Pollard v. United States

• Citation: 77 S.Ct. 481,1 L.Ed.2d 393,352 U.S. 354
• Decision Date: 25 February 1957
• Docket Number: No. 38,38
• Parties: Thomas E. POLLARD, Petitioner, v. UNITED STATES of America
• Court: United States Supreme Court

352 U.S. 354

77 S.Ct. 481

1 L.Ed.2d 393

Thomas E. POLLARD, Petitioner,

v UNITED STATES of America.

No. 38.

Argued Dec. 3, 1956.

Decided Feb. 25, 1957.

Mr. Bennett Boskey, Washington, D.C., for the petitioner.

Mr. Philip Elman, Washington, D.C., for the respondent.

Mr. Justice REED delivered the opinion of the Court.

This case concerns the validity of a sentence imposed on petitioner in September 1954. On September 8, 1952, petitioner pleaded guilty in the United States District Court for the District of Minnesota to an information charging him with the unlawful taking and embezzlement of a United States Treasury check in violation of 18 U.S.C. § 1702, 18 U.S.C.A. § 1702. The district judge deferred imposition of sentence pending presentence investigation. On October 3, 1952, petitioner appeared before the trial judge at 10 a.m. for sentencing. He was then serving a sentence in a Minnesota state prison, from which he was eligible for parole the following month. The judge stated that the probation report showed that petitioner had taken an active interest in the Alcoholics Anonymous organization in prison, and petitioner told him that he contemplated continuing that interest when he was released from the state prison. The judge added that he was impressed by the fact that petitioner, who had stolen the check after a two-week drinking spree, had revealed what he had done to an officer of Alcoholics Anonymous and to the FBI without any effort to minimize the offense. He advised petitioner to join Alcoholics Anonymous immediately on his release from the state prison. He then said:

'* * * if you want to revert to drinking, you will be back here again because you will commit some federal offense, and I won't be talking to you this way if you are ever before me again.

'So, good luck to you and I hope the parole board will give you an opportunity.

'That is all.'

The judge then turned to other business.

It is clear that no explicit reference to petitioner's sentence had been made during this colloquy. But before the court adjourned at 10:30 a.m., when petitioner apparently had left the courtroom, an assistant United States District Attorney handling the matter said:

'Going back to the matter of Thomas E. Pollard who appeared this morning—I didn't quite understand that clearly—is there to be a probationary period after his release from Stillwater, or any type of sentencing?

'The Court: It is to commence at the expiration of sentencing at Stillwater.

'Mr. Hachey: Probation to commence after expiration of his sentencing at Stillwater—for how long?

'The Court: Three years.'

A judgment and order of probation was then entered suspending imposition of sentence and placing petitioner on probation for that term. The Government concedes that the judgment and order was invalid because of petitioner's absence from the courtroom when probation was imposed. Fed.Rules Crim.Proc., rule 43, 18 U.S.C.A.

Petitioner did not receive a copy of this order, despite a direction of the court, but learned of the probation from state prison officials the following month when he was paroled. On his release he begain reporting to the federal probation officer. Nearly two years later, on September, 1, 1954, the trial judge issued a bench warrant for petitioner's arrest on the basis of the probation officer's report that petitioner had violated the terms of his probation. Petitioner was arrested and brought before the court on September 21, 1954. After waiver of counsel by petitioner, the following occurred at the hearing:

'The Court: What I am going to do in your case, because of the record, is to sentence you in the first instance: It's the judgment of the Court that you be confined in an institution to be selected by the Attorney General of the United States for a period of two years. That's all.

'Mr. Evarts (Asst. U.S. Attorney): Now, Your Honor, as you recall, the record shows that he was, sentence was imposed on October 3, 1952, and I would suggest to the Court that an Order be made setting aside the judgment and commitment that was entered at that time so that the record will now truly reflect the status of the events.

'The Court: All right.'

A formal judgment and commitment was then entered, sentencing petitioner to two years' imprisonment and setting aside the judgment and order of probation entered on October 3, 1952.

