Richard Sympol Townes, Jr. v. United States
371 F.2d 930
4th Cir.
1966
Check Treatment

*2 BELL, Before WINTER and CRA- Judges. VEN, Circuit WINTER, Judge: Circuit appeal post In this from denial con- sought viction relief under 28 U.S.C.A. 2255, appellant who, § pleaded single-count two indict- robbing ments for two banks 2113(a)), U.S.C.A. claims that he § did effectively his to counsel competently and that he did not and in- telligently pleas enter his related, ty, fifteen-year arguments received a because sentence under (2). 4208(a) psychiatric his- 18 U.S.C.A. relies why plea was tory as a reason both began 26, 1964, appellant On June competently as a factor made and barrage pro se motions in the district bearing upon effectiveness seeking trial, new reduction *3 counsel. waiver^of sentence, of and correction withdrawal guilty. 24, pleas his On November Appellant, his were at the time married, summarily 36-year-old, 1964, entered, district de- awas motions, appellant completed appealed all nied and male, who white had IQ Court, joint eighth grade 114. to this Court. In this on an and had who appellant appellee, the motion of or- pleaded and an previously to He had robbery remanding was on der entered the case to the and he was in 1958 a bank grant- purpose court for the parole time of at the for that offense ing appellant provi- alleged under the rob- 1963 bank commission of the remand, sions of 28 plethora U.S.C.A. 2255. On of documents In the beries. appointed represent ap- counsel was to district court he has filed with the pellant. Appellant pri- robbing was afforded a bank, for a fourth he admits to psychiatric examination, plen- and prosecuted, vate and ad- which he has not been ary hearing robbery was held attempted an- of still mits to judge who, 9, 1965, on filed December other bank. deny- opinion second written order and pleas of to which indictments The ing all motions to vacate and set aside accepted, after were tendered and appellant’s sentences.1 charged, waived, counsel had been “by 116-63, appellant in Case No. by violence, force and and intimidation” Zerbst, 458, 464, Johnson v. 304 U.S. Bank and had robbed the First-Citizens 1019, 1023, 58 S.Ct. 82 L.Ed. Company, Raleigh, North Caro- Trust (1958), teaches waiver is “ordinar- 18, lina, September $11,334.00 on ily relinquishment or intentional ap- and, 117-63, 1963, No. in Case right priv- of a or abandonment known “by violence, and pellant had force and ilege.” Noia, Fay 372 U.S. See also by Main robbed the North intimidation” 391, 399, 822, 83 S.Ct. 9 L.Ed.2d 837 Fuquay Varina, Branch, Bank of Street Springs, Janis, (1963), and Brookhart v. 384 U.S. Carolina, $7,938.00on North 86 S.Ct. 16 L.Ed.2d arraign- August Appellant was (1966). being right counsel, The se- charges No- on on the two ed seriatim by and cured the Sixth Fourteenth purported to 1963. He waive vember right Amendments, is a constitutional counsel, pleas of and his the assistance guilty magnitude. requirement law The case accepted he had been were after implemented Rule waiver is interrogated, He discussed. as hereafter requires a Fed.R.Crim.P. That rule dis- two 1963 to was sentenced November of his trict court to advise a defendant years each. of fifteen consecutive terms right counsel, requires and dis- No. 117-63 was Case sentence assign trict court to counsel unless straight commitment, but sentence proceed elects coun- accused provi- under the No. 116-63 was Case sel or able obtain counsel. (2). 4208(a) sions 18 U.S.C.A. § who, In Aiken v. United 117-63 No. codefendant Case pointed guil- out pleaded F.2d 604 Cir. represented 10,866). appeals pending Because these appeal in this was While this present raise substantial issues Court, For a “Petition filed ap case, counsel has not been instant in each To Time Served” Cut Time separate pointed prepare a brief convicted which he was two eases argument. appeals present oral de These were on his disposed 10,866 petitioner will be 8, 1966, Nos. August nied 10,- (Nos. appeals herein. two additional filed prescribed by weighty responsibility Aiken were dis- tests determining ad- trict an met. In both cases courts in whether charges against him accused who seeks to to vised than not more counsel does fact $5,000.00 he could fined so know- ingly. imprisoned for not more We said the district must or each, explain charges ap- “(1) twenty possible years, or both. punishment, inquire any pellant (2) that he was entitled whether was told brought course, pressures Of he should have threats been have