Boruff v. United States

• Decision Date: 05 December 1962
• Docket Number: No. 19612.,19612.
• Citation: 310 F.2d 918
• Parties: Henry Franklin BORUFF, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

310 F.2d 918 (1962)

Henry Franklin BORUFF, Appellant, v. UNITED STATES of America, Appellee.

No. 19612.

United States Court of Appeals Fifth Circuit.

December 5, 1962.

William H. Izlar, Jr., Robert L. Steed, Atlanta, Ga., for appellant.

William A. Davis, Jr., Asst. U. S. Atty., Sampson M. Culpepper, Asst. U. S. Atty., Macon, Ga., for appellee.

Before TUTTLE, Chief Judge, BROWN, Circuit Judge, and JOHNSON, District Judge.

TUTTLE, Chief Judge.

The appellant here is met at the threshold of his appeal from a conviction and sentence with the very serious question whether this Court has jurisdiction of this appeal. This question arises from the undisputed fact in the record that no notice of appeal was filed within ten days following the November 22nd order of the trial judge sentencing appellant to serve a term of 2½ years following his conviction of the crime of committing fraud by wire, 18 U.S.C.A. § 1343.

Essential to a consideration of the Government's motion to dismiss the appeal for failure to comply with the requirements of Rule 37(a) (2) that a notice of appeal must be filed within ten days, are the following facts: Appellant was represented by appointed counsel. It is not disputed that counsel adequately and competently represented the appellant during the trial of his case, or that he appeared and stood with him in court when appellant was sentenced. Nor, do we think it can be disputed, based largely upon the order subsequently entered by the trial court authorizing Boruff to appeal in forma pauperis, that counsel considered he had fully performed his duty after sentence was pronounced, and that he did not advise Boruff of his right to appeal and to his right to have counsel appointed for him for the prosecution of such an appeal if he elected to proceed. It is also clear from the Court's order that the Court itself did not advise Boruff of his right to appeal, or of his right to have counsel represent him if he should choose to do so.

The appellant, having informally attempted to obtain assistance from the trial court and from members of this Court by his own efforts, and without the aid of counsel, the trial court considered it appropriate approximately four months after the date of the sentencing to enter the following order:

"It appearing that appellant was, on November 21, 1961, by a jury convicted of the offense of `obtaining money through fraudulent communications by telegraph\' (18 U.S.C. 1343), and was, on November 22, 1961, sentenced to the custody of the Attorney General for two and one-half years, and that he now probably contends that he was excused from the 10 day requirement for taking an appeal (Fed.R.Crim.P. 37(a) (2)) by reason of the fact that his court appointed counsel, although with him and representing him both during the trial and at the time of sentence, did not advise him of his right to an appeal, and by reason of the fact that under said circumstances the court did not advise him of his right to appeal so that if he so requested the Clerk might prepare and file a notice of appeal on his behalf, Fed.R.Crim.P. 37(a) (2),

"And it appearing further that on March 20, 1962 appellant filed with the Clerk of this Court a four-page document over his signature captioned in this cause and entitled `Appeal\' reciting, among other things, that he `has filed this appeal all by his self in his own words and prays this court will give him justice and set him free of all charges\'; and containing this allegation: `The defendant Boruff ask his court appointed attorney if he could appeal his case and the court appointed attorney ask the defendant Boruff how he would pay for an attorney if he, the defendant Boruff, could not pay this attorney fee.\'

"And it appearing further that with respect to what transpired between appellant and his court appointed counsel in regard to discussion of appeal, said counsel wrote this court on February 10, 1962 as follows:

"`In response to your letter of February 9th, I don\'t remember discussing with Mr. Boruff the question of appeal. I feel almost sure that he said nothing to me about desiring to appeal the verdict and I am equally sure that I did not encourage any appeal. I am not absolutely sure, but to the best of my knowledge there was no discussion regarding an appeal.

