Hahn v. Turner

HENRIOD, Justice: Appeal from an order releasing defendant on writ of habeas corpus. On July 14, 1969, Hahn pleaded guilty to armed robbery, with counsel present. On July 28, 1969, he was sentenced after requesting and being allowed to plead guilty. On August 22, 1969, within the time he could have appealed, he filed a petition for a writ of habeas corpus with this court (our No. 11802), and on August 26, 1969, it was referred to the Third Judicial District Court for hearing. Over a year later, on October 28, 1970, Hahn filed another petition for writ of habeas corpus, in which he apparently perjured himself by stating that “There has not been a previous application for a writ of habeas corpus.” For some unknown, unexplainable, reason, which seems to have been unwarranted, the petition was held in suspense for over three years, when on December 10, 1973, one of the judges of that district, on motion of counsel for Hahn, without any evidentiary hearing, summarily granted the petition and released Hahn, effective in ten 'days. It is true that the record, although showing delivery of the information to Hahn, and his knowledge of the offense charged and its penalty, together with presence of and representation by counsel, does not affirmatively reflect knowledgeable volun-tariness of entering the guilty plea. 'However, there are several good reasons why the trial court erred: 1. The second petition was perjurious; 2. It flies in the teeth of Rule 65B (f)(1), Utah Rules of Civil Procedure. 3. The first petition, filed within the time that an appeal could have been taken, would indicate that Hahn or his counsel, if he had counsel at that juncture, knew something about his rights, and could or should have asserted them here by a regular appeal, — which procedure he did not indulge, which precludes him from employing the habeas corpus process as a substitute [790] for what should be a timely appeal,1 and leads us to the conclusion that the judgment should be reversed, which it is. CALLISTER, C. J., and TUCKETT, J., concur. Footnotes [1] Brown v. Turner, 21 Utah 2d 96, 440 P.2d 968 (1968); Zumbrunnen v. Turner, 27 Utah 2d 428, 497 P.2d 34 (1972).