trial began on August 30, 1976. Gray's attorney failed to raise any objection to the violation of the IAD and petitioner claimed ineffectiveness of counsel for such failure.
The court held that defense counsel's failure to anticipate this defense was not outside the range of contemporary, competent legal assistance. Even though the district court's opinion in Mauro had been filed on May 17, 1976, the court would not find fault with counsel for not raising a potential defense which had not previously been reported.
Similarly, we find that under the circumstances of this case, the level of trial counsel's assistance was within the standard set by Moore. The two district court decisions applying the IAD to the writ in question were so recent that counsel cannot be faulted for failing to discover them. Furthermore, counsel could not have been held to have been able to come up with this defense on his own. Counsel for the Government in Mauro stated before the Supreme Court that "not even the defense saw the possibilities of the argument until it was raised in a "stroke of genius' ". 22 Crim.L.Rep. 1087 (1978), quoted in Gray, at 1214.
But all of this is purely academic under the facts in this case. Even if trial counsel had been aware of recent district court decisions in other districts concerning the applicability of the IAD, any failure to raise the IAD violation would not amount to ineffectiveness since counsel had made a reasoned choice to forego motions to dismiss the federal charges in order to avoid the possible reinstatement of state charges on the same incident. This strategic decision was commanded considering the facts and circumstances of the case, and falls well within the parameters of Moore.
Petitioner's trial counsel testified at the hearing that under the circumstance he would take no step to oust federal jurisdiction for his client's defense to the charges. State charges had been dropped soon after the federal bank robbery indictment was returned, but could have been reinstituted subject to the Pennsylvania 180 day, Speedy Trial Rule. Pa.R.Crim.P. 1100.
Counsel cited the inflammatory nature of the state charges as a reason for his preference for a federal forum. It appears that defendant had an extensive criminal record and was at the time of the bank robbery free on a pre-release program from a 6-12 years sentence on a voluntary manslaughter conviction. After the commission of the bank robbery charged in the federal indictment, defendant was involved in a high speed chase by local police officers in which the local police chief was fired upon and Williams' accomplice, who was the driver of a vehicle, attempted to run down the police chief. When captured Williams had two hand guns in his possession.
In no event did counsel wish to raise any defense that would oust federal jurisdiction and turn the defendant over to state authorities. The cumulative penalties of the state charges which were or could have been filed against the defendant could have resulted in a cumulative sentence more severe than a conviction on the federal charges. This choice was fully discussed with his client, and represents an "exercise of the customary skill and knowledge" as is required. In our opinion, to have taken action to oust federal jurisdiction would have clearly demonstrated inadequacy of counsel.
Petitioner contends that counsel could have filed a motion to dismiss subsequent to trial and the passing of the 180 day period for the state charges based on an alleged violation of the IAD which occurred when Williams was transferred back to state custody after his trial but before his sentencing.
The plain language of the IAD refers to "trial" but does not define the term. "If trial is not had on any indictment . . . prior to the prisoner's being returned to the original place of imprisonment... such indictment... shall not be of any further force or effect." 18 U.S.C.App.Art. IV(e). Although the court in Walker v. King, 448 F. Supp. 580 (S.D.N.Y.1978), held that "trial" as used in the IAD includes sentencing, no court prior to Williams' sentencing had so held. We cannot fault counsel for interpreting the term "trial" in its ordinary sense and for failure to construe it to include sentencing.
For the reasons set forth hereinabove the court concludes that the acts and decisions of trial counsel in the research and conduct of petitioner's case with respect to the violations of the Interstate Agreement on Detainers Act do not fall below the standard of "the exercise of the customary skill and knowledge", required of the profession. Moore, at 736. On the contrary, counsel's decision not to contest federal jurisdiction was entirely taken in the interest of the counsel's duty to represent his client in the most effective manner. Petitioner was accorded his Sixth Amendment right to the effective assistance of counsel, and the motion will therefore be denied.
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