United States of America Ex Rel. George Fink, E-8912 v. Alfred T. Rundle, Superintendent, State Correctional Institution, Philadelphia, Pennsylvania
414 F.2d 542
3rd Cir.
1969
Check Treatment

*1 542 by appellant pictures; all the to Arnot’s office aft his defense was

access paint 1966 some of had sold them for Arnot under a secret er June arrangement. ings stolen, evi Under circum- and to discredit these stances, jury properly appellant’s allowed to dence of character. probative proof consider the value of the tes evidence as of the al- true that legations indictment, timony Arnot had not vari- authorized might anyone ance between and the indict- to remove the letters slight any ment In dates was immaterial. of these theories. those See, g., deed, light appel States, e. Owen v. United 386 of the use to which (5th 1967); (in put F.2d United 774 Cir. States lant the matter fact unanswera (2d 772, ble, secretary by Weldon, v. 384 F.2d 774 Cir. had died because 1967); Doelker, trial) quite possibly United States v. 327 the time of it weak 1964). stengthened (6th F.2d 343 Cir. rather than the Gov ened event, any ernment’s case. In the al appellant’s We have considered other leged prejudice insubstantial they and, claims, but without merit by Certainly largely appellant. invited instance, specifically in at least one fore admitting part of this small Arnot’s tes ruling closed a most recent of this timony er did not constitute reversible Covello, 410 court. United States v. F. addition, appropriate ror. In absent (2d 1969), petition 2d 536 Cir. for cert. objection below, request it or (U.S. 23, filed, 37 3494 U.S.L.W. June give plain error the court not to 1969) (No. 1526, Term; 1968 renumber limiting tes instruction the letters 240, Term). No. 1969 ed timony, Cifarelli, see United States v. Judgment affirmed. (2d Cir.), 401 F.2d de 514 cert. nied, 89 21 L. U.S. S.Ct. (1968), appellant

Ed.2d cannot complain

now about the Government’s See, e.g.,

reference to it summation. Capaldo,

United States v. 402 F.2d (2d 1968). Cir.

Finally, appellant claims

conviction must be reversed because im mediately prior to trial the Government UNITED STATES of America ex rel. particu was allowed to George FINK, amend its bill of E-8912, Appellant, ship lars to correct the dates of several involving paintings. ments 23 of RUNDLE, Superintendent, Alfred T. State The new dates fell between June Institution, Philadelphia, Correctional 1966, up year prior and June to one Pennsylvania. alleged Ap the time in the indictment. No. 17396. pellant’s objected counsel amend United Appeals States Court of ment; however, he was not able to state Third Circuit. prejudice appellant what would suffer Argued March change request and did not a con 24, 1969. Decided June fact, appellant tinuance. In had been furnished more description detailed all

paintings covered the indictment and involving

the transactions them. There really no claim here —as there could appellant’s

not be —that defense was

prejudiced by change of dates re

garding paintings, appellant since transportation

admitted the sale and *2 on

reveals the record that his was voluntarily knowingly. and Petitioner in was indicted of Court Quarter County, Sessions Lancaster Pennsylvania, charges. on a of number on Those us now were indict- two furnishing for ments to mi- intoxicants containing and nors an indictment two corrupting of counts of the morals a appeared minor.2 He before the court on represented March Theodore Danforth, of S. Lan- Public Defender County, pleaded caster and containing three indictments the four charges. The record indicates at indictments, the same other time two one displaying pictures for obscene motion and the other for solicitation to commit sodomy, were also before the court and prossed. were nolle Petitioner was sen- tenced on two for indictments fur- nishing pay intoxicants minors a fine, on of of one the counts cor- and rupting pay a morals of minor to undergo imprisonment fine and for not less and one-half and not years, more than three and on the second given suspended count was sentence placed years.3 probation and on for three pleas Flowers, his Petitioner now attacks Theodore White & Wil- W. Pa., Philadelphia, appellant. liams, ground for guilty on induced on his Atty., enter them George Brubaker, Dist. T. Asst. appellee. charges dropped Lancaster, Pa., for would be other required im- that he would be serve KALODNER, FREEDMAN Before prisonment hear- At the of nine months. Judges. SEITZ, Circuit ampli- ings District Court he ground by he had fied this the claim THE COURT OF OPINION sentence to understand that been led Judge.