counsel. him, (3) bear told that in Case No. 116-63 determine been wheth- any promises indigent, er by him if desired counsel but been made to investigating ,or rep- appoint prosecuting counsel to of- would obligation ficials.” We stated him re- resent without cost little time is quired him; inquiry make needed but this omission in this ease de- termine so advised whether waiver was made harmless because he was *4 voluntarily 117-63, up proper im- and with No. taken understand- Case ing, mediately thereafter, and that best the time to and he still refused conduct the inquiry, appointment as Appellant’s the Federal Rules of the counsel. Crim- inal contemplate, Procedure of a is at and his tender waiver counsel right time being plea part when the to counsel occurred as added, however, cases, proceeding waived. We of the that fail- same each two perform ure duty to does not threats or auto- and pressures denied that matically brought invalid, render the to and waiver be- had been bear a cause any promises defendant who to him seeks relief under that had made been investigating 2255 prosecuting § must still bear the offi- burden of or proving ap- that Particularly he did not understand his is this true since cials. rights. constitutional up, pellant Aiken Case v. United taken States, supra, p. stated, 116-63, been Cf. “I have not Heiden v. No. (9 United 1965). nothing 353 promised F.2d no 53 Cir. threatened in or If appears, it therefore, way I from tran- at all. And have been treated script original purported say gentle- waiver, guess would like a what preponderance from a of the In it is.” evidence man under the situation like adduced hearing, at the 2255 plenary him after § a com- afforded the remand, both, bination of that to waiver met evidence offered test, the constitutional a 2255 movant § understand the that he did not show would not be entitled to relief. an In charges possible punishment, nor analogous situation where voluntari- threatened, pressured he had that been ness of a attacked, representation. or induced to waive recently have held that a 2255 § motion question a raised possible as upon, fact to cites, Appellant and relies prejudice resulting from an omission of Plattner, 330 F.2d v. United States judge interrogate to laying about addi down the Cir. coercion or inducements. v. Brokaw an ac requirements tional States, Cir., (de- F.2d effectively may he counsel cused 26, 1966). cided October to time 2255 mo- a reasonable must afforded be questioning tion must advised and he be his decision make effectiveness best interests that would be waiver of counsel ques- raises similar spe lawyer’s lawyer a a because of knowledge tions of fact toas and inten- training in the law. skill cial tion. however, hold case, does Plattner require transcript appellant’s to meet these the failure arraignment necessarily in an ineffec proceedings, set results forth in ments pertinent counsel, cf. Heiden appendix in an waiver of tive opinion, merely States, supra, sets demonstrates but minimum United judge satisfy compe- suggested colloquy himself be- should forth area of tency judge accepting presiding un- and an to waive before a waiver. tween the short, explored must conduct be- counseled defendant be necessary proceed inquiries permitted to so fore the accused is know, may dem- Indeed, it he and the record in Plattner without counsel. beyond onstrate, cavil, procedure said, that an accused “Our outline right employ merely he knows that has a be restatement followed and, indigent, attorney existing an if on the sub- guidance consult with decisional law appointed ject, one him without for for made the use and expense voluntarily judges, him, an absolute and that the trial rather than right. rigidly relinquishes to.” Unit- formula adhered Plattner, supra, pp. 276-277. ed States v. again, But our we reiterate holding suggest suggested approve in Aiken all We guide interrogation simply ed agree colloquy in the Plattner case. We establishing on the an intentional record unrepresented accused also that right relinquishment of the hasty pressured should not be into accused, known understood decision. Because it ill-advised rigid slavishly ritual fol to be duty an ac of a district to advise case, and we lowed. We determine this make counsel and to cused cases, on the shall future basis determine fully understands certain that accused *5 whether, when the record is examined of given him, ad add the advice we would whole, appears as a there was a that suggestions Platt ditional to those in the a waiver