consult with his attorney were held inadmissible on the ground that he had been denied his right to the assistance of counsel. And in Gilbert v. California (1967), 388 U.S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951, and in United States v. Wade (1967), 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926, convictions were vacated because an accused was exhibited to witnesses at a post-indictment identification lineup conducted without notice to and in the absence of the accused’s appointed counsel.
In my opinion the stage of the proceeding at which a representative of the prosecution induces a defendant to plead guilty is a critical stage at which a defendant requires the assistance of counsel. In support of its holding to the contrary, the majority relies upon In re Martinez (1959), 52 Cal. 2d 808, 345 P.2d 449. In that case, however, there were no promises or threats made by representatives of the State. Moreover, that case was decided well before Gilbert, 1967, Wade, 1967, Massiah, 1964, and Escobedo, 1964. It was even decided before the decisions of the Supreme Court of the United States in Hamilton v. Alabama (1961), 368 U.S. 52, 7 L. Ed. 2d 114, 82 S. Ct. 157; Gideon v. Wainwright (1963), 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792; and White v. Maryland (1963), 373 U.S. 59, 10 L. Ed. 2d 193, 83 S. Ct. 1050.
As I read Moore v. Gladden (D. Ore. 1967), 275 F. Supp. 703, the court there recognized that if any bargaining occurred in the absence of the defendant’s counsel, the plea of guilty would be set aside. Anderson v. North Carolina (W.D. N.C. 1963), 221 F. Supp. 930, is to the same effect. See also A.B.A. Minimum Standards for Criminal Justice, Pleas of Guilty, No. 3.1(a), p. 65 (1967).
It may be, as the majority opinion implies, that the defendant drove a very good bargain without the assistance of his attorney. Indeed, it may be that the only factor militating in his favor was the expense of convening a grand jury to return an indictment against him, an expense that might be considered burdensome to the officials of a county containing 6,200 inhabitants. Even so, however, the defendant was entitled to the assistance of his attorney in appraising his situation.