DeAngelis v. State of South Carolina, Civ. A. No. 71-814.

• Decision Date: 30 August 1971
• Docket Number: Civ. A. No. 71-814.
• Citation: 330 F. Supp. 889
• Court: U.S. District Court — District of South Carolina
• Parties: James V. DeANGELIS, Petitioner, v. The STATE OF SOUTH CAROLINA and William D. Leeke, Director, South Carolina Department of Corrections, Respondents.

330 F. Supp. 889

James V. DeANGELIS, Petitioner, v. The STATE OF SOUTH CAROLINA and William D. Leeke, Director, South Carolina Department of Corrections, Respondents.

Civ. A. No. 71-814.

United States District Court, D. South Carolina, Columbia Division.

August 30, 1971.

Patrick E. Treacy, and Jack F. McGuinn, Columbia, S. C. for petitioner.

Daniel R. McLeod, Atty. Gen., for the State of South Carolina, and Emmet H. Clair, Asst. Atty. Gen., Columbia, S. C., for respondents.

ORDER

HEMPHILL, District Judge.

Petitioner, presently detained under supervision of the South Carolina Department of Corrections, seeks bail in this forum, pending a determination of his plea for a writ of habeas corpus. On August 5, 1971, he filed his petition for the Great Writ, and simultaneously therein asked "That he be dismissed outright or on bail and that bail be granted forthwith, pending his appeal to the United States Supreme Court and any proceedings hereunder." This court ordered respondents to file a return, and on August 11, 1971, heard the motion for bail in open court. A recitation of events preceding the present plea is appropriate.

Petitioner's present confinement is pursuant to orders of commitment of the Clerk of Court for Lexington County, South Carolina. He was indicted at the May, 1970 term of the Lexington County General Sessions Court on three indictments charging receiving stolen goods, two indictments charging him with receiving stolen goods and conspiracy to commit the crime of receiving stolen goods and a sixth indictment charging him with housebreaking, safecracking, and larceny. The Petitioner was represented by retained counsel, W. L. Cooper, Esquire, of the Lexington County Bar. A jury was impaneled and the trial was imminent. Prior to presentation of testimony Petitioner's counsel requested and was granted time to discuss the possibility of entering guilty pleas to the several indictments. Thereafter a negotiated plea¹ was accepted under which the Petitioner offered to enter a plea of guilty on each of the six pending indictments and to accept a sentence of sixty (60) years, provided he would not have to serve more than three (3) years before being placed on probation. As a further condition he insisted that the indictment charging him with housebreaking, safecracking and larceny should be amended to charge instead the crime of accessory after the fact to housebreaking and grand larceny. This plea was recommended to the trial judge. The Honorable George Bell Timmerman, Jr., Presiding Judge of the Eleventh Judicial Circuit of South Carolina, sentenced the Petitioner in the aggregate to the term of twenty (20) years, provided that upon the service of three (3) years the balance of the sentence would be suspended and defendant placed on probation for five (5) years. The Petitioner was given one hundred twenty (120) days within which to arrange his business affairs before he commenced the service of his prison term. During the 120-day period, in August, 1970, the Petitioner made a motion for a new trial upon the grounds of after-discovered evidence. This motion was denied by the trial judge. The denial was appealed to the Supreme Court of South Carolina and in an opinion filed July 8, 1971, 182 S.E.2d 732, the South Carolina Supreme Court affirmed the conviction and sentence.

The trial court admitted the Petitioner to bail pending the hearing of the application of a new trial, on grounds of after-discovered evidence and the South Carolina Supreme Court, through Chief Justice Moss, admitted the Petitioner to bail pending determination of the appeal by that court. It should be noted that the Chief Justice set bail in the amount of Twenty-Five Thousand ($25,000.00) Dollars cash. The Petitioner met that cash bail and upon his subsequent incarceration this amount was returned to Petitioner.

Subsequent to his plea and sentence of May 28, 1970, Petitioner has been indicted in the Court of General Sessions for Richland County on charges of receiving stolen goods and conspiracy to commit housebreaking and larceny, to which he entered a plea of not guilty and was given to trial by jury. He was represented by retained counsel Jack McGuinn, Esquire, and Patrick E. Treacy, Esquire, of the Richland County Bar. The jury found him guilty on both counts and he was sentenced (by the Honorable John A. Mason of the Richland County Criminal Court) on September 2, 1970, to confinement for a period of seven (7) years concurrent with the sentence imposed in Lexington County. He was thereafter indicted in the Lexington County Court of General Sessions in September 1970, on a charge of keeping a gambling device. He entered a plea of not guilty and went to trial before a jury. The jury returned a verdict of guilty and he was sentenced by the Honorable James B. Morrison, Presiding Judge, on September 14, 1970, to confinement for a period of one (1) year and a fine of Five Hundred ($500.00) Dollars consecutive to the other sentences. These last two sentences are being appealed to the Supreme Court of South Carolina.

