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May 4, 1965

UNITED STATES of America ex rel. Charles F. KELLEY
A.T. RUNDLE, Warden, etc

The opinion of the court was delivered by: HIGGINBOTHAM

Relator, Charles F. Kelley, *fn1" now serving three and one-half to seven years for larceny by trick and fraudulent conversion *fn2" brings this habeas corpus petition alleging on several grounds *fn3" the invalidity of his convictions. *fn4" Relator's first and principal contention is that 'the effect of the Trial Judge's refusal to grant a continuance was to deny relator effective assistance of counsel in violation of his right to due process under the Fourteenth Amendment * * *' *fn5" Relator alleges as a second ground that the conviction on Bill No. 762 is invalid because the date on the indictment as amended offended the statute of limitations. This second allegation establishes no basis for relief unless the Court finds, as Relator's brief properly recognizes, 'that had counsel for defendant been given more time to prepare his case, this bar to the indictment would have been properly placed before the trial court.' *fn6" I have concluded that Relator's proof falls short of the constitutional standards which would require the Court to issue a writ.


 A continuous line of decisions beginning in 1932 with Powell v. State of Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158, has given expanding substance 7 to the right of an accused 'to have the Assistance of Counsel for his defense.' *fn8" A defendant in a criminal proceeding is entitled to aid which has variously been prescribed as effective, *fn9" competent, *fn10" adequate, *fn11" and able. *fn12" A defendant is denied due process when he is denied effective assistance of counsel. Powell v. State of Alabama, supra; House v. Mayo, 324 U.S. 42, 46, 65 S. Ct. 517, 521, 89 L. Ed. 739 (1945); Hawk v. Olson, 326 U.S. 271, 274, 66 S. Ct. 116, 118, 90 L. Ed. 61 (1945); cf. White v. Ragen, 324 U.S. 760, 764, 65 S. Ct. 978, 980, 89 L. Ed. 1348 (1945). *fn13"

 But Relator's petition here turns not on an alleged intrinsic deficiency of counsel, *fn14" but rather on the contention that an error of the Court in refusing to grant a continuance rendered counsel's aid ineffective. Prejudice resulted, Relator claims, because his case was a complicated one requiring more time for preparation. *fn15" In his brief he alleges that more time would have been beneficial in allowing an opportunity to uncover an alibi and to investigate the credibility of the prosecuting witnesses.

 In Avery v. State of Alabama, 308 U.S. 444, 60 S. Ct. 321 (1940), as here, petitioner had been provided with *fn16" professionally competent attorneys at trial, and the only question for decision was whether the right to the assistance of counsel had been infringed by the denial of a continuance. In affirming the conviction, Justice Black said that the denial of a continuance, 'standing alone * * * does not constitute a denial of the constitutional right to assistance of counsel.' 308 U.S. 444, 446, 60 S. Ct. 321, 322. Avery makes it clear that a request for a continuance 'must be decided in the light of facts then presented and conditions then existing.' *fn17" Id. 60 S. Ct. at 322. Thus Avery with its close analysis of the peculiar facts of the given situation provides the model for judicial review of a claim of constitutional infringement through the failure to grant a continuance.


 Turning then to the facts in the instant petition, I can find no abuse of judicial discretion which rises to the level of a constitutional deprivation. *fn18" Trial counsel did request a continuance after informing the court that he had spoken with his client ten to fifteen minutes. However, counsel had not come cold into Kelley's case. He had spoken with an attorney, Gold, from New York who had contacted him to represent Kelly, and as a result, 'I had a fairly good picture because of what Mr. Gold told me in our telephone conversations from New York and the conversation that I had with Mr. Kelley * * *' *fn19" Moreover, there was an hour and a half luncheon recess during which Kelley's trial was continued. Although Kelley testified that his trial counsel asked him 'just one question,' *fn20" counsel testified that he interrogated Kelley for 'quite a long time,' *fn21" and that 'during that luncheon period * * * I had a good opportunity to speak to Mr. Banks (Kelley) and tried to learn as much about him as I could.' *fn22" Counsel indicated at the habeas corpus hearing that this luncheon recess was pivotal to his preparation:

 'Q. Do you feel that you had enough time to adequately prepare the defense? 'A. Well, if I had only spoken to the man in the morning before we went to trial I would definitely say no, but the long recess gave me an adequate opportunity to talk to Mr. Banks and to find out a little more about him. *fn23"

 In contrast to Relator's testimony, I have found totally credible the testimony of his trial counsel, Samuel Gorson, Esquire, as to this point as well as to the other points in issue.

 The other major purpose a continuance might have served was to have allowed time to search out witnesses for Kelley. But trial counsel testified at the habeas corpus hearing: 'Well, Mr. Banks (Kelley) told me he had no defense witnesses. I asked him that.' *fn24" Even as late as the habeas corpus hearing, Kelley had produced no evidence of witnesses who might have helped at his trial.

 Trial counsel's handling of the indictment on Bill No. 762 was also alleged by Relator to be the result of inadequate time for preparation. *fn25" In the course of the trial, the District Attorney amended the date of the indictment on Bill No. 762 from July 30 to July 1, 1958, in order to conform to the testimony received at trial. *fn26" The indictment had been returned on July 22, 1960. With a two-year statute of limitations, the date of the offense was now amended to a time prior to two years before the return of the indictment. Whether under proper challenge the indictment thereby became defective under Pennsylvania law is not an issue which is related to an allegation of prejudice caused by the denial of a continuance. Under the circumstances surrounding the amendment, the best prepared lawyer might well have been in no better position than Kelley's trial counsel was. The District Attorney amended the indictment only after the first witness, Mary Ann Shelley, had testified well after the trial had begun. Even if Miss Shelley and any other prosecution witnesses had been interviewed by defense counsel prior to trial, and even if they had revealed that the date of the offense was July 1st as later amended, a defense lawyer thus well prepared would have had to do substantially what Relator's trial counsel did -- make an on-the-spot decision based on developments at trial when the attempt to amend the indictment was made.

 But even if counsel made an error reflecting on his proficiency in not objecting to the amendment of the indictment, Relator is not entitled to relief on that ground. Certainly most counsel recognize that in Pennsylvania the statute of limitations can be tolled for several reasons as applied to non-residents. 19 P.S. ยง 211. Relator was a non-resident. *fn27" I cannot conclude that the failure to object, when there are so many reasons to indicate that the objection might be futile, rises to the constitutional dimensions of incompetence of counsel. Assuming counsel's error, it still would not offend the standard adopted in this Circuit in In re Ernst's Petition, 294 F.2d 556, 558 (3rd Cir. 1961). When a 'petitioner * * * criticizes * * * actions and omissions of defense counsel at the trial,' Judge Hastie wrote:

 We approach the problem as did the Court of Appeals for the District of Columbia when it said: 'absence of effective representation of counsel * * * must mean representation so lacking in competence that it becomes the duty of the court or the prosecution to observe it and to correct it.' Diggs v. Welch, 1945, 80 U.S.App.D.C. 5, 148 F.2d 667, 670.

 Whatever degree of incompetence might be required to raise a constitutional question, *fn28" trial counsel's failure to object to the amendment to the indictment does not ...

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