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United States v. Myers

decided: October 27, 1965.

UNITED STATES OF AMERICA EX REL. JOSEPH FRANK MAZEWSKI, APPELLANT,
v.
DAVID N. MYERS, SUPERINTENDENT, STATE CORRECTIONAL INSTITUTION, GRATERFORD, PENNSYLVANIA, APPELLEE



McLaughlin, Hastie and Freedman, Circuit Judges. McLaughlin, Circuit Judge (concurring). Freedman, Circuit Judge (dissenting).

Author: Per Curiam

This appeal from denial of an application for writ of habeas corpus emanates from a Commonwealth of Pennsylvania court conviction of appellant for burglary, larceny and receiving stolen goods.

The points on appeal are that the district court erred in finding that appellant had waived his right to counsel at trial and that he was denied right to counsel at his sentencing. These matters have been thoroughly and competently presented by counsel for appellant. From review of the record the facts as justifiably found by the district court make it very clear that appellant intelligently, competently and voluntarily waived his right to counsel at his trial and that his said waiver carried over through his sentencing which latter immediately followed his conviction. The trial transcript fully substantiates this. It reads as follows:

"Therefore, I find the defendant guilty of burglary and larceny.

"All right. Now, what about sentence?

"Mr. Mazewski, do you want to tell me anything more before I sentence you?

"The Defendant: No, I don't have anything else to say, your Honor."

After the above, appellant's previous criminal record was presented to the court who had it shown to appellant first. The latter stated it referred to him. The court asked him "Is there anything on here that is not correct?" Defendant answered "No, everything is correct." The record revealed that since September 26, 1938 appellant had been confined most of the time for various offenses, primarily burglary and larceny, down to 1959 at which time he was sentenced by the state court for burglary and conspiracy to serve five to fifteen months in the county prison. The court, commenting that appellant had been incarcerated "for some twenty-five years now" then said:

"Stand up, Mr. Mazewski. Mr. Taylor, on behalf of the Commonwealth, says by reason of your previous criminal record, and you have been in jail a good many years, haven't you, off and on?

"The Defendant: Yes, I have. I would say so, your Honor.

"The Court: He suggests that I sentence you to the maximum, which would be ten to twenty years in the Eastern State Penitentiary. Now, what do you say in answer to him?

"The Defendant: I can't say nothing. What could I say? There is nothing I could say."

The order of the district court denying appellant's petition for writ of habeas corpus will be affirmed.

FREEDMAN, Circuit Judge, dissents.

ON PETITION FOR REHEARING

Before KALODNER, Chief Judge, and McLAUGHLIN, STALEY, HASTIE, GANEY, SMITH and FREEDMAN, Circuit Judges.

Per Curiam.

A majority of the Court being of the opinion that the petition for rehearing is without merit, the petition will be denied.

McLAUGHLIN, Circuit Judge (concurring).

The first eleven typewritten pages of the dissent consist partly of the refusal to believe the trial transcript which shows beyond all doubt that appellant categorically, intelligently and understandingly waived trial counsel. The balance of that section of the dissent is made up of speculation that appellant had some motivation, of which there is no evidential record or inference, for such waiver. No question whatsoever is raised in the petition for rehearing as to the validity of the waiver of counsel at trial. We note that it is the denial of rehearing that is used as the reason for the current dissent. In any event after eleven typewritten pages concerning the first question the point is expressly abandoned with respect to this appeal. The alleged excuse put forth for this is that the next point "seems to me decisive." That next point starts off by saying, "It is clear, as the majority apparently concedes, that the trial on the plea of not guilty and the sentencing were separate critical proceedings, that petitioner was just as entitled to counsel at sentencing as he was at trial, and that prejudice need not be shown to obtain redress for its denial." That statement is entirely mistaken in the context of this appeal. The majority opinion, though a per curiam, stated the exact record fact. We said:

"From review of the record the facts as justifiably found by the district court make it very clear that appellant intelligently, competently and voluntarily waived his right to counsel at his trial and that his said waiver carried over through his sentencing which latter immediately followed his conviction. The trial transcript fully substantiates this. It reads as follows:

'Therefore, I find the defendant guilty of burglary and larceny.

'All right. Now, what about sentence?

'Mr. Mazewski, do you want to tell me anything more before I sentence you?

'The Defendant: No, I don't have anything else to say, your Honor.'

"After the above, appellant's previous criminal record was presented to the court who had it shown to appellant first. The latter stated it referred to him. The court asked him 'Is there anything on here that is not correct?' Defendant answered 'No, everything is correct.' The record revealed that since September 26, 1938 appellant had been confined most of the time for various offenses, primarily burglary and larceny, down to 1959 at which time he was sentenced by the state court for burglary and conspiracy to serve five to fifteen months in the county prison. The court, commenting that appellant had been incarcerated 'for some twenty-five years now' then said:

'Stand up, Mr. Mazewski. Mr. Taylor, on behalf of the Commonwealth, says by reason of your previous criminal record, and you have been in jail a ...


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