Hines v. United States
237 A.2d 827
D.C.
1968
Check Treatment

*1 827 1758, Illinois, 478, that 84 12 appellant stated he first saw and final- 378 U.S. S.Ct. ly premises (1964), arrest on the 1901 L.Ed.2d and Miranda v. State 977 Street, 436, 1602, Arizona, N. him- 86 Sixteenth W. 384 U.S. S.Ct. applicable self referred to his local residence and 16 L.Ed.2d places night he had been on the the case at bar. arrest, obviously all his Affirmed. cumulatively, Taken ref- Columbia. descriptive sufficiently

erences were

locality place the crime took in the trial court. appeal appellant

On contends for time that his arrest was unlawful the subsequent person his George A. HINES, Appellant, and seizure of the knife therefore violative v. The rights. constitutional challenged below, arrest was not nor UNITED STATES, Appellee. suppress made. On 4328, contrary, appellant stipulated that he was carrying knife and also testified District of Columbia Court of it possession. was in Supreme The Court 23, Oct. long the preservation held that con requires stitutional rights a sea 7, Decided Feb. objection. sonable Schmerber 757, 9, 384 U.S. 765-767 n. 86 S.Ct. 1826, 16 ; Gray L.Ed.2d 908 (1966) v. United 77, 126,

cert. 374 U.S. 83 S.Ct. error,

L.Ed.2d 1057 plain Absent any failure to objection voice

the introduction of the knife in evidence

prevents him from claiming

admission of the knife was error. At

least, the record police discloses

officer had sufficient ground legal for a

arrest because committing

the crime entry of unlawful police presence. arrest,

officer’s After valid to search naturally followed.

Preston 376 U.S. no

find error in the introduction of

the knife in evidence at trial. prosecution

The did seek to any

troduce into evidence statements made

by appellant. Appellant’s contention that

prosecution’s prove failure

advised his constitutional

time of arrest is thus without merit.

principles enunciated in Escobedo v. State

ernment’s motion to dismiss the be- the failure file notice cause de- prives over a Loughrin, direct Burke v. D.C. Mun.App., (1952); 91 A.2d 564 Beach v. Columbia, D.C.Mun.App., Appellant A.2d then filed (1945).4 a motion the with trial court “to vacate the in the sentence nature of and/or writ error coram nobis.” From the motion, present appeals denial of that are taken.

Appellant’s motion asked the trial power court to exercise inherent its sentence, Ingols vacate a v. District of Co lumbia, D.C.Mun.App., 103 A.2d 879 appellant, thereby and then resentence restoring upon him to the status of one passed and just whom sentence been has who, 27(b) under Rule of the rules of days note ten in which to allowed procedure correct is the upon for of a collateral attack initiation judgment therefore or and we the question reach as to has sufficient Niblack, Washington, for David D. C. upon judgments collateral attack case at bar. Kelley, Jr., E. and whom David U. S. G. primarily upon his claim counsel de- ineffective assistance of for hearing prived to a him of appeals. This claim based merits of his MYERS, Chief that he relied on his on a CAYTON, Associate attorney, and his notices of Judge, Retired. ten-day filing carelessly miscounting MYERS, Judge. day period, late. noted the given Appellee dispute the reasons does not convicted of threat filing, argues for late ening bodily to do harm1 and of assault.2 and that only neglect, shown his counsel’s judgments from the Notices to establish alone those convictions were not filed until after in a ineffective col- assistance of counsel ten-day period expired.3 judgment the Gov- sentence. lateral attack or (1967). limitation 4.This rule that time § D.C.Code 22-SOT court’s jurisdic- notation of the rule is identical with 22-504 tional § Robin- States v. Federal courts. United 27(b) son, of the Rules of this court. Rule U.S. A assistance of counsel. client rigid time limit on jurisdictional finality penalized attorney’s ought not to be for his direct lends notation of duty, trial reason certainty judgments dereliction of find no by rigidity distinguishing time limita dereliction caused But the court. inequities attorney’s by upon a convicted bad faith caused tion can work from that neglect.5 whose failure to defendant *3 prescribed not his fault. time is established that he was defendant, retained who has instructed his deprived right to Amendment Sixth reasonably attorney appeal, an to initiate representation, this since attorney file the neces to enough to a a collateral attack sary appeal Failure to notice. judgment or do not here con- we strategic move prescribed time cannot be appellant’s allegations sider these attorney. it be part can Nor refusing in The trial court erred attorney’s judg considered a matter for the appellant’s to vacate sentences. ment, the of must soundness which a client necessarily Filing appeal risk. notice of Remanded with instructions to vacate purely task, ministerial and the failure to sentences and resentence.6 to timely “impresses as such an us extraordinary to a client’s inattention (dissenting) : as terests to amount to ineffective assistance cognizable” of before, counsel a collateral attack was here appealing upon the judgment. Dillane v. convictions, from same and after his States, 354, 355, F.2d filed, brief on the merits had been Government moved to dismiss because timely had not been noted. This Appellee cites a of cases in other series court, judge dissenting, with one jurisdictions mere which hold that a show- the motion to dismiss. From the action of ing neglect of of to counsel not court, appellant this petitioned the United establish ineffective assistance of counsel States Appeals Court of for the District unless there is fraud or also of of Columbia Circuit the allowance part deceit counsel or appeal. judge That with one error at trial. Fennell v. United dissenting, the petition. Appellant’s denied States, (10th 339 F.2d See Cir.1965). able counsel then moved trial court to also Dodd v. United 321 F.2d 240 vacate the sentences. When motion (9th ; Cir.1963) Calland v. United were taken. The (7th Cir.1963). think majority opinion now holds that the sen- rejects Dillane supra, tences should be vacated and re- jurisdiction by rule in holding our that a sentenced, presumably may in order failure to inform a right client of his timely then file I appeal. notices of' cannot agree. unexplained” “if can amount to in- case, appellant late In the instant in- the notices of there requiring are no facts at issue an eviden- formed of to and in- tiary hearing proceed- determine structed his to institute allegations, ings although purpose, which we le- for that have held be he was gally sufficient not informed as to the time limitation for ineffective as- counsel, right. true. sistance of Where the the exercise of that In both Dil- contested, Dillane, present case, lane and the facts are as in defense attor- evi- dentiary hearing neys negligent should be held before the and their derelictions judge sentencing precisely to ascertain the truth of the same result —the loss appeal. allegations in a motion clients’ to vacate. their theAs Government does not contest given by defense reasons counsel ap- question

The whole

pellant’s counsel to file notices op- presented

position to dismiss the former fully If and was considered. correct, opinion

majority we should appeals,

have dismissed I we should

did dismiss them and believe indirectly permit

now that to be done directly. permit done

we refused to be today’s appeals are ruling three

Under accomplish

necessary to have what should

required only *4 Appellant, DURHAM,

Javan J. Appellee. STATES,

UNITED 4309. Columbia Court Brocard, Washington, D. S. Sept. 6, Feb.

Decided Rauh, Carl S. U.

whom David G. S. and MY- KELLY, Judges. ERS KELLY, : by jury of as- Appellant was convicted weapon.1 deadly carrying a and of sault sufficiency of appeal challenges the proof identification and without arrest a warrant. September testimony that on m., complaining p. about 8:30 22-504, 22-3204. §§