507 F.2d 109 (3rd Cir. 1974), 74-1235, United States v. Radowitz

Docket Nº:74-1235.
Citation:507 F.2d 109
Party Name:UNITED STATES of America v. Stanley RADOWITZ, Appellant.
Case Date:December 18, 1974
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
FREE EXCERPT

Page 109

507 F.2d 109 (3rd Cir. 1974)

UNITED STATES of America

v.

Stanley RADOWITZ, Appellant.

No. 74-1235.

United States Court of Appeals, Third Circuit

December 18, 1974

Argued Oct. 7, 1974.

Page 110

Dennis J. Conklin, Law Student, William J. Bender, Newark, N.J., for appellant.

Jonathan L. Goldstein, U.S. Atty., William T. Pizzi, Asst. U.S. Ttty., Newark, N.J., for appellee.

Appeal from the United States District Court for the District of New Jersey (D.C. Criminal Action No. 414-68).

Before BIGGS, ADAMS and GARTH, Circuit Judges.

OPINION

BIGGS, Circuit Judge.

Stanley Radowitz appeals the dismissal of his petition for resentencing pursuant to 28 U.S.C. 2255. The challenged sentence stems from appellant's plea of guilty to the charge of robbery of the First Savings and Loan Association of Perth Amboy, Woodbridge, New Jersey, in violation of 18 U.S.C. 2113(a). Upon accepting this plea of February 16, 1970, Judge Lawrence A. Whipple, sentenced appellant to fourteen years imprisonment 1 but vested immediate parole eligibility with the Board of Parole under 18 U.S.C. 4208(a) (2).

The appellant now asserts that, in formulating this sentence, Judge Whipple relied upon several prior state convictions which appellant contends were violative of his Sixth Amendment right to counsel. Gideon v. Wainwright, 372 U.S.

Page 111

335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). 2 See United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). Compare Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). Radowitz contends that the district court must first determine whether convictions allegedly invalid in the light of Gideon, supra, were in fact invalid before it considers the propriety of the sentence. That contention was negated by Judge Whipple in the present pending 2255 proceeding. The instant appeal followed. For the reasons stated hereinafter, it is unnecessary to take additional evidence to demonstrate that Radowitz was without counsel in at least a half dozen of his state court convictions.

This case poses two issues for our consideration. The first, which we raise sua sponte and believe merits more than passing attention, involves the admittedly defective indictment to which appellant pleaded guilty. The second requires a brief analysis of the district court's evaluation in the instant case of a sentence reconsideration petition based upon the contention that the sentencing court relied upon one or more allegedly invalid prior convictions in determining Radowitz's sentence.

I. THE DEFECTIVE INDICTMENT

Appellant's indictment, No. 414-68, filed November 6, 1968, on the Bank robbery charge consisted of three separate counts under 18 U.S.C. 2113(a), (b) and (d), respectively. After he pleaded guilty to Court I, the latter two counts were dismissed. Count I, however, erroneously stated that the bank was insured by the Federal Deposit Insurance Corporation. 3 In fact, the First Savings and Loan Association of Perth Amboy, Woodbridge, new Jersey is insured by the Federal Savings & Loan Association. 4 To further confuse matters, Count I correctly referred to 18 U.S.C. 2113(g) which encompasses savings and loan associations and makes robbery of them a federal offense under 18 U.S.C. 2113(a).

The appellant applied for dismissal of the indictment because of this defect. A hearing was held on that application on May 19, 1969, and it was dismissed. Subsequently, Radowitz pleaded guilty to an information based upon Count I, but that plea was withdrawn. His final guilty plea of February 16, 1970 was then premised upon Count I of the original indictment containing the defect and orally amended by agreement of...

To continue reading

FREE SIGN UP