The decision of the Supreme Court of South Carolina affirming the conviction was filed. The Petitioner was arrested and began service of his sentence on July 9, 1971. On July 15, 1971, the attorneys for Petitioner filed a Petition for Rehearing with the Supreme Court of South Carolina and additionally filed a Motion for Bond pending determination of a Petition for Certiorari to be filed with the Supreme Court of the United States. On July 26, 1971, the Supreme Court of South Carolina by order denied the Petition for Rehearing and denied bond pending certiorari.

Petitioner has not committed as to whether he intends to seek certiorari in the Supreme Court of the United States. Although seeking certiorari is not required before State remedies can be said to have been exhausted, Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L. Ed.2d 837 (1963), it would be unseemly for a lower federal court to consider the merits at the same time that Supreme Court review was being sought in the same case. If he was seeking certiorari it would appear that the proper court before which he should move for bail would be the Supreme Court of the United States.²

This court must, however, act on the Petition which is presently before it and the issue which is before this court is whether or not the Petitioner should be released on bail pending a hearing in this court on the merits of his allegations and a final determination thereof. This court has no question in its mind as to its jurisdiction in the matter if after considering questions of comity it decides to exercise its concurrent jurisdiction.

At common law, courts had the inherent power to grant bail. This authority was exercised in habeas corpus cases pending decision on the merits. The Federal judiciary has consistently recognized that at common law this inherent power existed; but, for some time there was a severe split as to whether this power existed in the Federal courts in habeas corpus proceedings. The cases since about 1955 have been reflecting more the belief that this power does exist in the federal judiciary. This court concludes that the federal courts have the power to grant bail in post conviction proceedings. The determination is when that power can or should be exercised. The most solid conclusion on this point would seem to be that this power derives as a matter for the exercise of the discretionary judgment of the judicial officer involved, but that power ought to be carefully exercised.

In a number of cases it has been held or recognized, under the particular circumstance involved, that the court had the power, pending the determination of a habeas corpus proceeding on the merits, to admit the Petitioner to bail. In 1871, the United States Supreme Court, in the case of Barth v. Clise (1871), 12 Wall 400, 20 L.Ed. 393, had this to say:

By the common law, upon the return of a writ of habeas corpus and the production of the body of the party suing it out, the authority under which the original commitment took place is superseded. After that time, and until the case is finally disposed of, the safekeeping of the prisoner is entirely under the control and direction of the court to which the return is made. The prisoner is detained, not under the original commitment, but under the authority of the writ of habeas corpus. Pending the hearing he may be bailed de die in diem, or be remanded to the jail whence he came, or be committed to any other suitable place of confinement under the control of the court. He may be brought before the court from time to time by its order until it is determined whether he shall be discharged or absolutely remanded. (See also In re Kaine (1852) 14 How. 103, 133-134, 14 L. Ed. 345; 39 Am.Jur.2d, Habeas Corpus, § 145, 56 A.L.R.2d 668, 673).

As one court later put it, "once this concept is recognized, it becomes clear that the particular interim disposition which the court makes of the body is a judicial function of that court to be discharged, absent any controlling statute, in the exercise of judicial discretion, all relevant circumstances considered." Johnston v. Marsh, 227 F.2d 528, 532 (3 Cir. 1955). And this concept was apparently fully accepted in South Carolina at an early date, as is reflected in the case of Ex parte Massee, a habeas corpus case involving an extradition proceeding. Citing Barth v. Clise and In re Kaine, supra, Mr. Justice Woods stated as fact that "the general rule in habeas corpus proceedings is well established, that pending a final hearing the judge or court may admit to bail." 95 S.C. 315, 79 S.E. 97 (1913). The rule stated by the court varied for extradition cases.

Citing Johnston v. Marsh, supra, among other cases, a United States District Court for New York states that "while the question may not be wholly free from doubt, the court concludes that there is power to grant such interim relief." (Referring...