173 F.2d 544 | 3rd Cir. | 1949
It appears from the record and from various public records of which judicial notice may be taken
The indictment at No. 225 charged Kennedy with larceny by trick and with receiving stolen goods; that at No. 226 charged him with larceny by trick, with larceny by bailee, and with receiving goods; the indictment at No. 227 charged him with obtaining money or property by false pretenses. There is no suggestion in the facts that Kennedy was guilty of receiving
Kennedy- pleaded guilty to all the indictments and apparently to every count thereof. The Dauphin County Court imposed on Kennedy, on the indictment at No. 225, a sentence of imprisonment from one and a half to three years. Imprisonment of three years was the maximum imprisonment prescribed by law. See 18 P.S.Pa. § 2771: On the indictment at No. 226 the court imposed a like sentence of imprisonment but provided that the sentence should be served consecutively to the term of imprisonment imposed at No. 225. Pennsylvania, except in specific instances not here pertinent, has not made attempts statutory crimes. See Commonwealth ex rel. Swisher v. Ashe, 145 Pa.Super. 454, 456, 21 A.2d 479, 480. But 18 P.S.Pa. § 3691 provided that a person indicted for a completed offense may be convicted of an attempt if the proof falls short of showing a completed crime but will sustain a conviction for .an attempt.
Kennedy was incarcerated in the Eastern State Penitentiary and served the maximum sentence imposed at No. 225, viz., three years. He was then paroled under the sentence at No. 226. He went to New York and there committed a crime which constituted a violation of the terms of his parole.
Kennedy filed a petition for habeas corpus with the Supreme Court of Pennsylvania. Acting pro se, he alleged that he had been denied his constitutional rights (1) because he had not been indicted by a grand jury but had been proceeded against under the Pennsylvania statute referred to in note 2 supra, (2) because he had not been represented by an attorney and had been misled by an assistant district attorney of Dauphin County into entering a plea of guilty believing that he would receive a light sentence in a “Mercy Court”, and (3) because he was not credited properly with time served. On April 18, 1947 the Supreme Court of Pennsylvania denied him relief.
We think that the order of the court below denying the writ must be reversed. It is settled that the doctrine of res judicata does not apply to a refusal to discharge a petitioner on writ of habeas corpus but that each application under what was R.S. § 761, now Section 2243 of Title 28 U.S.C.A. is to be disposed of in the exercise of a sound discretion. Salinger v. Loisel, 265 U.S. 224, 230, 44 S.Ct. 519, 68 L.Ed. 989; Wong Doo v. United States, 265 U.S. 239, 44 S.Ct. 524, 68 L.Ed. 999. The court below therefore was in error in concluding that it was bound by any prior decision.
From all of the foregoing it is apparent that the finder of facts could have found that Kennedy was in need of a lawyer and had none. It would appear that he was indicted on six counts under which he could have been sentenced to maximum penalties ■ totaling eighteen years. In respect to the i indictments at Nos. 225 and 226 because of the provisions of 19 P.S.Pa. § 411 Kennedy could not have been legally convicted or sentenced both for larceny by trick and for receiving stolen goods but it cannot be assumed that Kennedy was aware of this important fact. He could not have been lawfully convicted or sentenced both for larceny by trick and larceny by bailee but again it cannot be fairly presumed that he knew this. Kennedy lawfully could have been convicted and sentenced for larceny by trick or larceny by bailee or for receiving stolen goods but he could not have been legally convicted or sentenced on more than one of these charges. It cannot be supposed that he knew this. Kennedy may have been aware of the fact that pursuant to 18 P.S.Pa. § 3691 he could be convicted for an attempt as distinguished from a completed offense on an indictment that charged • the latter but the indictments which confronted him at Nos. 225 and 226 charged him with five completed offenses as distinguished from attempts. In addition, as we have stated, he was indicted at No. 227 for a completed offense. Under these circumstances credence is added to the allegation of his petition, to paraphrase it somewhat, that he was induced to plead guilty at a “Mercy Court” for fear lest the full rigors of the law be visited upon him.
The indictments, as we have pointed out, charged Kennedy with completed offenses. From the form of the pleas and of the sentences at Nos. 225 and 226, it perhaps should be found that Kennedy pleaded guilty to completed offenses as charged and was sentenced as charged.
