Bercheny v. Johnson, 80-1055
| Decision Date | 22 October 1980 |
| Docket Number | No. 80-1055,80-1055 |
| Citation | 633 F.2d 473 |
| Parties | Anthony BERCHENY, Petitioner-Appellee, v. Perry JOHNSON, Director, Michigan State Corrections Commission, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Frank Kelley, Atty. Gen. of Mich., Lansing, Mich., Robert F. Davisson, Asst. Pros. Atty., Pontiac, Mich., for respondent-appellant.
Carl Ziemba, Detroit, Mich., for petitioner-appellee.
Before LIVELY, BOYCE F. MARTIN, Jr., and JONES, Circuit Judges.
Appellee Anthony Bercheny pleaded guilty to criminal charges in Michigan state court. He entered his guilty plea after the prosecuting attorney agreed to make certain concessions in the handling of his case. The trial judge reviewed and approved this agreement before imposing sentence. After sentencing, however, Bercheny felt that the state had neglected its obligations under the plea agreement. He filed a petition for a writ of habeas corpus in Federal District Court and on December 17, 1979 received a favorable ruling. Perry Johnson, Director of the Michigan State Corrections Commission, appeals.
The plea agreement provided in part that the state would voice no objection if the court appointed a psychiatrist to evaluate Bercheny. Any conclusions the psychiatrist might have reached would have been included in the Probation Department's pre-sentence report, a compilation designed to help the sentencing judge make an informed decision. At Bercheny's plea hearing, the judge did in fact order a psychiatric evaluation; for reasons not apparent from the record, however, this examination never took place. Bercheny was, therefore, sentenced without benefit of a psychiatrist's report.
The District Court directed a writ of habeas corpus to issue unless, on its own motion, the state vacated Bercheny's sentence and, within sixty days, caused him to be resentenced after giving him the promised psychiatric evaluation. The Court also stipulated that the resentencing judge be selected outside Michigan's Sixth Judicial Circuit.
Bercheny was charged with assault with intent to commit murder. He acknowledged taking his wife to a farm field and shooting her six times. He told the sentencing judge that despair and frustration over his wife's heroin addiction drove him to commit the crime. Mrs. Bercheny survived the shooting and remained at her husband's side in court.
On January 9, 1976, Bercheny, represented by attorney Joseph Hardig, entered a plea of guilty. The Court properly informed him of the consequences of his plea. The following discussions took place:
Q. (The Court): And you stating that you, your lawyer and the Prosecutor have entered into an agreement that the People have no objection if the Court appoints a psychiatrist to evaluate you; that your bond is continued and that you can live with your wife and that sentencing will be on February 26, 1976?
A. (The Defendant): Yes, Your Honor.
Q. Are you stating that no other promises have been made to you to induce your plea of guilty?
A. Yes, Your Honor.
Q. Do you understand that in this case I have not agreed with anyone about anything?
A. Yes, Your Honor.
Q. Are you stating that the plea you are making is freely, understandingly and voluntarily made and there has been no undue influence, compulsion or duress used against you to force you to plead guilty?
A. Yes, Your Honor.
Later in the hearing:
Mr. Hardig: I would like to make two motions, Judge. I respectfully request the Court appointed psychiatrist to evaluate Mr. Bercheny for the purpose of assisting the Probation Department in making its presentence report.
The Court: Any objections?
Mr. Seymour (the prosecutor): No.
The Court: So ordered.
Mr. Hardig: And therefore, Judge, that is the reason I respectfully request the Court to set the sentencing date back three weeks to February 26, 1976.
The Court: February 26, 1976, at 8:30 in the morning is the date set for sentencing.
At sentencing, the judge asked Bercheny's attorney if the information contained in the pre-sentence report was accurate. Mr. Hardig replied that the report was correct to the best of his knowledge. The judge then asked Bercheny if he had anything to add on his own behalf. Bercheny replied, "No." The court imposed a sentence of eighteen to forty years' imprisonment. The next day Bercheny was again before the court to be advised of his right on appeal. At no time during either colloquy did anyone mention the psychiatric evaluation.
The record leaves no doubt that Bercheny regarded his own state of mind at the time of the shooting as a crucial element of his case. Indeed, his initial response to the charge against him was to notify the court that he intended to claim insanity as a defense. He elected to plead guilty only after the prosecutor agreed not to oppose a psychiatric evaluation which would be brought to the attention of the sentencing judge.
We note at the outset that we cannot condone defense counsel's unexplained failure to assert his client's rights before the court pronounced sentence. The pleadings, however, do not allude to this issue, and we decline to pursue it on our own initiative.
This case presents us with a difficult choice. The crux of the matter appears to be an administrative oversight. We gather that Bercheny's court-ordered psychiatric examination was, in the press of business, somehow overlooked simultaneously by defense counsel, prosecuting attorney and sentencing judge. We do not believe that federal courts should rush to intervene each time an administrative error in the criminal justice process occurs at the state level. On the other hand, to deny relief would leave the victim of this error in an utterly anomalous position.
The legal arguments presented by the parties are quickly summarized. Bercheny relies heavily on Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), the Supreme Court's leading pronouncement on the rights of criminal defendants who enter into plea agreements. The state would have us overrule the District Court by holding 1) that Bercheny waived his right to a psychiatric evaluation when neither he nor his attorney raised the issue at sentencing; and 2) that Bercheny suffered no harm as a result of the oversight.
We are not persuaded by the appellant's contention that Bercheny waived his right to a psychiatric evaluation. Waiver cannot be presumed from a silent record. Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962). Here, the court had specifically ordered an evaluation and postponed sentencing to allow time for it. Under these circumstances, more than mere silence on Bercheny's part was necessary to nullify the effect of a court order.
Next, the appellant points out that ...
To continue reading
Request your trial
-
Grace v. Burger, 80-2044
...S.Ct. 499, 504, 27 L.Ed.2d 532 (1971); In re International Business Machines Corp., 618 F.2d 923, 929 (2d Cir. 1980); Bercheny v. Johnson, 633 F.2d 473, 477 (6th Cir. 1980); United States v. Gigax, 605 F.2d 507, 510 (10th Cir. 1979) ("if a judge's conduct or appearance in the trial of a cas......
-
Beatrice Foods Co. v. New England Printing and Lithographing Co.
...U.S.C. Sec. 2106, Sec. 144, and Sec. 455, and referring to "the court of appeals' traditional power to reassign"); Bercheny v. Johnson, 633 F.2d 473, 476-77 (6th Cir.1980) (applying the Robin test in considering remand to a different judge); Simon v. City of Clute, 825 F.2d 940, 943-44 (5th......
-
Armco, Inc. v. United Steelworkers of America
...to any gain in preserving the appearance of fairness. U.S. v. Robin, 553 F.2d 8, 10 (2d Cir. 1977). See also Bercheny v. Johnson, 633 F.2d 473, 476-77 (6th Cir.1980) (applying the standards articulated in The Unions claim that the district court judge will be unable to view the case objecti......
-
U.S. v. Baylin
...Cir.1981), and United States v. Doe, 655 F.2d 920, 929 (9th Cir.1980). The Sixth Circuit adopted the Robin test in Bercheny v. Johnson, 633 F.2d 473, 476-77 (6th Cir.1980).32 This case is immediately distinguishable from prior cases in this circuit involving alleged breaches of similar agre......