of constitutional cases, supra, ner and Aiken judges to the district Zerbst, meets the test of Johnson v. pra, Fay su The district Circuit. Noia, supra, and Brookhart v. judges develop the should on the record Janis, supra. In this case conclude background, age general educational and whole, record, that a the considered as capabilities accused, the so that an a establishes waiver. valid ability grasp, under accused to fully stand known and is decide II fully judge conducting inquiry and by support rea that disclosed In claim he the record. One his usually by guilty ac sons most did “volun advanced not tender his why understanding tarily cused he does not wish counsel the nature by appointed charge,” required to be that he is and of Rule argues event, appellant plead Fed.R.Crim.P., a intends In that he that against explain ac did should not understand the testify Appellant plea of at that, him. did so cused even if an accused’s not court; may be, hearing accepted, plenary his and in the district counsel argument alleged is, upon generally de intrica value based of substantial presenting effectively veloping 18 U. miti cies of 2113. While 18 U.S.C.A. § might entirety gating relevancy having in its circumstances S.C.A. 2113 read § many present problem what times the most difficult some fashioning law, part of the indict a criminal case—the to one schooled the only para appropriate Depending punishment. on ments were based respec graph 2113(a) charged, defendant to of § the answers robbery suggested interrogation, on tively, of two banks form of addi violence, “by questions put dates force and tional to be to him named suggest by The record ar If result of ob intimidation.” themselves. as a serving raignment appellant accused, read his that result of discloses as a entering prior response any question,- question indictments competency plea, the Assistant United of an and that accused’s to waive Attorney suggests It itself, summarized them. counsel States ap- perieneed episodes in disassociative was shown at the 2255 past fugue report pellant psychiatrist who con- states. The told the hospital study competent Bu- concludedthat he was a classification for the ducted toy to had stand trial. reau of Prisons that he used robberies, pistol in he knew but that As a result of conviction his first for who were robbed cashiers robbery, appellant bank committed being thought they threatened were Penitentiary at to the United States At- government pistol. real could Since psychiatric report May lanta. dated prevail proof of on the indictments psychiatric special progress and a intimidation, proof actual report January dated were violence, Price v. force among In records. there was 150 F.2d 283 Cir. and cases cit- no evidence of nervous or mental disor- nothing therein, ed in this rec- there is der, except history infrequent appellant’s ord at ar- to belie statements seizures. While the examiner was of the raignment charg- he understood opinion from a suffered against es him. psychoneurosis by a characterized feel- provide record likewise fails ing uneasy anxiety, feelings in his evidentiary appellant’s basis conten- gastrointestinal tract, infrequent pe- lacking tion that he was so in intelli- accompanied riods of unconsciousness gence understanding, or much the so typical seizures which did not seem emotions, victim of his own fears and epilepsy, the examiner’s conclusion was effectively that he could not waive coun- there was no evidence to consider competently plead guilty. sel or In his responsible other brief, appellant specific he does competent at the time of the offense legally not contend that he was at insane at the time of trial. the exam- “ * * * the time of his trials or at time stated, iner there is still evi- relies, rather, upon thereafter. He psychosis.” dence of Transfer ato med- history claims, which, medical ical center recommended because *6 sufficient to demonstrate mental incom- the examiner could find no evidence of petency. paranoid psychosis. or other Appellant points blackouts, Following appeal the remand of this spells experienced or convulsions in he motion, ap- the district caused II, naval service in World War pellant by Dr. be examined M. M. Vi- fact experienced a child as he had tols, Superintendent Cherry Hos- episode spinal meningitis. He en- pital, Carolina, Goldsboro, North who hospital tered Veterans Administration private practice conducted Durham, in North Carolina and remain- Psychia- was an Assistant Professor July 29, 1957, during ed there from 17 