If this be so we would deem it sufficient to demonstrate Kennedy’s need for counsel without regard for the other intricacies of pleading and practice with which he was faced. If the assumptions contained in the preceding para
The Supreme Court in Bute v. People of Illinois, 333 U.S. 640, 68 S.Ct. 763, dealing with the right of an accused to counsel in the State- courts, held that whether the individual was denied due process of law must be decided in each case on the individual facts. Mr. Justice Burton held that simply because the record did not disclose any inquiry by the trial court as to Bute’s desire for counsel he was not entitled to counsel as a matter of right in the absence of aggravating circumstances. Aggravating circumstances may be found to be present in the instant case. Compare the rule of the Bute case with that now applicable in all cases arising in the district courts of the United States as laid down in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357. But see also Williams v. Kaiser, 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398; Tomkins v. Missouri, 323 U.S. 485, 65 S.Ct. 370, 89 L.Ed. 407; and in particular Rice v. Olson, 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367. Compare Wade v. Mayo, 334 U.S. 672, 68 S.Ct. 1270, decided about two months after the Bute case.
In the more recent case of Uveges v. Commonwealth of Pennsylvania, 335 U.S. 437, 441, 69 S.Ct. 184, 185, it was expressly stated by Mr. Justice Reed, “Only when the accused refuses counsel with an understanding of his rights can the court dispense wi-th counsel”, citing Rice v. Olson, supra; Walker v. Johnston, 312 U.S. 275, 286, 61 S.Ct. 574, 85 L.Ed. 830; and Johnson v. Zerbst, supra. Thus, it would appear, that the rule for the necessity, of counsel if due process is to be observed in the State courts is being brought into line with the rule applicable in federal tribunals.
The petitioner has exhausted his State remedies. He asserts three grounds for relief in his petition to thé court below. Two of these deal entirely with the application of principles of State law. But the remaining ground set -up, by him, in sub- ' stance, that he was induced in hope of mercy to plead guilty without counsel and did not understandingly waive his right to such assistance is an alternative ground and clearly raises a federal question. For this reason the Supreme Court of the United States and the -Supreme Court of Pennsylvania could not have disposed of his petition to their respective jurisdictions purely on State grounds. The court below therefore was entitled to entertain jurisdiction. See Ex parte Hawk, 321 U. S. 114, 64 S.Ct. 448, 88 L.Ed. 572; Wade v. Mayo, supra, and Johnson, v. Zerbst, supra.
It is not entirely clear from the record as to whether or not a writ of habeas corpus issued in the case at bar other than to permit the defendant to appear before the court below to present his own case. The court below seems to.have been proceeding under a rule to show cause as to why the writ should not issue for no testimony was taken at the hearing. It will be appropriate to issue a writ of habeas corpus and to proceed. to a hearing as to whether or not the petitioner should be discharged. This will afford the parties an opportunity to enlarge the record and to present the - pertinent facts to the court •below.
Under the law of Pennsylvania as it then existed, pursuant to the Act of April 15, 1907, P.L. 62, § 1, 19 P.S.Pa. § 241, it was provided that any person who was charged with the commission of a crime (with certain exceptions not here pertinent) and who was willing to plead guilty should notify the District Attorney to such effect, and that the latter should at once prepare “ * * * a hill of indictment, in the usual form * * * ” covering the offense and that the accused person could then plead guilty to the charge. We think the quoted words “before bill found” indicate that the procedure of the statute was followed.
18 P.S.Pa. § 3741 provides that “Every felony, misdemeanor or offense whatever, not especially provided for by this act [Act of March 31, 1860, P.L. 382, § 178] may and shall be punished as heretofore.” This is a “saving” act, saving for punishment what in substance were crimes at common law not specifically made such, by statute, including attempts.
For the purposes of the instant ease it is unnecessary to give the details of what transpired in New York.
See Commonwealth ex rel. John E. Kennedy v. Burke, Warden, No. 442 Misc. Docket No. 8, the Supreme Court of Pennsylvania stating in its order, “Now, * * * on consideration of the petition, answers and the record, the rule is discharged.”
See 331 U.S. 842, 67 S.Ct. 1525, 61 L.Ed. 1853.
See the transcript, p. 22.
We take no stock in the extreme animadversions made by the petitioner that the Assistant District Attorney procured Kennedy’s pleas of guilty through “ * * * fraud and trickery * * * ”. It would seem, however, that Kennedy was treated somewhat severely, perhaps because of his previous criminal record.
See the certified copies of the “Records and Proceedings enrolled in the Court of Oyer and Terminer and Quarter Sessions, Docket Entry” at Nos. 225 and 226. See also the transcript of the sentences at Nos. 225 and 226, attached to the respondent’s answer. It should be observed that by the terms of the sentences Kennedy, inter alia, was required to “ * * * restore the property stolen * * *
For an interesting review of the subject prior to the decision in Uveges v. Pennsylvania, supra, see “The ■ Right of Counsel Today”, The Journal of Criminal Law and Criminology, Northwestern. University Press,. September-October 1948, Yol. XXXIX, at pp, 342 et seq.