Civella v. U.S., 74--1770

• Decision Date: 28 January 1975
• Docket Number: No. 74--1770,74--1770
• Citation: 509 F.2d 896
• Parties: Carl CIVELLA, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 896

509 F.2d 896

Carl CIVELLA, Appellant, v. UNITED STATES of America, Appellee.

No. 74--1770.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 6, 1975.

Decided Jan. 28, 1975.

Anthony J. Romano, Kansas City, Mo., for appellant.

J. Whitfield Moody, 1st Asst. U.S. Atty., Kansas City, Mo., for appellee.

Before GIBSON, Chief Judge, and HEANEY, and ROSS, Circuit Judges.

PER CURIAM.

Carl Civella appeals the District Court's ¹ refusal to vacate a 1939 narcotics conviction upon Civella's petition for writ of error coram nobis. Although several grounds were asserted in the petition to justify relief, the evidence presented at the hearing below concentrated upon Civella's claim that he was not represented by counsel and had not intelligently waived counsel. The District Court's finding that Civella was represented by counsel is the only ground of error asserted upon this appeal.

Civella was arrested September 5, 1939, on a charge of transporting narcotics and released on bond September 8, 1939. The grand jury returned a three-count indictment November 4, 1939, and on November 16th Civella waived formal arraignment and pled not guilty to all counts. On November 27th he entered a plea of guilty to Count 2 of the indictment and Counts 1 and 3 were nolle prossed on that date. At the same time he was sentenced to a year and a day in prison and served over nine months before release. The clerk's hand-written entries on the Criminal Docket Sheet do not indicate that Civella was represented by counsel at any of the critical stages of the proceedings.

Civella relies upon our decision in Losieau v. Sigler, 406 F.2d 795 (8th Cir. 1969), wherein we stated:

(W)here the record is silent as to whether an accused was furnished counsel at a critical stage and where the accused introduces evidence tending to show that he was not in fact so represented, the burden then shifts to the state to prove, by a fair preponderance of the evidence, that the accused was represented.

406 F.2d at 803.

Civella testified that at no time during the proceedings was he represented by counsel, that in fact he could not have afforded counsel at that time. He argues that because the clerk's handwritten entries on the Criminal Docket Sheet do not recite the presence of counsel, we are confronted with a silent record and that since the Government did not establish that he was represented by counsel, he is entitled to relief. Before we could reach this argument, however, we would have to find that Judge Collinson's determination that the record is not 'silent' is clearly erroneous. The court's finding is based in part upon documentary evidence appearing in the record and we are unable to say that it is clearly erroneous.

The District Court in finding that Civella was represented by counsel at the time...