Behrens v. United States, 13756.

• Decision Date: 26 December 1962
• Docket Number: No. 13756.,13756.
• Citation: 312 F.2d 223
• Parties: Kenneth Leroy BEHRENS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

312 F.2d 223 (1962)

Kenneth Leroy BEHRENS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 13756.

United States Court of Appeals Seventh Circuit.

December 26, 1962.

Aribert L. Young, Indianapolis, Ind., for appellant.

Richard P. Stein, U. S. Atty., David W. Mernitz, Asst. U. S. Atty., Indianapolis, Ind., for appellee.

Before DUFFY, KNOCH and CASTLE, Circuit Judges.

CASTLE, Circuit Judge.

Kenneth Leroy Behrens, the petitioner-appellant, was found guilty by a jury of assault with intent to murder in violation of 18 U.S.C.A. § 113(a). Judgment was entered on the verdict and the petitioner was committed to the custody of the Attorney General pursuant to 18 U.S.C.A. § 4208(b).¹ The Bureau of Prisons was granted a 30 day and a 60 day extension of the three month period for study of the petitioner in order to complete a psychiatric examination. On June 13, 1961, after having received and considered the Bureau's report on its study of the petitioner, the District Court entered an order modifying the previous judgment and providing "that the period of imprisonment heretofore imposed be reduced to Five (5) years".

Thereafter, the petitioner filed a motion to vacate sentence. Jurisdiction was predicated on 28 U.S.C.A. § 2255. The District Court denied the motion and petitioner appealed.

Petitioner's main contentions on appeal are that the District Court's denial of his oral motion for a mental examination constituted a denial of due process and that the absence of petitioner and his counsel at the time the court modified petitioner's commitment makes the reduced sentence subject to collateral attack for want of due process in its imposition.

We find no error in the District Court's rejection of the denial of the petitioner's motion for a mental examination as affording a basis for relief under § 2255. It was an oral motion made at the commencement of the trial and after the jury had been sworn, but out of its presence. 18 U.S.C.A. § 4244 contemplates that a motion on behalf of an accused for a judicial determination of mental competency to stand trial shall set forth the ground for belief that such mental capacity is lacking. The oral motion failed to do this, and although the trial court did entertain the motion and consider it on its merits, no showing was made which required that a mental examination be ordered. Moreover, petitioner's trial court counsel stated that petitioner was, in his opinion, fully able to understand the charges against him and assist in his defense. The only showing adduced to support the motion was defense counsel's statement that petitioner's medical record revealed that he had once cut himself and "Any cutting of one's self is fairly serious". Under the circumstances here presented it was not error or a deprival of due process to deny the motion for a mental examination. Cf. Krupnick v. United States, 8 Cir., 264 F.2d 213, 216.

Although 18 U.S.C.A. § 4208(b) authorizes a commitment of a convicted defendant for a study to serve as an aid in determining the sentence to be imposed there is no final determination of the actual sentence until affirmative action is taken after the reports and recommendations resulting from the study have been received. In this respect § 4208(b) provides:

"If the court desires more detailed information as a basis for determining the sentence to be imposed, the court may commit the defendant to the custody of the Attorney General, which commitment shall be deemed to be for the maximum sentence of imprisonment prescribed by law, for a study as described in subsection (c) hereof. The results of such study, together with any recommendations which the Director of the Bureau of Prisons believes would be helpful in determining the disposition of the case, shall be furnished to the court within three months unless the court grants time, not to exceed an additional three months, for further study. After receiving such reports and recommendations, the court may in its discretion: (1) Place the prisoner on probation as authorized by section 3651 of this title, or (2) affirm the sentence of imprisonment originally imposed, or reduce the sentence of imprisonment, and commit the offender under any applicable provision of law. The term of the sentence shall run from date of original commitment under this section".