"`I am absolutely sure that I did not tell him that the case would be reversed if appealed but that such would not be taken without a fee.\'

"And it appearing further that appellant\'s said appeal is supported by his affidavit that he has no means with which to pay for counsel or legal papers pertaining to his case,

"Now, therefore, without expressing or intimating any opinion with respect to the timeliness of this appeal and being of the view that this is a question for determination by the Court of Appeals, it is ORDERED that appellant be and he hereby is permitted to prosecute his appeal in this action to conclusion without pre-payment of fees or costs or giving security therefor, and any costs of printing and preparation of transcripts required shall be borne by the United States of America.

"IT IS FURTHER ORDERED that the official reporter for this district transcribe and furnish for use in this appeal the original and one (1) copy of the proceedings had in the trial of the above stated case at Thomasville, Georgia, November 20, 21, and 22, 1961, payment to be made by the United States for the original only in accordance with Title 28, U.S.C.A. § 753.

"This 30th day of March, 1962.

"(s) W. A. BOOTLE UNITED STATES DISTRICT JUDGE"

Rule 37(a) (2), which provides for the time for taking the appeal in a criminal case within ten days after the entry of the judgment appealed from provides:

"When a court after trial imposes sentence upon a defendant not represented by counsel, the defendant shall be advised of his right to appeal and if he so requests, the clerk shall prepare and file forthwith a notice of appeal on behalf of the defendant."

It is the appellant's contention that within the intendment of the language of this section he was truly "a defendant not represented by counsel," either because of the failure of counsel to advise him of his right to appeal, or because of the fact that he had no counsel for at least a major part of the ten day period during which, under the appropriate rules, he could effectively exercise his determination to appeal his conviction. He says, therefore, that it became the duty of the Court to advise him of his right to appeal, whereupon the Clerk would have been required to prepare and file forthwith the notice of appeal on his behalf. He argues that the failure of the Court under such circumstances to provide counsel who would advise Boruff of his right, or in default of this to advise him itself of his right to appeal, prevented the running of the ten day period until such affirmative obligation was complied with. This, appellant contends, was complied with when the trial court entered its order of March 30th above set out.

The Court is faced with several basic considerations which bear upon the contentions of the parties here. Undoubtedly the first and foremost, because it goes to the very foundation of our system of justice, is the proposition that unless an accused has intelligently and effectively waived the right to counsel, the Sixth Amendment "stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty." Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461. The second is equally a part of our basic constitutional concept of justice — it is that the right to counsel extends through the exercise by him of his right to appeal. See Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593. A further important principle applicable here is that direct appeals are the proper means of seeking to set aside errors of law committed by the trial court. Normally a motion under 28 U.S.C.A. § 2255, is not available to correct mere errors of law. Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982, Larson v. United States, 5 Cir., 275 F.2d 673. These three propositions, it seems, are persuasive of the correctness of appellant's contention that the Court should, if it may properly do so, construe the terms of Rule 37(a) (2) in such manner as to require that until an accused person who is not represented by counsel of his own choosing has actually been "advised of his right to appeal" there still remains something to be done before the statutory¹ ten-day period begins to run.

Equally clear legal propositions argue against such construction. The first of these is that the ten day period for perfecting an appeal is jurisdictional and cannot be extended by the courts. United States v. Robinson, 361 U.S. 220, 80 S.Ct. 282, 4 L.Ed.2d 259. A further proposition is also stated in the Robinson case to the effect that even though the trial court finds as a matter of fact that a failure to file a notice of appeal within ten days is due to "excusable neglect," this fact cannot result in permitting the successful prosecution of an appeal filed after the expiration of the ten-day period. Also, appellant is here faced with the generally accepted principle that the failure of the trial court to appoint counsel, unless such appointment is intelligently and effectively waived, is such a clear violation of a constitutional right that such a failure can be reached by motion under Section 2255.

We think that the positive mandate contained in Rule 37(a) (2) that "when a court after trial imposes sentence upon a defendant not represented by counsel, the defendant shall be advised of his right to appeal," coupled with Rule 44 of the Rules, "if the defendant appears in court without counsel, the court shall advise him of his right to counsel and assign counsel to represent him at every stage of the proceeding unless he elects to proceed without counsel or is able to obtain counsel," compels...