FREEDMAN, Circuit towas months nine graphi- corpus petition represent to which the total confinement This habeas subjected, although undesirability he was cally was to illustrates recently, very parole practice, widespread sen- time on another until parole accepting pleas had a further without which he tence on years on a penetrating two one-half searches clearly par- parole. The four one-half of the defendant mind Sept. Term, (1965), Pa.Stat.Annot. §§ 19 Purdon’s 1. 1965. Nos. 88 and petition dis- His 1180-14. 1180-1 Term, hearing. 91, Sept. The dismissal 1965. missed without 2. No. opinion per curiam affirmed in Pennsylvania Superior appeal Court. his conviction. 3. the Pa.Super. Petitioner petition Al- 232 A.2d 230 filed under However he Pennsylvania Hearing Pennsylvania Post locatur denied Conviction August January P.L.1580 Act from from came not him but his agree of his a result ties that as pros- present now earlier discussion with counsel’s case he ecutor, allocution directed and the imprisoned from which on the sentence Pennsyl- to his counsel. not to paroled, under and that he was serve, required to law he will be vania day petitioner next was resen- parole, portion unexpired not the *3 change to in what amounted a tenced one-half period of four and but its full imprisonment. place At that time of the begins years the service colloquy petitioner and ensued between a present to three and one-half one judge petitioner’s con- showed which sentence.4 regarding parole. cern his the assurance claims that Petitioner in the District Petitioner testifed pleaded was breached which he of Court that he made his sentencing later, when a few minutes he would Mr. that Danforth’s assurance imposed judge, of at a sentence who first required more than nine not be to serve changed imprisonment, it to nine months imprisonment, indeed months that this to after and one-half three originally imposed and the sentence was prosecu- had narrated the detective who changed that it was after his criminal petitioner’s criminal case recited tion’s record was made known to the court. peti- justified, If claim is record. He claimed also that this nine months injustice suffered serious tioner has imprison- sentence was to be the total plea to aside his from the refusal set ment and that the sentence under which guilty. nine months of Instead of paroled he was would be discontinued. period been re- of he has nothing transcript, There is in the how- begin four and quired service to anew of ever, to show that the court had earlier years imprisonment old on his one-half only a sentence of nine months paroled and which he was sentence on imprisonment, petitioner claims. But compelled completed will be is petitioner letter corroborated present sentence of one and to serve the from Mr. Danforth him which informed thereupon years and three one-half lighter that “The first and [sentence] probation period of three for a enter on knowledge your pri- was made without years. or record.” Mr. Danforth testified proceedings, transcript held A District Court that it his recollection part made on March 21 lighter initially that a sentence had been and is Court the record in District imposed. desired. to be much before us. leaves testimony Mr. Danforth’s in the Dis- guilty by petitioner, plea It shows no acknowledged discussions the Assistant but statement had ensued him at side bar between pleading Attorney petitioner was prosecutor judge ex- with the guilty, request a detec- the court’s plained agreements no prior petitioner’s tive state facts because it would those involved believed petition- record, and its whether improper press their say. Coun- anything to counsel had er’s point binding obligation. to the of a adding: negative, “We replied in the sel There can Dan- be no from Mr. doubt fully side bar. discussed this however, petition- forth’s testimony, circum- The defendant aware believing er justified would have been stances.” pleaded that his counsel felt if he Thus, obviously although petitioner designated charges, oth- being guilty, pleaded realized that he was ers prossed would be he would nolle although course, corpus lies, Habeas reactivated petitioner’s present guilty. Peyton Rowe, is on .the confinement 391 U.S. paroled sentence on S.Ct. which he has 20 L.Ed.2d 426 relatively impris- short acts which suffer are sufficient to constitute charged, permissible onment.5 offense and the range of sentence.6 bur- District Court prove den rested on requirements incorpo These are now promise judge or “the trial had made a Pennsylvania’s rated in amended Rule of petitioner which commitment 319(a).7 Criminal Procedure The Penn guilty plea.” kept and which induced sylvania Supreme Court refused to cre (E.D.Pa.1968). F.Supp. prophylactic ate a rule which would ren allocating proof the In burden of so der invalid if the District Court fell into error. judge failed conduct an on-the-record Pennsylvania colloquy In where these criminal with the defendant which dem occurred the onstrated that his en urged knowingly. of cases trial courts to a number tered The court believed that *4 conduct a full on-the-record examination many pleas such a rule would invalidate pleads guilty, fully of a who to de- defendant of defendants who understood the fully although termine he understands the whether relevant circumstances there charges against him, of the the inquiry nature no was on-the-record because at Attorney’s “Q. 5. And is it a correct statement District promise office and if plead guilty broken, you if he to was advised would had would re- particular charges certain other these charges member it? prossed be nolle and that he would A. I think I would remember it. I do lighter would receive sentence? remember in is—(cid:127) it this situation but it lighter know, promise. sentence. He would re- A. Not as I it is never a probably very why ceive that we had discussed. the sentence That is the reason no appears transcript tell him. This is what I would conversation in the or Q. He-— n sentencing possible change as to the my understanding me. A. Just what the Court indicated to in what was of what me, he Q. Excuse Mr. Danforth: the sentence would be and final- what was ly imposed if he would a certain sentence receive because couldn’t address guilty? plead say: promised the Court and ‘You this ” certainly. changed your A. Well and now mind.’ ***** never, George I have and I think will agree any guarantee this, “Q. made You stated that do not make it going practice making any promises to this was what the sentence was to ac- understanding cases; however, be. related the cused in these circumstances, under the would im- had of what sentence the Court if recollection serves pose, you, in this case I related to Mr. was it or was it not for reasonable plead guilty Fink if he and certain the relator this case to assume that the charges dropped, of those are the between and the Court provided plead guilty indicates that the sentence will be what- would be honored he happened charges designated? ever it to be this case. as definitely.” case, Very Q. So that in this to best A. your recollection, the information which Rundle, Pink a certain ex West transmitted Mr. Commonwealth rel. v. 102, (1968); were Pa. sentence based on what 237 A.2d 196 Com by Myers, monwealth ex rel. v. advised Court? West 1, 5, 3, 918, 921, A. That is correct. Pa. n. 222 A.2d n. 3 Barnosky (1966) ; that a cer- Q. And that was advised Commonwealth ex rel. Maroney, 161, 165, tain sentence if he did 414 Pa. would 199 A.2d charges? plead guilty 424, (1964). certain quite strongly that, IA. don’t think as my adopted 1964, understand- The rule was but he was told that was ing June ef- January Judge’s (415 xci) sentence would be. fective of what Pa. adopted it the amendment Q. you take these November from present February 3, 1969, when the heavier or the effective 432 Pa. xxxiii, imposed? apply the amendment second sentence does not case, this A. which the Yes.” adoption. entered its s{« s{: 5j« % Danforth, promise “Q. Mr. if a had been by Judge by in this case or made point purpose for requirement not ex- We did that time such however, ultimately led, presented to remand the issues ist.8 It was effect, retrospective give whether broader than a “commitment” the rule limited hearing by holding judge had been that in where the made cases petitioner’s had counsel. An additional occurred after the court announced issue mandatory ruling for would be is whether the was induced that its agreement future, appropriate of an an unfulfilled between the the absence prosecution petitioner’s “served at least counsel on-the-record more nine to the Com- the sentence would not be shift the burden of Cushnie, imprisonment. Commonwealth v. months monwealth.” 