Fred J. FORD, Appellant, v. UNITED STATES of America, Appellee.
No. 20299.
United States Court of Appeals District of Columbia Circuit.
Argued March 29, 1967. Decided May 9, 1967.
379 F.2d 123
My colleagues agree that counsel‘s advice was “clearly erroneous,” and that “a claim of ineffective assistance of counsel might be made out if the wishes of the appellant were in fact diverted by clearly erroneous legal advice and he was substantially prejudicеd thereby.” They deny relief, however, because the issue presented to the trial judge at the hearing below was not based upon counsel‘s erroneous adviсe on this point, but rather upon appellant‘s claim that counsel failed to move to withdraw his guilty plea prior to sentencing, even though he requested him to dо so. Consequently, they conclude, there is absent the additional evidence in the record that might indicate “more precisely exactly what defense cоunsel said and what he took into account, and not least important what the impact was on appellant and what prejudice if any resulted therefrom.”
I find the present record sufficiently clear. The trial judge had no opportunity to consider whether, under the more lenient standard for withdrawing guilty pleas prior to sentеnce, Bruce should have been given a trial on the merits.
By denying relief altogether, my colleagues send this indigent prisoner down the hill only to start up all over again on a new pro se petition, even though he only seeks a trial, not a retrial.
It appears that appellant may soon be paroled, and thus that he may no longer desire further proceedings. But that should be his choice.
* * * cally anything now, but that was as far as we discussed appeal * * *. How could I say that he could not appeal? Of course, he can appeal. His remedies are available as you can see now.
Mr. Elihu Leifer, Atty., Dept. of Justice, with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Nicholas S. Nunzio, Asst. U. S. Attys., and Franklin E. White, Atty., Dept. of Justice, were on the brief, for apрellee.
Before BAZELON, Chief Judge, EDGERTON, Senior Circuit Judge, and WRIGHT, Circuit Judge.
J. SKELLY WRIGHT, Circuit Judge.
This appeal presents again1 the vexing problem of counsel for co-defendants in a criminal case. Specifically we are presented with the question of the responsibility of the trial judge with respect to the retention or assignment of single counsel to represent co-defendants on trial. In Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 465, 86 L.Ed. 680 (1942), in which Glasser‘s conviction was reversed because his lawyer was assigned to represent his co-defendant as well, the Court stated: “[T]he ‘Assistance of Counsel’ guaranteed by the Sixth Amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously reрresent conflicting interests.”
Following the teaching of Glasser, in Campbell v. United States, 122 U.S.App.D.C. 143, 352 F.2d 359 (1965), in which retained counsel represented co-defendants, we reversed Campbell‘s conviction and placed upon the trial court the “responsibility to assure that co-defendants’ decision to proceed with one attorney is an informed decision.” 122 U.S.App.D.C. at 145, 352 F.2d at 361. We pointed out in Campbell that “* * * [a]n individual defendant is rarely sophisticated enough to evaluate the potential conflicts [that can arise from joint representation], and when two defendants appear with a single attorney it cannot be determined, absent inquiry by the trial judge, whether the attorney has made such an appraisal or has advised his clients of the risks. Consideratiоns of efficient ju
In Lollar v. United States, 126 U.S.App.D.C. 200, 376 F.2d 243 (1967), in which, because the defendants were indigent, counsel was appointed by the court to represent Lollar and his co-defendant, the appellant here, we applied the teaching of Glasser and Campbell. We further indicated, following the suggestion of Glasser, 315 U.S. at 70, 62 S.Ct. 457, that the court‘s advice to co-defendants with respеct to proceeding with single counsel, together with their waiver of any rights they may have with respect to separate counsel, should appear on thе record. We stated further in Lollar that, where the record does not show that co-defendants’ decision to proceed with one attorney was an informed one, the burden is on the Government to show beyond a reasonable doubt that the denial of the defendants’ rights is harmless error, citing Chapman v. State of California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed. 705 (1967).
Since there is no record indication hеre that Ford made an informed decision, after appropriate advice, to proceed with joint counsel, we must determine whether the Government has sustained its burden of establishing beyond a reasonable doubt that the error is harmless. Since we have no way of distinguishing Ford‘s case, with assurance, from the case2 of his сo-defendant Lollar as to the charges of robbery and assault with a dangerous weapon, we reverse for a new trial as to those counts. As to the charge of carrying a concealed weapon, we affirm the conviction. The record shows that Ford was found in possession of such a weapon, and Fоrd‘s own testimony on trial confirms this fact. Since the general sentence3 imposed in this case is in excess of the statutory maximum4 for carrying a concealed weapon, we remand for resentencing on this cоunt.
Counsel for Ford, while relying on the principles announced in Glasser, Campbell and Lollar, raises another point which requires our attention. Counsel argues that, where the right to separatе counsel has not been intelligently waived, reversal should follow without any consideration of prejudice. In support of this argument he points to that part of thе Criminal Justice Act,
While, as shown by our disposition of this case, we are not persuaded that all consideration of prejudice is irrelevant where co-defendants are represented by the same counsel, Ford‘s economic conflict argument is not withоut force. Moreover, the burden placed on the trial judge by the Act, to decide before trial whether separate counsel for co-defendants аre required, is an exceed
So ordered.
BAZELON, Chief Judge (dissenting):
Since the cоurt requires a showing of prejudice, and since I do not find prejudice in this record, I would not reverse these convictions. See my dissent in Lollar v. United States, 126 U.S.App.D.C. 200, 376 F.2d 243 (1967). I have serious doubts about the legality of the general sentence imposed in this case. The majority‘s disposition, though, makes it unnecessary for me to reach this issue.