to try Carolina, University at of North diagnosed having which was he mixed psychiatry by and certified Amer- grand suspected epilep- neuroses and mal Neurology Psychiatry. ican Board of sy. Appellant hospital against left appellant Dr. did Vitols found there, medical advice. While hos- gross psychotic show neurotic pital appellant director has certified was manifestations, testing careful incompetent. not found very appellant was evident that 1957, appellant patient Later in legal competent. awas sense Dr. Vitols’ was Baleigh, at Hospital, “very carefully the Dorothea opinion” Dix was considered Carolina, North where he examination, was referred that at the October time competency emotionally determine to stand was an “ * * * forgery, trial on a personality, and found e., unstable i. intellectually functioning personality at an reacts where the individual average excitability with no level indications of an with and ineffectiveness psychosis, although appeared overt by he to when confronted minor stress.” Dr. paranoid personality be a had ex- who Vitols added that it was his “considered opinion” APPENDIX at the time of the bank robberies waive counsel. In a mentary proof, was pellant ture of the offense posed. the including acts were ion before the and, own ing roneous. cial ings ice or mentally capable adhering sion. Based Dr. each, one-half plenary hearing, hearing, filed defense, weight hence, premeditation Although merit Yitols, Prior to its recent amendment degree upon conclusions are not in his July 29, 1966, wrong totally competent years only summary that he because based as well as motion to appeals reached the same this plenary consideration not entitled right, and he was found intent, wilfulness, mal- after Ill testimony charged. documentary proof,2 second called for cooperating in Nos. the district was nature of and that he capable sentence reduce sentence more than two knew that the his first consideration. competent opinion, after judge’s find- adduced 10,865 and capable of clearly of form- any spe- his acts capable the na- conclu- in his report judge, docu- opin- was im ap- er- at bank of law nish the defendant bery Raleigh Division, Richard ty of indictment. Raleigh, North Carolina. age? Townes, Jr. ney count Company and Townes, Jr.? The maximum Your Court: Mr. Mr. Townes : Townes: Court: “Mr. Bass: Court: Mr. What (November 14,1964) years imprisonment [******] of a bank of— bill of Townes : Townes : represent Honor, or both. fine : : And do First Well, Your Do indictment at this time we you Citizens Bank Mr. [sic] you No, Yes, Thirty-six. for not more Case Number penalty you wish Ridgewood with a 709 Person Townes, more sir. your are sir. charged Richard copy of home matter ? what is provided armed than twen- would fur- (phonetic) and Trust attorney $5,000.00 address 116-63, Sympol Sympol Street, attor- your rob- one bill ? ? No, I decline. Mr. Townes : sir. extend the time for reduction of sentence twenty days, per one hundred the rule You understand that Court: days only sixty mitted reduction within as- as a entitled matter *7 imposed. Appel after the sentence was you counsel but sistance of July lant’s mani motions were right? waive that festly Similarly appellant’s too late. ef Yes, : sir. Mr. Townes fort to invoke Miranda v. of Ari State you If it. understand Court: zona, 384 U.S. 86 S.Ct. 16 L. Yes, Townes: sir. Mr. (1966), fruitless, Ed.2d 694 because nature You do understand the Court: Jersey, Johnson v. State of New 384 U.S. charge, you not ? of the do (1966), 1772, 16 86 S.Ct. L.Ed.2d 882 applicable Yes, prospectively held Miranda on Mr. Townes : ap sir. ly from the date was decided. Both States Attor- Now, Court : the United peals totally lacking are thus in merit. you pos- ney just informed as to the has 10,574. penalties Affirmed as to No. maximum the court sible may you impose. that ? Do understand Appeals Dismissed Nos. Yes, Townes : sir. Mr. 10,866. liistory petency appellant, Appellant’s proved who testi- was that medical reports. hospital himself insane doctors’ believed fied testimony regard only now. com- but sane mental Very you proceed Court : Let Mr. well. the record show Bass: Would like to arraignment that petently defendant and com- with the of Mr. Townes and with on his that case ? waives his assistance Court: Yes, sir. counsel. is case This Number 117- Mr. Bass: you may Now be seated. Raleigh Division, United States ver- you completed your Pey- Court: Have ar- SympolTownes, sus Richard Jr. raignment, Attorney? Daughtry. Mr. United States ton Maurice sir, Yes, have,