131, 135-136, 249 A.2d 433 Pa. range be- full the issues extends yond the “commitment” claims of a recently very judge pros- problem trial or this We reviewed ecution, is- v. Run not fulfilled. As McCloud which were ex rel. in United States 1968).9 dle, presented, (3 There sue which the District Court 402 F.2d 853 Cir. proceed consider, transcript not existed of state whether no ignorant ing many earlier which that his Judge upon impose For- him for were entered. would speaking prior court said: the remainder sentence on man paroled. which he had been strong presumption “[T]he of consti- clear this whether claim was made regularity tutional which attaches to a *5 petitioner so, court and if whether State collaterally state court conviction regarding exhausted his State remedies may attacked, be overcome where there question The of this it. exhaustion of proceed- of is no record the state court rem- claim, if as its merits State well as ings exist, or where such a record does exhausted, for the have will be edies shows the trial court did not District determination. Court’s properly question the on ac- defendant cepting judgment 857) of District Court plea.” (p. The his cause and the remanded will be reversed In the of circumstances that case we with consistent for further proof peti- of that the burden 10 opinion.9 this guilty pleas voluntary rest- tioner’s here, ed on the Commonwealth. al- So Judge (dissent KALODNER, Circuit though transcript not there is it does ing) : by reflect a full the court of understanding of the Dis- regarding would affirm Order his denying burden, habeas the relator’s guilty, of and the of petition corpus for these reasons: therefore, fell to on the Commonwealth prove petitioner did not enter petition The hard core relator’s bargain any plea pleas in reliance on induced counsel to “was [his] not fulfilled. compromise guilty plea enter a with the remanded The case therefore must be a sentence not ex- ceeding (9) petitioner’s nine to the Court so that months would im- District be posed,” may judged perspective in contrast from a half claim and actually to three sentence where the burden rests by the state trial court. Commonwealth. Rundle, will consider ex West v. The District Court 8. Commonwealth rel. just 102, (1968); Comm effect of the decision handed down 428 Pa. 237 A.2d 196 Boykin 131, 134, Cushnie, Ala- onwealth v. 433 Pa. v. bama, 290, 238, 1709, (1969). S.Ct. 23 249 A.2d 395 U.S. 274, compare it Mc- L.Ed.2d Carthy and Crosby also, States, ex See United States rel. v. United 394 U.S. 1968). (3 (1969) Brierley, v. 404 F.2d 790 Cir. 89 S.Ct. L.Ed.2d 418 Halliday States, United 394 U.S. L.Ed.2d 16 S.Ct. Court, hearing place you probation ond after a count and years. and his counsel testi- for a of three which the relator transcript of the state sen- fied, and the charge furnishing “On the intoxi- tencing proceeding in tes- was introduced minors, Complaint Sep- to cants No. 88 timony, the relator’s afore- found Term, 1965, tember I sentence merit contention was without stated pay a fine of one hundred dollars. On vol- was entered that “the Complaint September Term, No. 89 untarily”. the District Court While offense, the same I sentence Opinion1 stating “The erred in in its pay a fine of one hundred dollars upon persuasion de- rests burden pay prose- and in both cases to costs plea,” his to withdraw fendant who seeks cution and stand committed until instant case the error is harmless complied with, these sentences are sentencing record, and state since the each these three are to sentences below, clearly correct- establish the consecutively concurrently. run not findings on of the District Court’s ness May say “Defendant some- Fink: contentions. of the relator’s the score thing? taking Are into considera- respect The relator’s contentions with parole tion the fact that I have this ? “understanding” of the sentence to his taking “The ? I am into Court: What receive, and he did not he was to consideration the fact that still are time for know he would have serve subject for violation parole, are established violation parole for that reason following quoted groundless as any impris- sentenced transcripts and re-sen- corrupt- onment on the count of second tencing proceedings: ing minor. the morals of a you realize, Fink, Mr. “The Court: parole “Defendant Fink: Which are pretty here. record serious have a you taking into consideration? I have of that fact You are aware already years. done the Now, two if not? go I am to back there— *6 “Defendant Yes sir. Fink: “The You Court: will have to serve you charged “The Court: And are not your parole you violation before start seriously present charge as in this as serving these sentences. you charges you were on other which “Defendant what I am Fink: That’s appeared on, before this Court and for telling you. I four have and a half only that reason and that reason the years. probably sentence of this Court will “The I know. I that into Court: took prior not be as severe it was on the as charges when I this sen- you consideration came in here on charges. If forgery, tence. These are serious larceny (Ini- sodomy.” and you did not time to serve on have proceeding). tial parole violation, probably would have you imprisonment the on sentenced Complaint Sep “The Court: On No. 91 corrupting the morals count second Term, 1965, tember Commonwealth v. put you on I have on which minors George charged Galen Fink, on two being probation. You are sentenced corrupting counts with the morals of prison only half in now to and a minors, in the first count I sentence your parole is a and the violation you undergo imprisonment pay—to parole authorities that the matter fifty undergo dollars, a fine of im (Resentencing proceed- up.” to take prisonment County in the Lancaster ing.) Prison for a of not less eighteen Opinion nor more than three The mjnths District Court’s discloses years. suspend quoted sentencing sentence on the sec that it considered the Opinion 1. reported F.Supp. (E.D.Pa.1968). The of the District Court is 1124 * * * practice rejecting accepting contention the record in relator’s penetrat- conse- did not understand the without ing quences plea, of his ne- which searches out the and this gates clearly majority’s mind of re- the defendant and that: statement veals on the record that his presented, the Dis- “An which issue voluntarily knowingly.” and consider, did not is wheth- agree majority’s ignorant with statement er clearly upon impose record must reveal that a him im- would guilty plea “voluntarily prisonment was made and for the remainder disagree holding knowingly” its prior had been sentence on he case fails