Petitioner's motion to vacate this sentence under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255, was based upon a misapprehension of the basis for the sentence of 1954. He contended that, since his 1952 probation sentence was invalid, his 1954 prison sentence was also invalid because it was for probation violation. Actually, of course, it was punishment for the embezzlement. The District Court denied the motion on the ground that '(Petitioner) was initially sentenced upon September 21, 1954, and the files and records in the case conclusively show that said judgment was within the jurisdiction of the court and the sentence imposed was valid and in accordance with law.' Petitioner filed a notice of appeal and a motion for leave to proceed in forma pauperis. The District Court denied this motion 'in all respects.' Petitioner then filed a motion for leave to appeal in forma pauperis in the Court of Appeals for the Eighth Circuit. After examination of the record in the District Court, the Court of Appeals denied this motion without opinion. This Court granted leave to proceed in forma pauperis, and, deeming the issues as to the validity of the 1954 sentence of importance in the proper administration of the criminal law granted certiorari. 350 U.S. 965, 76 S.Ct. 441, 100 L.Ed. 838. We also appointed counsel for petitioner. 350 U.S. 980, 76 S.Ct. 470, 100 L.Ed. 849.

Petitioner was released from federal prison in March 1956, after his petition for certiorari had been granted. He relies on United States v. Morgan, 346 U.S. 502, 512—513, 74 S.Ct. 247, 253, 98 L.ed. 248, and Fiswick v. United States, 329 U.S. 211, 220—223, 67 S.Ct. 224, 229, 230, 91 L.Ed. 196, as meeting the question of mootness that this fact suggests. Those cases are not entirely on all fours with this one, since petitioner is challenging the legality not of any determination of guilt, but instead of the sentence imposed. But those cases recognize that convictions may entail collateral legal disadvantages in the future. Appeals from convictions are allowed only after sentences. Fed.Rules Crim.Proc., 37. The determination of guilt and the sentence are essential for imprisonment. We think that petitioner's reference to the above cases sufficiently satisfies the requirement that review in this Court will be allowed only where its judgment will have some material effect. Cf. St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199. The possibility of consequences collateral to the imposition of sentence is sufficiently substantial to justify our dealing with the merits.¹

The petition for certiorari, pro se, sought reversal of the order of the Court of Appeals denying petitioner's motion for appeal in forma pauperis and also release from his then incarceration.² Petitioner contended that the 1954 sentence was unconstitutional because it was imposed for violation of the invalid probation order.

Petitioner now, in his brief, claims that the trial judge determined on October 3, 1952, that no imprisonment and no probation should be imposed, and that consequently the imposition of sentence in September 1954 violated the Double Jeopardy Clause of the Fifth Amendment. He claims alternatively that the imposition of sentence in September 1954 in the circumstances under which it took place constituted a serious departure from proper standards of criminal law administration and violated his rights to a speedy trial under the Sixth Amendment and to due process of law under the Fifth Amendment.³ The record now before us adequately states the facts for a final determination of the basic issues. Since the Court of Appeals' denial of petitioner's appeal involved an adjudication of the merits, i.e., that there was no adequate basis for allowance of appeal in forma pauperis, we think the validity of the 1954 sentence for embezzlement should now be decided. And we conclude that it is proper that we deal with the questions as to legality of the 1954 sentence that petitioner now raises, although, had petitioner been represented by counsel in the courts below and upon his petition for certiorari, we might well have considered those questions neither preserved below nor raised in the petition. Cf. Price v. Johnston, 334 U.S. 266, 292, 68 S.Ct. 1049, 1063, 92 L.Ed. 1356.

I. The contention that the Double Jeopardy Clause of the Fifth Amendment forbids the 1954 sentence may be shortly answered. It depends upon the assertion that the trial court determined in 1952 that petitioner 'should not be subject to imprisonment or probation' on his plea of guilty to embezzlement. Without such a determination, there could not be double jeopardy. The transcript of evidence, all pertinent parts of which are quoted in the first part of this opinion, shows no such determination. The petitioner cites no words upon which he relies. The only sentence that was entered at the 1952 hearing was the one of probation, admittedly invalid because of petitioner's absence.⁴

It is clear to us, too, that the District Court did not by implication intend to acquit or dismiss the defendant. Within the morning session of court, when his failure to make explicit the sentence was called to his attention, he judge directed entry of the order suspending sentence and instituting probation. There is no occasion here for distinguishing between an oral pronouncement of sentence and its entry on the records of the court. Cf. Spriggs v. United States, 9 Cir., 225 F.2d 865, 868. Nor does the situation call for a determination of the correctness of petitioner's assertion that a federal judge has power, under a...