Mr. Bass: Daughtry here, we Your Your He Honor. is not Honor. represented by counsel, by Mr. C. J. Raleigh who informed Keeter from has Townes, just Court: Mr. take mo- us that he will be here tomorrow for the copy ment there to read the in- arraignment represents. man he dictment there. Townes, complete we will it as to So Mr. Townes : I have read it. Your Honor. You read Court: it? case, charged Honor, In this Your he is have, Mr. Townes: I yes, sir. in a one count bill of indictment with you Court: Well, do understand it? robbing robbery the—armed of the Bank Yes, Mr. : sir. Townes Fuquay Varina, Springs, North Caro- lina, you August 9, Well, prepared plead : are at this time ? money taken in amount the rob- bery |7,938.00. guilty, plead Your

Mr. I Townes: Honor. penalty provided The maximum law in this a fine of not more case is Now, your guil- Court: imprison- than five or thousand dollars ty, anyone you threatened twenty years ment for more or frightened you any way manner or both. you entering coerced into guilty? go- time, At this Your Honor, are ing copy to furnish defendant No, Mr. sir. Townes: of the bill of indictment. Government, Court: No one from the record, right, All sir. For the Investigation, Federal Bureau of Court: Jr., Sympol Townes, Attorney’s Townes, Mr. any- Richard United States Office or you years age you thirty-six you promised one else has reward or hope you Person Street? plead live at North of reward would if ? Towne : sir. promised Mr. Townes : not been nothing way threatened at all. Person Court: Excúseme. 709 North Raleigh. guess And I Street in have been treated I what you say gentleman would like under you assist- Now do wish to have the the situation like it is. ance of counsel in this case ? Very Yes, well. Then sir. Court: *8 No, Mr. Townes : sir. plea voluntarily? freely make this understand, Court: You Mr. Townes Yes, Mr. : sir. Townes again every in case in as case this Townes. other case also corded.” (Transcript, “Mr. Bass: Your Let his Court: (November 14,1964) [*******] pending plea Honor, 39, 40, of guilty against there is 42.) be Mr. an- re- a defendant sel represent a right to defendant Mr. Townes: Court: You that the court defendant the assistance him and will may is entitled unable Yes, waive may appoint understand that of counsel but that sir. appoint to as a employ right? matter counsel to counsel to coun- of if right, represent Court : All sir. him? anyone Now, Yes, in this Court: case Mr. Townes: sir. frightened you any manner, in threat- you wish do? Court: What do to way you you into ened or coerced that, Mr. : I Townes waive sir. entering guilty? plea a right, : All Let the record sir. Court sir, they No, have not. Mr. Townes : competently and show that the defendant anyone promised you : Has understanding and with leniency way reward of the court right to assistance waives his anything of nature ? in this case. of counsel No, Mr. Townes : sir. Now, you opportunity had an to freely you plea : And make this charge? read the voluntarily ? Yes, Mr. : Townes sir. Yes, Townes : sir. Mr. you in this Do understand that Court: charged you Very plea with armed rob-

case are well. Let his Court: bery Fuquay guilty of the Bank of Varina at be recorded in instance.” this Springs, 47, 49, 50) I (Transcript, 47, believe ? Yes, : sir. Townes (concur- Judge CRAVEN, Circuit Now, Court: do understand ring) : penalty possible maximum sug- Unquestionably, the “additional may impose court ? judges gestions” district Yes, sir, I Mr. Townes : do. permissible extra- majority opinion are you prepared plead Are Court: so, Even 11 and 44.1 polations of Rules charge this ? joining fur- I some hesitation judges. that, plead guilty suggestions Mr. Townes: to the district ther rules sir. contained What Supreme (Em- Although (1948). never Court has L.Ed.2d 309 precisely judges added.) how phasis told the they duty perform under their follows: reads as Rule Black, speaking for Rule Mr. Justice guilty, plead may not defendant “A guilty Court, four in Von Moltke v. members court, or, the consent of with spoke Gillies, nature: extent and its may re- court nolo contendere. The duty discharge properly guilty, plea accept “To light this a fuse shall against strong plea presumption plea accept of the or a right waiver of the constitutional first address- nolo contendere investigate personally ing must as and deter- the defendant long thoroughly plea mining as the circum- made voluntari- that the understanding de- ly him stances