Petitioner, being under a state court sentence of imprisonment
for 15 to 30 years on a plea of guilty to a charge of robbery and
having served almost 14 years, instituted proceedings in a county
court by a motion coram nobis
praying that the sentence be
vacated and set aside. He alleged under oath that, at the time of
his arraignment, guilty plea, and sentence, he was 19 years old,
and unfamiliar with legal proceedings, that he was not represented
by counsel, that the court neither asked him if he desired counsel
nor advised him of his right to counsel, and that the acceptance of
his guilty plea and the sentencing under these circumstances
deprived him of liberty without due process of law in violation of
the Fourteenth Amendment. In opposition to the motion, the district
attorney filed an affidavit admitting that the court records failed
to show that petitioner had been represented by counsel when he was
arraigned and when he pleaded guilty, but denying that he was not
represented by counsel when sentenced, and alleging that notice of
appearance of counsel on behalf of petitioner was filed two days
before sentence was imposed. Petitioner filed no denial. The record
of the original proceedings in which petitioner was sentenced
showed that he was actively represented by counsel in long hearings
during the day of sentence. The court denied petitioner's motion on
the basis of the aforementioned papers, including the record of the
original proceedings, without permitting petitioner to introduce
1. The motion coram nobis
being a proper procedure to
raise the federal question under the state practice, and the county
court's denial of the motion not being appealable to any higher
state court, this Court has jurisdiction to consider the case. P.
327 U. S.
2. Had there been nothing to contradict petitioner's allegation
that he was not represented by counsel in the interim between his
plea of guilty and the time he was sentenced, his charges would
have been such as to have required the court to hold a hearing on
his motion. P. 327 U. S.
3. The new facts disclosed by the district attorney's affidavit
being undenied, and the record of the original proceedings
Page 327 U. S. 83
that petitioner was actively represented by counsel in long
hearings during the day of sentence, so far refuted petitioner's
entire constitutional claim as to justify the county court's
holding that a hearing on his motion was unnecessary. P.
327 U. S.
4. Since counsel who represented petitioner on the day of
sentence could have moved to withdraw the plea of guilty and let
him stand trial, and petitioner had counsel in ample time to take
advantage of every defense which would have been available to him
originally, it cannot be said that the court denied petitioner the
right to have a trial with the benefit of counsel. P. 327 U. S.
Petitioner instituted a coram nobis
proceeding in the
County Court of Kings County, New York, praying that a sentence
which had been imposed on him on a plea of guilty be vacated on the
ground, inter alia,
that he had been deprived of his
liberty without due process of law in violation of the Fourteenth
Amendment. The motion having been denied, and there being no appeal
to a higher state court, this Court granted certiorari. 326 U.S.
327 U. S. 87
MR. JUSTICE BLACK delivered the opinion of the Court.
On June 1, 1931 in the County Court of Kings County, New York,
the petitioner pleaded guilty to the crime of robbery in the first
degree. On June 19, 1931 that court sentenced him to serve a term
of from 15 to 30 years in State prison. After the petitioner had
served almost 14 years of this sentence, he instituted this
proceeding by a motion coram nobis
in the King's County
Court, praying that the June 19, 1931 sentence be vacated and set
aside. His motion, verified by oath, alleged that, at the time of
his arraignment, guilty plea, and sentence, petitioner was
Page 327 U. S. 84
19 years old and unfamiliar with legal proceedings; that he was
not represented by counsel, and that the court neither asked him
whether he desired counsel to be assigned nor advised him of his
right to counsel. Petitioner's motion charged that the acceptance
of his guilty plea and the sentencing under these circumstances
violated Article 1, Section 6 of the New York State Constitution
and Section 308 of the New York Code of Criminal Procedure, and
deprived him of his liberty without due process of law in violation
of the Fourteenth Amendment to the United States Constitution.
The District Attorney filed an affidavit opposing the motion.
This affidavit, based on information obtained from Court records,
admitted that these failed to show that petitioner had been
represented by counsel when he was arraigned and when he pleaded
guilty on June 1, 1931. To overcome this apparent defect of the
record, the affidavit urged the presumption of regularity of
judicial proceedings to support the conclusion, in the absence of a
clear showing to the contrary, that the judge must have performed
his duty under New York's laws to advise petitioner of his right to
counsel. The District Attorney contended that petitioner's motion,
though verified, was not sufficient to overcome this presumption,
especially since petitioner's conviction occurred 14 years ago.