paroled.” record instant guilty plea the relator’s disclose that point pertinent knowingly” “voluntarily and made. judge relief state trial who denied Post The evidence establishes that the rela relator in the latter’s Conviction Hearing proceeding, Act2 tor was habitual criminal had considered who rejected previously identical merit as without suffered follow ing charging presented ha- in the instant on contention convictions indictments sodomy, forgery. corpus petition, larceny Penn- him with beas Pa.Super. sylvania Superior candidly at 210 He admitted on his cross-exam affirming, (1967), A.2d instant he ination specifically “quite the re- considered and found few” with the law had “brushes groundless. As contention what lator’s before” “knew noted, majority allocatur was denied has was.” Pennsylvania Court. majority’s disposition in in- This, too, compels must said the score stant ease this observation: majority’s that: statement Judicial enforcement of constitutional graphi- guarantees corpus petition process “This be dis- habeas due should undesirability premised criminatingly clinically cally illustrates seq. my question? P.S. 1180-1 et answer § “Q. Will question, Just answer “The Court: below, On cross-examination court explain. Fink, Mr. and then can Mr. Rutherford from the Office “Q. No. County, Attorney of Lancaster By Mr. Rutherford: Pennsylvania, rele testified in the relator telling that when “Q. now You are us N.T.) part (pp. : 36-37-38 vant follows you plead guilty know doing Did “Q. know what were charged admitting what were *7 you plead guilty? what with? my plea “A. I based on— only guilty on I “A. admitted you my question? “Q. Will answer strength months sentence. of the nine n —on Mr. assurance that “A. Danforth’s Believe me. exactly happen. is what would that knew, though, you a what “Q. But gun your nobody No, but held a “Q. plea meant? head? ‘yes’. “A. Yes. I said No. “A. regardless of what motiva- “Q. So Nobody you this; is “Q. forced do you was, knew a tion what that correct? meant? say they “A. didn’t did. No. “A. Yes. you had a brushes And few “Q. meant “Q. knew a You law with the before? you saying: ‘Yes, what I did were right. That is “A. accusing having me of done’? are quite fact, few; “Q. In correct? a “A. Yes. right. That “A. You knew that? “Q. guilty plea ? “Q. So knew what “A. Yes. “A. Yes. yourself to be “Q. consider And plead You knew that “Q. average intelligence? person You don’t admitting consider— things charged with; is that imagine so.” “A. correct? plead guilty “A. to —(cid:127) particular presented case, Ward, Jr., Pueblo, in the facts Lester L. Colo. homage currently (Predovich Ward, Pueblo, Colo., in blind & on the process prevailing sweeping brief), appellee. due doctrine cogni- regrettably to accord which fails PHILLIPS, Before LEWIS “general zance to the welfare” clause HICKEY, Judges. Circuit to the Constitution. the Preamble PHILLIPS, Judge.

