United States v. Harlan, 72-1802.

• Decision Date: 20 June 1973
• Docket Number: No. 72-1802.,72-1802.
• Citation: 480 F.2d 515
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert E. HARLAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

480 F.2d 515 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Robert E. HARLAN, Defendant-Appellant.

No. 72-1802.

United States Court of Appeals, Sixth Circuit.

Argued April 20, 1973.

Decided June 20, 1973.

H. Fred Hoefle, Cincinnati, Ohio (Court appointed), for defendant-appellant.

John Patrick Conley, Asst. U. S. Atty., Detroit, Mich., for plaintiff-appellee; Ralph B. Guy, Jr., U. S. Atty., Detroit, Mich., on brief.

Before CELEBREZZE, PECK and KENT,^* Circuit Judges.

CELEBREZZE, Circuit Judge.

This is an appeal from Appellant's conviction, after a plea of guilty, for armed bank robbery, for which Appellant was sentenced to 15 years imprisonment with discretionary parole pursuant to 18 U.S.C. § 4208(a)(2).

At his arraignment Appellant entered a plea of not guilty and thereafter the United States Attorney filed a motion requesting a mental examination of Appellant pursuant to 18 U.S.C. § 4244. The motion alleged, inter alia, that Appellant had a history of mental illness and had been confined to a mental institution in Michigan. This motion was granted by the District Court and a mental examination was ordered on January 11, 1972.

Appellant was examined by medical doctors specializing in psychiatry at the Federal Mental Institution at Springfield, Missouri. As a result of these examinations, two reports dated February 2, 1972, and February 28, 1972, were submitted to the District Court. In the first report psychiatric diagnosis was deferred, while the second report recommended a finding that Appellant was competent to stand trial.

On March 30, 1972, the District Court conducted a competency hearing, at which it was stipulated by counsel and Appellant that the examining doctors would testify pursuant to their reports, and Appellant personally concurred in the findings of the psychiatrists, as they appeared in the reports. The Court thereupon found Appellant competent to stand trial.

On April 20, 1972, Appellant entered a plea of guilty to a charge of armed bank robbery. After a presentence report was prepared by the probation authorities, Appellant appeared before the Court for sentencing on July 29, 1972. The Court engaged in a dialogue with Appellant and acknowledged that he had "some mental problem." Nonetheless, relying on the fact that neither of the psychiatric reports indicated that Appellant was suffering from a psychosis, the Court sentenced Appellant to 15 years imprisonment under 18 U.S.C. § 4208(a)(2), making eligibility for parole discretionary with the parole authorities.

On appeal, Appellant asserts that the District Court erred in failing to further inquire into his competency at the time his guilty plea was received and at the time he was sentenced. In support of this claim, Appellant relies on this Court's decision in United States v. Davis, 365 F.2d 251 (6th Cir. 1966), holding that the District Court in that case did not err in conducting, sua sponte, an additional hearing on the competency of the accused where his conduct before the court indicated that something might be "amiss."

It is true that in its opinion in United States v. Davis, supra, this Court stated that under the facts of that case the District Court had an obligation to hold another hearing, 365 F.2d at 255. That opinion, however, also recognized the rule of Beltran v. United States, 302 F.2d 48, 50 (1st Cir. 1962), that a trial judge has no affirmative duty to conduct, sua sponte, a second inquiry into an accused's competency "unless the court is on notice that something is amiss." See Id.

Appellant contends that the District Judge had sufficient notice at the plea hearing and/or at the sentencing hearing to alert him to the asserted fact that something was "amiss," or, more accurately, that Appellant's level of competency may have changed since the competency hearing. Specifically, Appellant argues that the District Judge should have been put on notice by the following: (1) the psychiatric reports which acknowledged Appellant's past history of mental illness and violence with firearms and his paranoid-schizophrenic personality, with aggressive and dangerous tendencies, notwithstanding the fact that neither report recommended a finding of incompetency; (2) Appellant's rejection, prior to his guilty plea to the charge of armed robbery, of an opportunity to plead guilty to the lesser, included offense of unarmed robbery; (3) the request of Appellant's trial counsel, after Appellant had entered his guilty plea, that Appellant be committed for psychiatric treatment rather than sentenced as a...