Armstrong v. United States

• Decision Date: 18 February 1954
• Docket Number: No. 12034.,12034.
• Citation: 210 F.2d 951
• Parties: ARMSTRONG v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

210 F.2d 951 (1954)

ARMSTRONG v. UNITED STATES.

No. 12034.

United States Court of Appeals Sixth Circuit.

February 18, 1954.

Byron T. Jenings, Jack W. Williams, Cincinnati, Ohio, for appellant.

Hugh K. Martin, Joseph C. Bullock, Cincinnati, Ohio, for appellee.

Before SIMONS, Chief Judge, and ALLEN and MARTIN, Circuit Judges.

PER CURIAM.

This is an appeal from denial by the district court of appellant's informal petition for writ of habeas corpus. The issue raised by him is that, upon his guilty plea to the four counts of an indictment for violation of the Dyer Act, 18 U.S.C.A. §§ 10, 2311-2313, the district judge sentenced him to five years' imprisonment on each count of the indictment to run concurrently but suspended the sentence on all four counts and that, therefore, no imprisonment being imposed upon him unless he violated such suspended sentence, he should have been discharged on habeas corpus.

Upon the facts found in the record, there is no merit in this appeal. At the open-court session during which the defendant was sentenced, the court, when the hearing had proceeded to a point where sentence was to be appropriately pronounced, said:

"It\'s the sentence of the Court you be confined in the custody of the Attorney General for five years on count one; five years on count two, the same on count three and the same on count four to run concurrently and they will be suspended. In other words, when you get out you will have this five years hanging over you. At the rate you have been going the chances are you will do the five years; but I think maybe you will have seen enough of prison by that time to go straight. At any rate, instead of giving you consecutive sentences we are making them concurrent. So it\'s up to you."

If the court had not added the second part of the above-quoted paragraph, the contention of appellant that the sentence on the entire four counts of the indictment had been suspended would be correct; but the second part of the orally pronounced sentence showed the intention of the judge to sentence the defendant to immediate confinement on the first count of the indictment and to impose a suspended sentence on the other three counts of the indictment, to run concurrently. In other words, considering the entire context as shown by the record, it is apparent that the intention of the judge was to suspend the sentence on only three counts.

The attorney for appellant, who represented him on pre-sentence hearing, stated in open court that his client — appellant — understood that the judge had sentenced him to serve five years in prison and that the suspended sentence applied only to the three additional counts. The attorney stated: "Your Honor, there isn't any question in the world but that he (appellant) knew that he was getting a five-year sentence, to be served, and the other to be suspended, because after he got it I told him he was getting a five-year sentence and he said that your Honor hadn't taken into consideration the fact that he had served in jail approximately six months, * * *." He added that he advised his client to call that fact to the attention of the court. Appellant denied that the statement of the...