No. 14367
IN THE SUPREME COURT OF THE STATE OF MONTANA
1979
IN THE MATTER OF
CLOYCE GILBERT LITTLE LIGHT,
Petitioner.
ORIGINAL PROCEEDING:
Counsel of Record:
For Appellant:
Towe, Ball, Enright and Mackey, Billings, Nontana
For Respondent:
Hon. Mike Greely, Attorney General, Helena, Montana
James Seykora, County Attorney, Hardin, Montana
Submitted: April 25, 1979
Decided : JUL 1 6 1979
UuL_I; I.?'?
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Filed:
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the
Court.
This is an original petition for a writ of habeas corpus
by Cloyce Gilbert Little Light, an inmate of the State Prison
serving a 25-year sentence for rape.
On receipt of the petition we referred it to the senten-
cing court for determination in the first instance. The District
Court of Big Horn County held an evidentiary hearing thereon on
October 11, 1978. The District Court issued findings of fact,
conclusions of law and an order denying the petition on November
20, 1978. A week later we issued an order to show cause why the
petition should not be dismissed. Thereafter a transcript of the
District Court's evidentiary hearing was filed on March 15, 1979,
briefs were filed by counsel and the matter submitted to this
Court for decision on April 25, 1979.
The underlying crime for which petitioner was convicted
and sentenced was the forcible rape of an elderly woman in Hardin,
Montana, on March 31, 1964. Petitioner, 19 years old at the time,
was taken into custody on the Crow Reservation the following
day by sheriff's deputies of Big Horn County and jailed in Hardin.
He was arraigned before a justice of the peace, waived preliminary
hearing, and was bound over to the District Court.
On April 9, an Information was filed against petitioner
charging him with the crime of rape. The minutes of the court
disclose that petitioner was arraigned on that date; waived his
right to counsel and trial by jury; and entered a plea of guilty.
The minutes disclose that the court desired more time for evi-
dence to be secured, set the time for pronouncing judgment on
April 23, and fixed bail in the sum of $3,000.
On April 23 defendant again appeared before the District
Court, requested more time, and indicated he would be able to
secure counsel. Further proceedings were continued to May 7.
On that date petitioner again appeared without counsel, and the
court appointed an attorney to represent him. Petitioner was
rearraigned with counsel, and the matter continued to May 21.
On May 21 petitioner appeared with court appointed
counsel before the District Court. The minutes of the court
disclose that he "requested the court to grant him some addi-
tional time (an hour or so) and at this time the court set the
continuance of the hearing at 1230 o'clock p.m. this same date,
May 21, 1964."
At 1:30 p.m. on May 21, 1964, witnesses were sworn and
testified. Petitioner again entered a plea of guilty. Petitioner
was sentenced to 25 years in the State Prison and is presently
serving that sentence.
T'he gist of the present petition is twofold; (1) The
state District Court lacked jurisdiction, and (2) petitioner was
&nierdsubstantive and procedural due process in the state court
proceedings.
Petitioner contends that the crime with which he was
charged, convicted and sentenced occurred on the Crow Reservation
in "Indian Country" and was therefore under the exclusive criminal
jurisdiction of the United States. He cites the Fort Laramie
Treaty of 1868 with the Crow Tribe, 15 Stat. 649, and argues that
the subsequent removal of the City of Hardin from the Reservation
by Act of Congress is "null and void for lack of constitutionality."
This contention cannot be sustained. It is directly con-
trary to the decision of the United States District Court in Hawkins
v. Crist, (January 27, 1978), CV-76-99-BLG. That decision held
that the agreement between the Crow Tribe and the United States
ratified by Act of Congress of April 27, 1904, 33 Stat. 352,
wherein the Tribe agreed to "cede, grant and relinquish" the tract
of land in question, disestablished this tract as "Indian Country"
thereby rendering it subject to state criminal jurisdiction. The
City of Hardin, where the crime occurred, simply is not within
the exterior boundaries of the Crow Reservation.
Additionally, petitioner contends that the District
Court lacked jurisdiction because he was arrested illegally on
the Crow Reservation. Petitioner argues that the Organic Act
of the Territory of Montana and the Enabling Act of the State
of Montana recognize the provisions of the Fort Laramie Treaty
of 1868 which prohibits the intrusion of state law enforcement
authorities onto the Crow Reservation and provides a mandatory
form of extradition procedure which was not followed in arrest-
ing petitioner.
Petitioner's contention lacks merit. The Crow Tribe
had no extradition procedures. State ex rel. Old Elk v. District
Court (1976), 170 Mont. 208, 552 P.2d 1394. -- further
Old Elk
held that the arrest of an Indian on a reservation for crime
committed off the reservation was a valid arrest.
Petitioner's contention that he was denied substantive
and procedural due process in the District Court proceedings is
bottomed on two propositions: (1) That petitioner's plea of
guilty was not voluntary, and (2) that the absence of a court
reporter and a verbatim transcript of his arraignment, entry of
plea and sentencing precludes meaningful review.
The requirements of verbatim records of arraignment,
plea and sentencing in criminal proceedings are of recent origin,
State ex rel. Biebinger v. Ellsworth (1966), 147 Mont. 512, 415
P.2d 728. Any attempt to make them retroactive to cover this
1964 proceeding violates the principles set forth in Highpine v.
Estelle (9th Cir. 1972), 470 F.2d 721.
Although this proceeding is labeled a petition for a
writ of habeas corpus, the focus of petitioner's complaint is
that his plea was not voluntary. The record discloses no evidence
to support this other than the testimony of petitioner himself,
while the record is replete with evidence that his plea of guilty
was voluntary. At the evidentiary hearing, the presiding district
judge found petitioner's testimony "incredulous." The credibility
of witnesses is a matter to be determined by the trial court.
State v. Kirkaldie (1978), - , .
Mont - 587 P.2d 1298, 35 St.Rep.
1532.
Petitioner argues that our decision in State v. Azure
(1977)I - ,
Mont. - 573 P.2d 179, 34 St.Rep. 1569,requires the
trial judge to inquire into specific matters in regard to a
guilty plea to insure the voluntariness of that plea. Such re-
quirements are not to be applied retroactively. Boykin v.
Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d. 274;
Highpine v. Estelle, supra.
The District Court's denial of leave to withdraw a
plea of guilty can be overturned only if it abused its dis-
cretion. State v. Lewis (1978), -Mont .- 582 P.2d 346,
,
35 St.Rep. 1089. Here the District Court held an evidentiary
hearing and concluded that the plea of guilty was voluntary.
There is substantial evidence in the record to support this
finding.
Petitioner was sentenced over fifteen years ago. Most
of the principal witnesses are dead. Some cannot be located.
Petitioner's claim must stand or fall on the record before us.
In this case a meaningful review can be accomplished on the
record, and the claims now raised by petitioner are demonstra-
bly without merit.
We have examined the other contentions of petitioner
and find them to be without merit and unnecessary to discuss in
detail in this opinion.
For the foregoing reasons, the petition for writ of
habeas corpus by Cloyce Gilbert Little Light is denied and
dismissed.
Chief Justice
Justices