Moreover, the affidavit denied that petitioner was not represented
by counsel at the time of sentencing, and alleged that, on June 17,
1931, two days before the sentence was imposed, there was filed a
notice of appearance of counsel on behalf of the petitioner. Thus,
according to the affidavit, petitioner was represented by counsel
from June 17th to June 19th, 1931. Petitioner filed no denial to
The Court denied petitioner's motion on the basis of the
aforementioned papers, including the record of the original
proceeding, and without permitting petitioner to introduce any
evidence. Under New York practice, petitioner's motion
Page 327 U. S. 85
was the proper procedure to raise the Federal question.
Lyons v. Goldstein,
290 N.Y. 19, 47 N.E.2d 425, 146 N.L.R.
1422. Since the Court's denial of the motion cannot be appealed to
any higher New York Court, People v. Gersewitz,
163, 61 N.E.2d 427, we have jurisdiction to consider the case.
Betts v. Brady, 316 U. S. 455
316 U. S. 461
We granted certiorari because the case presents an important
question involving the right to counsel under the Constitution of
the United States.
Before we consider this question, we shall assume that
petitioner was without counsel when arraigned and when he pleaded
guilty, and that, although he was unfamiliar with his legal rights,
the court failed to inform him of his right to counsel.
Consequently, had there been nothing to contradict petitioner's
general allegation that he was not represented by counsel in the
interim between his plea of guilty and the time he was sentenced,
his charges would have been such as to have required the Court to
hold a hearing on his motion. Rice v. Olson, 324 U.
. But the District Attorney's affidavit and the
record and stenographic transcripts of the original proceedings in
which petitioner was sentenced show that petitioner was actively
represented by counsel in long hearings during the day of sentence.
In our opinion, these new facts, undenied, so far refuted
petitioner's entire Constitutional claim as to justify the court's
holding that a hearing on petitioner's motion was unnecessary.
These papers before the trial court showed that petitioner along
with two others, were originally charged under three counts.
Petitioner pleaded guilty on one charge on condition that he would
not be prosecuted on the other two. Thereafter, as we have
indicated, an attorney appeared on his behalf in an effort to
secure a low sentence. The attorney could have moved to withdraw
the plea of guilty, and the County Court of Kings County would have
had the power to set aside the plea and let the petitioner
Page 327 U. S. 86
stand trial. New York Code of Criminal Procedure, § 337;
People v. Gowasky,
244 N.Y. 451, 155 N.E. 737.
Petitioner's counsel probably thought it undesirable to do so,
because this move might have jeopardized his chances for securing a
low sentence. The plea was to robbery in the first degree, unarmed.
The record clearly shows that petitioner was heavily armed. Had he
been convicted of first degree robbery while armed, he would in all
likelihood have gotten a higher sentence. Cf. People ex rel.
O'Berst v. Murphy,
256 App.Div. 58, 8 N.Y.S.2d 965; People
ex rel. Pilo v. Martin,
262 App.Div. 1056, 30 N.Y.S.2d 290. At
any rate, whatever the reason, petitioner's counsel did not move to
withdraw the guilty plea. [Footnote
] All of this demonstrated to the satisfaction of the court
below that, even though petitioner may not have had counsel at the
beginning, he had counsel in ample time to take advantage of every
defense which would have been available to him originally. We think
the record shows that petitioner actually had the benefit of
counsel. When that counsel took over petitioner's defense, he could
have raised the question of a defect in the earlier part of the
proceedings. [Footnote 2
Page 327 U. S. 87
Failing to do so when the statute afforded him the opportunity,
we cannot say that the court denied petitioner the right to have a
trial with the benefit of counsel.
Petitioner's motion was therefore properly denied.
MR. JUSTICE JACKSON took no part in the consideration or
decision of this case.
The assumption cannot be made that had petitioner's counsel done
so it would not have been granted. If the motion had in fact been
denied, petitioner's counsel could have appealed, and thus have
brought up the denial of the motion. Code of Crim.Proc. Sec. 517;
People v. Joyce,
41 Hun. 641. If the case had then
eventually reached us, our previous decisions would have compelled
us to hold the denial of the motion improper. See e.g., Rice v.
B ut the question is not before us in this
It is suggested that the New York case of People v.