And the report to be made pursuant to § 4208(c) relates to the following data:

"The prisoner\'s previous delinquency or criminal experience, pertinent circumstances of his social background, his capabilities, his mental and physical health, and such other factors as may be considered pertinent".

If probation is not granted, either an affirmance of the maximum sentence of imprisonment prescribed by law for the offense (which maximum sentence the statute deems to have been imposed) or a reduction of that sentence, is required. That the term of the sentence as then fixed by affirmance or reduction is to run from the date of the original commitment serves merely to assure the convicted defendant of credit for the period devoted to the study — the statute thus fixes the starting point of the sentence whenever it is utilized in determining punishment, but the duration of the sentence must await final determinative action of the court in affirming the maximum term or reducing it. Until such action occurs no definite and final sentence has been imposed.

In Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 100 L.Ed. 1377, it was observed that the rule that in general, a judgment is final only when it terminates the litigation between the parties on the merits of the case, and leaves nothing to be done but to enforce by execution what has been determined, applies in criminal as well as civil cases.

In our opinion that rule is applicable here and fundamental requirements of due process made it essential that the petitioner be present at the time of such imposition of sentence, and that his right to have his counsel present be honored. Rule 43, Federal Rules of Criminal Procedure (18 U.S.C.A.) required the presence of the defendant. Rule 44 recognizes his right to be represented by his counsel "at every stage of the proceeding" in harmony with the guarantee of the Sixth Amendment. A sentencing, even to probation, is admittedly invalid in the defendant's absence. Pollard v. United States, 352 U.S. 354, 360, 77 S.Ct. 481, 1 L.Ed.2d 393. The Solicitor General in a memorandum submitted in Grabina v. United States, 369 U.S. 426, 82 S. Ct. 880, 8 L.Ed.2d 7 conceded that absence of a defendant at the time of sentencing was "fundamental error" and under such circumstances "there are basic infirmities in the sentence".² Cf. Ellis v. Ellisor, 5 Cir., 239 F.2d 175; Wilfong v. Johnston, 9 Cir., 156 F.2d 507.

We have considered United States v. De Blasis, 177 F.Supp. 484 (D.Md.1959); United States v. De Blasis, 206 F.Supp. 38 (D.Md.1962) and United States v. Johnson, 207 F.Supp. 115 (E.D.N.Y. 1962) in each of which it is held that the presence of the defendant at the time of a reduction in the maximum term of imprisonment pursuant to § 4208(b) is not required. We have also considered the construction placed on § 4208(b) in Corey v. United States, 1 Cir., 307 F.2d 839 and United States v. Behrens, 190 F.Supp. 799 (S.D., Ind.1961).³ But we are of the view that these cases rely too heavily on terminology employed in the statute which, in the context used, is at best ambiguous.

To regard the maximum term of imprisonment "deemed" to have been imposed by § 4208(b) as an actual sentencing of the defendant, even where, as here, the maximum term is expressly written into the judgment order, is, in our considered judgment directly contrary to the express intent and purpose of the section. The declared object and purpose of § 4208(b) is to enable the court to obtain such detailed information as may aid it in determining the actual sentence to be imposed. It is for this purpose that § 4208(b) authorizes and provides for a limited postponement of definitive action until the study is made and the reports and recommendations received. The action to be taken under § 4208(b) is unlike a reduction of sentence made under Rule 35, Federal Rules of Criminal Procedure. Rule 35 admits of a discretionary reduction of a sentence already definitively imposed and Rule 43 properly dispenses with the defendant's presence for such purpose. But, under § 4208(b) until the "affirmance" of the maximum term of imprisonment or its "reduction" no definitive sentence has been imposed — there is no sentence.

And, it is at the time when the actual definitive sentence which is to be served is imposed that the presence of the defendant and his right to advice of counsel is meaningful. It is only then that in many cases an intelligent decision as to appeal can be made. Probation or a light sentence may well be a determinative influence on whether an appeal is to be taken. Moreover, the right of allocution...