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August 25, 1964

UNITED STATES of America ex rel. James ALLEN
A. T. RUNDLE, Superintendent State Correctional Institution, Philadelphia 30, Pennsylvania

The opinion of the court was delivered by: WOOD

This is a habeas corpus petition filed by a State prisoner who is presently serving a life sentence for first degree murder. *fn1" The petitioner never appealed his conviction, but has pursued his habeas corpus remedies through the State Courts without success. *fn2"

Of the various grounds advanced we consider his most serious allegation to be that his guilty plea was the product of coercion, when on the day of trial, March 23, 1959, the trial court refused to permit him to dismiss his two court appointed attorneys and compelled him to enter a plea and proceed with the trial.

 Examination of the record discloses that he was arrested in July of 1957, and in December of that year, the court, pursuant to his 'Affidavit of Destitute Circumstances,' appointed two experienced attorneys *fn3" to represent him as required by the Act of 1907, 19 P.S. § 784. It appears from the petition that the defendant while incarcerated became dissatisfied with his court appointed attorneys and wrote a letter dated November 18, 1958 to the Attorney General of Pennsylvania (Ex. 'F-2' attached to the petition) seeking advice regarding the procedure to have them withdrawn from the case. According to Mr. Allen the Attorney General replied that petitioner would have to take this matter up with the Philadelphia District Attorney. Thereafter, petitioner made no application for withdrawal of his counsel until the day of trial, March 23, 1959. *fn4"

 Following this series of events, after a discussion with his court appointed attorneys, the petitioner pleaded guilty and a three-judge court was convened to determine the degree of guilt and manner of punishment. *fn5"

 The petitioner seeks to attach some sinister purpose to an unreported sidebar conference between the court, his counsel, and the prosecutor which occurred when the defendant requested the court to permit him to make a statement. He contends that all parties involved conspired thereafter to pressure him into entering a gilty plea under fear of the maximum penalty. (Petition at pp. 3, 4, 7.)

 Such a reckless allegation impugns the integrity of the court and the very processes which were so scrupulously observed to afford the petitioner a just and fair trial. Shorn of all invective the petitioner's constitutional claim is whether his plea of guilty was coerced when on the day of trial, the court refused his request for new counsel or a continuance to obtain counsel of his own choice.

 The right of an indigent defendant in a criminal trial to have the assistance of counsel is a 'fundamental right' essential to a fair trial. Gideon v. Wainwright, 372 U.S. 335, 342, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). Such a right, however, like all fundamental rights, is not unrestrained. An indigent defendant without funds does not have the right to tell the court who it should appoint to represent him. Wilson v. United States, 215 F.Supp. 661 (W.D.Va.1963). An accused cannot insist on a right to select his own counsel in a manner which will obstruct the orderly procedure of the court. Releford v. United States, 288 F.2d 298, 301 (9 Cir. 1961). As Mr. Justice Black so lucidly stated the law on this point in Avery v. Alabama, 308 U.S. 444, 445, 446, 60 S. Ct. 321, 322, 84 L. Ed. 377 (1940):

 'Had petitioner been denied any representation of counsel at all, such a clear violation of the Fourteenth Amendment's guarantee of assistance of counsel would have required reversal of his conviction. But counsel were duly appointed for petitioner by the trial court as required both by Alabama law and the Fourteenth Amendment.

 'Since the Constitution nowhere specifies any period which must intervene between the required appointment of counsel and trial, the fact, standing alone, that a continuance has been denied, does not constitute a denial of the constitutional right to assistance of counsel. In the course of trial, after due appointment of competent counsel, many procedural questions necessarily arise which must be decided by the trial judge in the light of facts then presented and conditions then existing. Disposition of a request for continuance is of this nature and is made in the discretion of the trial judge, the exercise of which will ordinarily not be reviewed.' (Emphasis supplied)

 It was for the trial court to decide in its discretion whether the petitioner's 'dissatisfaction' merited delaying the trial and the appointment of new counsel to defend him. Such a request coming on the day of trial, and particularly in light of his attorney's statement that he had no notice of this fact as recently as three days before trial, fully justified the trial judge's refusal to appoint new counsel or grant a continuance. Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 849, 11 L. Ed. 2d 921 (1964).

 'The matter of continuance is traditionally within the discretion of the trial judge, and it is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel.' Also see United States ex rel. Puntari v. Maroney, 220 F.Supp. 801 (W.D.Pa.1963); Com. v. Novak, 395 Pa. 199, 213, 214, 150 A.2d 102 (1959).

 Our independent examination of the record discloses that petitioner's claim on this ground is without substance and it is accordingly dismissed.

 The two remaining constitutional claims are: that the petitioner was denied due process because he was not accorded a speedy trial; and the indictment is defective because the petitioner never signed it when he entered his guilty plea. While it is unfortunate that the petitioner was confined for nearly two years before trial, he has not stated any facts in his petition which show that this delay caused the trial to be unfair. Furthermore, since the petitioner did not allege that he had ...

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