mand. The the nature consequences fact that accused the plea. plead tell him that he informed of refuses If a defendant accept plea to right counsel and desires to refuses to if the court corporation automatically end the does not defendant or if a judge’s responsibility. appear, To valid such enter a be court shall fails apprehen- shall not waiver must made with charges, judgment of the sion of the nature enter them, (cid:127) statutory included there is offenses within satisfied unless plea.” range punishments of allowable factual basis thereunder, possible follows: defenses Rule reads Right Assigned mitigation charges “(a) Counsel. and circumstances in thereof, Every to ob- other essential who is unable all facts defendant to have whole to a broad counsel shall be entitled tain represent assigned him at certain that matter. can make counsel every stage professed proceedings from his an sel only of coun- accused’s waiver *9 understandingly wisely appearance made the commis- initial penetrating compre- through appeal, un- from court sioner the appointment. circum- hensive examination all the less waives “ Assignment pro- (b) is ten- Procedure. The stances under which such a 708, 723, implementing set 68 S.Ct. the dered.” 332 U.S. cedures

939 3 8 prior Eighth decisions seems me sufficient. evokes it.” The Circuit has also Every different, judge, cir- said case is that the trial in the course discharging duty much cumstances of one demand 11, “is under Rule inquiry entitled to more than does another. consider all of the information presented that has been to the defendant colloquy Extended between court and source, from including whatever his coun- only way defendant is not sel, open pro- statements made in court investigate sufficiently can circum- ceedings, personal knowledge of de- stances.4 fendant, any other factor that would “repeatedly stat Fifth Circuit The any relationship plea. No trial court ed that determination particular rote or ritual need be observed voluntarily need 9 was made by the trial court.” 5 comply formula.” with set The Ninth Circuit has said “the court particular order to The Sixth District comply ritual” and has Circuit has said that need * * not follow suggested * rule “[i]n [11] court the nature of ritual, is not personally explain required and it charge.” follow necessary any particular 10 the defendant discussion with the defendant brief “[a] The Tenth Circuit has said that “Rule charges may regarding nature of require any 11 does not ritualistic cere- normally simplest and most direct be sentencing monial. A court does not have ascertaining of his state means finding to conduct a make 6 knowledge.” showing compliance with the rule before 11 accepting any guilty plea.” Circuit has made the same Seventh suggestion, but also that “there notes appellate One sug- trouble with may be from which other circumstances gestions judges they trial tend it is evident the defendant has genuinely to become what disclaimed 7 requisite understanding.” majority rigid opinion: “a ritual slavishly to be followed.” Eighth Circuit has that Rule said prescribe, suggest, 11 “does not or even Since we establish no ritual or rule of * particular technique procedure *. procedure ingenuity and leave to the appear necessary It would judges ways —but and means of sufficient —that the trial reach the compliance 44, with Rules 11 and I am imperative by any conclusion rational persuaded join colleagues my appropriate setting means suggestions offered. (a) out in subdivision shall be those States, 155, 6. Julian v. United F.2d 236 provided by law and local rules of (6th 1956). 158 Cir. pursuant court established thereto. Davis, 7. 264, United States v. 212 F.2d 267 example, quite recently 3. For (7th said 1954); accord, Cir. Hobbs v. Unit- Pepersack, 470, White v. F.2d 352 472 States, (7th ed 340 F.2d 851 Cir. (4th guilty plea Cir. that a 1965). is ac- ceptable “only searching inquiry after a States, 8. Smith v. United F.2d 339 527 voluntary.” to assure that its tender (8th 1964). Cir. might way. 4. It not even be the best Too States, 9. Bartlett v. United 354 F.2d colloquy much under 44 Buie could be (8th 1966). 751 Cir. self-incriminating, g., alleged e. coun- responds inquiry States, terfeiter who 10. Munich v. 337 F.2d printer by (9th 1964). (Emphasis added.) he is trade. Cir. Floyd States, Nunley States, v. United 260 F.2d v. United F.2d (5th 1958). (10th 1961). Cir. See also Johnson Cir. v. United F.2d 403-404 (5th 1965) Cir. which is accord in re- spect to waiver of counsel.