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UNITED STATES EX REL. JOHNSON v. RUSSELL

February 10, 1970

UNITED STATES ex rel. John JOHNSON a/k/a Jay Johnson
v.
Harry RUSSELL


Higginbotham, District Judge.


The opinion of the court was delivered by: HIGGINBOTHAM

On October 11, 1966 relator, John Johnson's case was called for trial in the County Court of Philadelphia, Criminal Division. Mrs. Carolyn E. Temin of the Defender Association of Philadelphia was appointed to represent relator, apparently "on the spot," a situation which she protested to the presiding judge, the Honorable Leo Weinrott:

 
"There is a limit to the preparation I can do on the spot and I will ask that this case not be charged today because frankly, I don't know anything about it and I am completely unprepared for it." [Emphasis added] (Notes of Testimony, County Court of Philadelphia, Criminal Division, August Sessions, 1966, p. 2 hereinafter "Trial N.T.")

 Despite Mrs. Temin's plea, "some time" later in the day, indeterminable from the Trial Notes of Testimony, page 5, relator's case went forward. After the Commonwealth rested its case, relator changed his plea to guilty, and was sentenced to four and a half to ten years in the State Correctional Institution. Trial N.T., pp. 19-21, 29. That the case proceeded, with a denial of the continuance, and resulted in the sentencing and incarceration of relator has led to the present petition for writ of habeas corpus.

 By his petition, relator raises two issues: (1) denial of right to appeal, and (2) "late appointment" of and thus "inadequate and ineffective counsel" at trial. At an evidentiary hearing held before me on November 5, 1969, counsel for relator added a third contention: (3) "whether the record at Mr. Johnson's trial * * * fails to show that Mr. Johnson's change of plea was made knowingly, understandingly, and voluntarily as required by the Supreme Court of the United States recent decision in Boykin v. Alabama [395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274]." Notes of Testimony, habeas corpus hearing, p. 5, hereinafter habeas N.T.

 I shall deal with relator's contentions seriatim.

 I.

 Relator first asserts that he was denied his right to appeal. At the hearing before me, Assistant District Attorney, Paul R. Michel stated:

 
"It is conceded by the respondent that the petitioner was never told of his right to appeal, and in that sense he is entitled to whatever relief grows out of that.
 
"Of course it was a guilty plea, and I take it he does not wish to appeal directly from the guilty plea proceeding. What he really wants to do is to further pursue post conviction collateral attack which he is doing now. So, I would suggest that although we concede that he was denied his right to appeal in the sense he was never told of it, that it is now a [moot] point and need not be pursued at this hearing." habeas N.T. p. 11.

 If relator prevails on either his second or third issue, he will be entitled to a new trial. If he does not prevail, appeal from a valid guilty plea will remain. And this - for what it is worth - respondent concedes. On this first issue, then, I direct counsel for relator and respondent to submit a form of decree consistent with the District Attorney's concession.

 II.

 "The claim of ineffective counsel due to tardy appointment is a serious constitutional challenge which may not be lightly dismissed." United States ex rel. Chambers v. Maroney, 408 F.2d 1186, at 1196 (CCA3, 1969). The Chambers case, supra, and the earlier groundbreaking case of United States ex rel. Mathis v. Rundle, 394 F.2d 748 (CCA3, 1968) established that, in the Third Circuit, the belated appointment of counsel is inherently prejudicial, and that this fact alone presents a prima facie case of denial of effective counsel. Thereafter the burden rests upon State prosecuting authorities to establish by appropriate means that the defendant was not, in fact, prejudiced.

 I have reviewed the complete transcripts of relator's initial trial and sentencing before Judge Leo Weinrott on October 11, 1966 and of his Post Conviction hearing before Judge Charles L. Guerin, Jr. on November 27, 1967. Out of an excess of caution I granted relator an evidentiary hearing on November 5, 1969. From all sources I am firmly convinced that the Commonwealth has fully met its burden of establishing that relator was not in fact prejudiced by the belated appointment of Mrs. Temin to represent him. I find that relator was not denied the effective assistance of counsel.

 The Trial Notes of Testimony reveal that Lawrence Sokoloff, the victim of the robbery positively identified relator as the culprit after describing in great detail what relator was wearing on the day of the crime. Trial N.T. pp. 6-10. When asked by Judge Weinrott, "Is there any question in your mind that this is the man that did the thing you said?" Sokoloff replied: "No question whatsoever because he was less than a foot away from me when he covered me." Trial N.T. pp. 9 and 10.

 Police Officer Donald Green and Detective Matt Tenuta then testified about the arrest of relator and the recovery of the stolen money, in large part from relator's pocket. Trial N.T. pp. 14-19. At this point in the trial the Commonwealth rested and the defendant changed his plea to guilty.

 Before me Mrs. Temin stated that "after hearing the Commonwealth's evidence, it was my opinion that no defense that we could put on would possibly prevail, and that the defendant would do himself at least some good by changing his plea at that time rather than waiting to be found guilty by the court." [emphasis added] habeas N.T. pp. 55 and 56. And again Mrs. Temin said that "after hearing the Commonwealth's evidence, there wasn't anything further I thought I had to know about the case in order to suggest a guilty plea for the defendant." habeas N.T. p. 58.

 The Post-Conviction Notes of Testimony (hereinafter Post-Conviction N.T.) repeat these same themes at greater ...


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