240 N.Y. 411, 148 N.E. 597, which allows a
withdrawn guilty plea under some circumstances to be admitted at
trial as evidence in the nature of a confession, might have
compelled counsel to refrain from making a motion to withdraw the
plea because, in view of the Steinmetz
rule, little would
thereby be accomplished in a practical way. In the
case, defendant had been represented by counsel
at the time of the guilty plea. The opinion, read as a whole, seems
to indicate that a guilty plea would be inadmissible as evidence at
a trial, where it was later withdrawn because defendant, ignorant
of his right to counsel, had at the time of pleading guilty not
been informed of his right. We have held that, in a federal court,
a withdrawn guilty plea is not admissible in evidence.
Kercheval v. United States, 274 U.
, 274 U. S. 223
274 U. S. 225
See also People v. Ariano,
264 App.Div. 426, 35 N.Y.S.2d
818. If a guilty plea without counsel should be held admissible in
New York, the proper case in which to raise the issue of the
propriety of its admission is on appeal to this Court on conviction
after trial. Otherwise, if such an admission is proper at all, it
would also be proper if a trial is had after we reversed this case.
Consequently nothing would be gained by a reversal on that
MR. JUSTICE MURPHY, dissenting.
The complete travesty of justice revealed by the record in this
case forces me to dissent.
The constitutional right to assistance of counsel is a very
necessary and practical one. The ordinary person accused of crime
has little if any knowledge of law or experience in its
application. He is ill prepared to combat the arsenal of statutes,
decisions, rules of procedure, technicalities of pleading, and
other legal weapons at the ready disposal of the prosecutor.
Without counsel, many of his elementary procedural and substantive
rights may be lost irretrievably in the intricate legal maze of a
criminal proceeding. Especially is this true of the ignorant, the
indigent, the illiterate and the immature defendant. Powell v.
Alabama, 287 U. S. 45
287 U. S. 69
Williams v. Kaiser, 323 U. S. 471
323 U. S.
-476. Courts must therefore be unyielding in their
insistence that this basic canon of justice, this right to counsel,
be respected at all times.
Page 327 U. S. 88
Today, however, a serious qualification is added to this
constitutional right to which I am unable to assent. Petitioner and
two others were indicted on May 25, 1931, for three offenses: (1)
Robbery in the first degree; (2) grand larceny in the second
degree, and (3) assault in the second degree. They were arraigned
on the same day, and pleaded not guilty. Petitioner at this time
was but 19 years old, indigent, poorly educated, orphaned, and
ignorant of his right to counsel. The court did not inform him of
his right to counsel at this time, and it does not appear that he
competently and intelligently waived his constitutional right.
Several days later, on June 1, petitioner again appeared without
counsel and without being informed of his right in that respect.
This time, he withdrew his plea of not guilty and entered a plea of
guilty to the crime of first degree robbery. The prosecutor agreed
to withdraw the other charges. On June 17, a notice of appearance
of counsel on behalf of petitioner was filed. And on June 19, in
the presence of this counsel, petitioner was sentenced to serve
from 15 to 30 years in prison. On the basis of these facts, the
Court now holds that petitioner was adequately represented by
counsel. The error manifest in the denial of the right of counsel
during the arraignment and the plea of guilty is held cured by the
mere presence of counsel on the day of the imposition of the
It is said that, at least under New York practice, the attorney
on the day of the sentencing could have moved to withdraw
petitioner's plea of guilty; the judge would then have had power to
set aside the plea and let the petitioner stand trial. On the
assumption that the judge would have granted such a motion had it
been made, the argument is advanced that petitioner had counsel in
ample time to take advantage of every defense originally
Page 327 U. S. 89
Thus, the conclusion is reached that this denial of the right to
counsel prior to the imposition of sentence is in compliance with
In my opinion, however, the right to counsel means nothing
unless it means the right to counsel at each and every step in a
criminal proceeding. The failure at any particular point to have
representation or to be aware of one's right to counsel may have an
indelible and imponderable effect upon the entire proceeding, an
effect which may not be erasable on the day of imposing the
sentence. As was said in Glasser v. United States,
315 U. S. 60
315 U. S.
"The right to have the assistance of counsel is too fundamental
and absolute to allow courts to indulge in nice calculations as to
the amount of prejudice arising from its denial."
