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United States v. Russell

decided: January 10, 1968.

UNITED STATES OF AMERICA EX REL. ALBERT ACKERMAN, APPELLANT,
v.
HARRY E. RUSSELL, SUPERINTENDENT, STATE CORRECTIONAL INSTITUTION, HUNTINGDON, PENNSYLVANIA



Staley, Chief Judge, and Kalodner and Forman, Circuit Judges.

Author: Forman

Opinion OF THE COURT

FORMAN, Circuit Judge.

On June 29, 1961, the appellant, Albert Ackerman, was arrested in Meadville, Crawford County, Pennsylvania on a charge of burglary and larceny. While in the Crawford County Jail he was charged with conspiracy to commit a prison breach. On August 7, 1961, the record indicates that he waived indictment and the appointment of counsel and pleaded guilty to the conspiracy offense before the late Judge Herbert A. Mook in the Court of Oyer and Terminer and General Jail Delivery of Crawford County. On September 5, 1961, the record indicates that he similarly waived indictment and the appointment of counsel and pleaded guilty in the same court to the indictment charging him with burglary and larceny.*fn1 No transcripts of the hearings at which these guilty pleas were entered are available, but it is conceded that appellant was not represented by counsel. On September 26, 1961, appellant was sentenced by Judge Mook to a term of two to four years on the burglary and larceny charge and to a term of one to two years on the conspiracy charge, each sentence to run consecutively.*fn2

In 1963 appellant petitioned the Court of Common Pleas of Crawford County for a writ of habeas corpus raising the same issues renewed here, that is, whether the waiver of counsel and the entry of guilty pleas were valid under the Federal Constitution. Counsel was appointed for appellant, and on November 22, 1963, a hearing was held before Judge Mook who had imposed the sentences on him. Judge Mook died before deciding the habeas corpus case and Judge John A. Cherry reviewed the transcript of the hearing and entered an order on October 8, 1964 denying the petition for the writ. After exhausting his state remedies, appellant filed a petition in the United States District Court for the Middle District of Pennsylvania for a writ of habeas corpus. On the basis of the transcript of the hearing before Judge Mook, as reviewed by Judge Cherry, the petition was denied by the United States District Court for the Western District of Pennsylvania, to which the case had been transferred.*fn3

The appellee concedes that the principle enunciated in Gideon v. Wainwright,*fn4 which requires the appointment of counsel for all indigent defendants accused of serious crimes in state courts, applies to this proceeding.*fn5 He contends, however, that appellant waived his right to the assistance of counsel.

Aside from the signed statements of appellant there is only his testimony concerning the colloquy that occurred between Judge Mook and him when his guilty pleas were taken. It appears in the transcript of the hearing on his writ of habeas corpus. On direct examination he was asked and answered:

"Q. Was any mention made by the Court to you with respect to the appointment of a lawyer or counsel for you?

"A. Yes sir.

"Q. What did he say?

"A. He said I waive my rights to counsel and just sign the guilty plea.

"Q. What if anything was said to you while you were in open court with respect to the availability of a lawyer for you?

"A. He said I had a right to counsel, and I didn't have no money, I ...


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