ORIE Circuit L. Helen White filed this action T. against Continental County in and for the of Pueblo April 11, of Colorado on and State alleged beneficiary that she was the She policy in insurance full force and an effect; husband, WHITE, Plaintiff-Appellee, that her William M. Helen T. thereunder; White, was an insured in killed an automobile accident The CONTINENTAL CASUALTY COM- insured and that such accident PANY, corporation, Defendant- policy; under the that she filed Appellant. hazard loss; the amount written No. 1-69. owing policy $50,- to her under the Appeals United States Court of paid 000; had not that Continental Tenth Circuit. May 8, 1967, any such sum. On on Aug. 11, 1969. Continental, petition the case was duly Dis- removed United States for the District of Colorado. filed its answer June Continental everything it admitted wherein except complaint, it denied lia- ground bility the deceased not, death, of his on the at the time policy, as “holder” of the of the business policy, and defined term is such not within his death was therefore coverage policy. of the August 16, 1966, On Continental had policy AA effect No. policy president insured all the officers, employees directors and policy holder. The holder was the Minnequa Pueblo, Colorado, Bank Durango, First National Bank of Colora- do, Salida, the First National Bank *8 Colorado, Bank First National Alamosa, Colorado, of As- Bank pen, policy provided for Colorado. The payment principal $50,000 sum of arising in- the case of death policy sured hazard. contained the following description of hazards: Abram, Pueblo, Against E. Donald Colo. Insur- “The Hazards Which (Phelps, Fonda, Hays Pueblo, Policy Abram, & Is This ance Provided Under Colo., briefs), appellant. Are, on the Provided Such Hazards Arise