So, here, we cannot assume or determine that the denial of
counsel at the time of the arraignment and plea was harmless. Nor
can we say with certainty that the presence of counsel at the final
stage of the proceeding was sufficient to counteract the prejudice
inherent in the prior denial of counsel. Unless all the effects of
such a constitutional infirmity are completely and unquestionably
eliminated, a conviction cannot stand. An elimination of that
nature ordinarily, and particularly in this case, means a new
proceeding in which the right to counsel is fully protected at all
It is further significant that the failure of the trial court to
inform the petitioner of his right to counsel was in violation not
only of the due process clause of the Fourteenth Amendment, but
also of Article I, § 6, of the New York Constitution and of §§ 8,
188, 308, and 309 of the New York Code of Criminal Procedure. The
arraignment and the plea of guilty were thereby vitiated, from
which it follows that the conviction was inconsistent with due
process of law. See Johnson v. Zerbst, 304 U.
, 304 U. S. 468
Waley v. Johnston, 316 U. S. 101
316 U. S.
Page 327 U. S. 90
The lack of due process in the conviction was unaffected by the
possibility that the counsel which petitioner eventually obtained
might have successfully moved to vacate the void plea of guilty.
Constitutional rights as well as due process requirements rest upon
something more substantial than what might have been but was not
done. The inescapable facts confronting us are that petitioner was
denied the right to counsel, and that the court's judgment was
based upon an illegal arraignment and plea. Counsel's negligence in
failing to move to set aside that plea should not blind us to those
facts, nor can it invest the proceeding with the due process which
it otherwise lacked.
Moreover, even had petitioner's counsel been successful in
making such a motion, the effect of the illegal plea might not have
been dissipated. Under New York law, a plea of guilty which is
withdrawn may subsequently be admitted in evidence at the trial.
People v. Steinmetz,
240 N.Y. 411, 148 N.E. 597. And, even
though such a practice might be of doubtful constitutionality under
these circumstances, the possibility of its occurrence may have
effectively and understandably deterred counsel from seeking to set
aside the plea and subjecting petitioner to the risk of a greater
The denial of the petitioner's constitutional rights was a
serious matter. Unaided by counsel, he was faced with charges of
three crimes. Each of these crimes involved different degrees.
Petitioner was not competent to decide whether he was properly
charged with the correct degree of each crime. Nor was he competent
to determine whether to plead guilty to any or all of the offenses.
Those were complex legal problems as to which petitioner deserved
legal aid. Yet that necessary aid was denied him. Nothing happened
on the day of sentencing, moreover, to negative that fact. To
sustain his conviction therefore
Page 327 U. S. 91
fails to give petitioner the high degree of protection which his
constitutional right to counsel deserves.
MR. JUSTICE RUTLEDGE, dissenting.
I agree with my brother MURPHY that the judgment should be
reversed, and join substantially in his opinion.
My conclusion rests squarely upon the fact, as I understand the
record and the law of New York, that, under that law, a withdrawn
plea of guilty is admissible in evidence against the accused at his
later trial. People v. Steinmetz,
240 N.Y. 411, 148 N.E.
597. I have heretofore expressed my reasons for thinking that such
a procedure involves a species of self-incrimination. Wood v.
75 U.S.App.D.C. 274, 128 F.2d 265. That
question, however, has not been determined here, although it has
been held on nonconstitutional grounds that, in a federal court, a
withdrawn plea of guilty is not admissible. Kercheval v. United
States, 274 U. S. 220
has this Court decided whether such a procedure followed in a state
court would be in violation of any constitutional provision.
In the setting of the facts in this case, the significance of
the New York rule is that the rule itself made it impossible for
the full effects of petitioner's invalid plea of guilty to be wiped
out even through a successful motion for withdrawal, had one been
made by petitioner's attorney after his appearance in the cause
following the plea and shortly before sentence.
It is not at all certain that the motion would have been
successful. Had it been made and granted, petitioner, by the
state's law, would have been confronted with the necessity of
overcoming by proof the incriminating effect of his prior plea. His
burden of defense thus increased not only would have been greater
than if the invalid plea had not been made. It would have gone far
to destroy the presumption of innocence to which he was entitled
until otherwise and lawfully proved guilty. Finally, his lawyer
Page 327 U. S. 92
presumably would have been cognizant of these facts. Imagination
need not be stretched to believe that even the most competent
attorney, confronted with such a situation, might have chosen to
advise against moving to withdraw the plea rather than undertaking
the heavy burden of meeting it by proof at the trial.
In my opinion, the damage done by the original invalid plea was
not removed by the attorney's eleventh-hour entry, nor could it
have been at that time, fully and effectively, in view of the
existing state of the law and the facts. Accordingly, I think there
was no effective waiver through the late entrance of counsel and
his hampered advice, which, as I understand, is the only basis for
the Court's decision. There was no choice but Hobson's.