Deese v. United States

Decision Date06 September 1969
Docket NumberCiv. A. No. 69-299.
Citation303 F. Supp. 619
PartiesJames Woodrow DEESE, Movant, v. UNITED STATES of America, Respondent.
CourtU.S. District Court — District of South Carolina

Joseph E. Hines, Jr., Spartanburg, S. C., court-appointed attorney for movant.

Joseph O. Rogers, Jr., U. S. Atty., Marvin L. Smith, Asst. U. S. Atty., Columbia, S. C., for respondent.

OPINION AND ORDER

DONALD RUSSELL, District Judge.

This proceeding, under Section 2255, 28 U.S.C., by a federal petitioner, serving a twenty-three year sentence imposed by this Court at Columbia, on October 26, 1959, following a guilty plea to a charge of armed bank robbery (Sections 2113(a) and 2113(d), 18 U.S.C.) seeks the vacation of a plea of guilty as entered involuntarily and without his understanding or consent.

Counsel was appointed for him and a full evidentiary hearing had on August 25, 1969, in Spartanburg, South Carolina.1

At the time of his arraignment on this charge, the petitioner was already no stranger to the criminal law. Beginning in 1948, he has plead guilty and served time for the commission of some seven crimes of high and aggravated nature. Actually, he had been released from prison only four months prior to the commission of the crime to which he plead guilty in the prosecution herein involved.

He has not denied at any time that, using a sawed-off shotgun, he, along with confederates, did rob the Bank of Kershaw at Kershaw, South Carolina, as charged in the indictment to which his plea was had. After the robbery, he sought to escape in a car but, in some way, wrecked it. He then endeavored to stop a passing motorist and when the motorist, after first slowing down, failed to stop, he shot out the back window of the car.

After he was apprehended, he gave a voluntary statement to the FBI, admitting freely and fully his guilt. In such confession, he explained that he had been drinking beer and vodka before the robbery. His confederates were arraigned and plead guilty first: One was given a prison sentence of eighteen (18) years and the other one, a juvenile, was committed to the custody of the Attorney General until his twenty-first birthday. Prior to his arraignment, counsel was appointed for petitioner. Upon his arraignment, he along with his appointed counsel, requested that, before he was called on to plead, he be placed under psychiatric observation to determine whether he was subject to periods of temporary insanity and mental irresponsibility. As a predicate for such request, the petitioner stated that he had begun having "periods of black-outs since 1955". He claimed a lack of memory during these "black-outs". With particular reference to the robbery charged in his indictment he said he had "a recollection of participating in the bank robbery, your Honor, but it is more like I was a spectator than I was an actual participant in the crime". He subsequently described his condition as "more like a dream" and stated it had begun on "a Friday before this occurred on Thursday". At no time did he refer to benzedrine or attribute his condition to any form of drug. His counsel based his application for a psychiatric examination on the benefit it would provide in enabling him to know how to advise the petitioner in his rights and particularly on his plea to the indictment. Acceding to this request, the Court ordered the petitioner given a thorough psychiatric and mental examination. Such examination continued over a period of observation for some forty days.

Almost five months later, the petitioner was brought again before the Court to enter his plea. At this time the District Attorney called to the Court's attention the favorable report on the mental examination of the petitioner. The Clerk thereupon inquired of petitioner's counsel whether petitioner was "familiar with the charges contained in this indictment". Receiving an affirmative reply and being advised that the petitioner waived formal arraignment, the Clerk asked how the petitioner plead. Counsel answered, "He pleads guilty as charged".

A considerable colloquy between the Court and petitioner's counsel, in which petitioner participated, followed. In the course of that colloquy, during all of which petitioner was an interested spectator and sometime participant, petitioner's attorney stated that the petitioner had told him that for "a long period of time" he had taken benzedrine tablets "but", he had discontinued such habit "for some time before this happened, but he thinks that may have had something to do with his mental condition at the time (of the crime)". His attorney added that, "However, he (the petitioner) does recognize that under the eyes of the law that he is guilty. And, he is pleading guilty as such to the charge before the Court. * * * He is charged with a very bad crime. We know that — And I have told him that he is going to get a sentence, which he knows. And, he knows that he will get somewhat of a stiff sentence." It then developed that the petitioner was wanted both in Oregon and South Carolina for parole violations, and the petitioner himself expressed concern "that if a person had a detainer against him — I mean, if they were wanted in another place — that they became ineligible" for parole. For this reason, leniency in sentence was requested for the petitioner, whose qualifications for parole, because of the detainers, would be far less favorable than that of his confederate who had received, as previously pointed out, an eighteen year sentence. After comparing the relative responsibility of the petitioner and his confederate for the crime and being advised that the petitioner, during the robbery, had hit one of the persons in the bank with "a shotgun" and had "punched another in the neck", and, following the robbery, had "shot the back glass" out of a car that would not stop to pick him up, the Court indicated that he felt that the petitioner was more involved than his confederate, who "didn't do anything except gather the money". However, the Court evidenced a strong and compassionate disposition to fashion his sentence so that the detainers outstanding against the petitioner might not deter him from securing favorable parole action at such time as the Board of Parole deemed it appropriate. Sentence was thereafter imposed with such provision. Following the sentence, the petitioner was transferred to the Atlanta prison where he has been since.

Following his transfer to Atlanta, the petitioner filed two earlier petitions for modifications of his sentence with this Court. In the first, he sought credit for prison time prior to sentence. The second attacked the preference in sentence given his confederate, contending that the difference in their sentences represented a denial of "the equal protection of the laws". In neither of those petitions did the petitioner allege that his plea of guilty was involuntary or that his attorney had failed in any particular to state accurately his (the petitioner's) position at his sentencing.

The petitioner now asserts that he was under the influence of benzedrine when he was sentenced, that, irrespective of what his attorney stated to the Court, he did not understand he was pleading guilty or so intend,2 and that, on the contrary, he intended to plead not guilty because of temporary mental irresponsibility. He makes no contention that his plea was coerced in any way. At the evidentiary hearing he raised the point that there was not compliance with Rule 11, Rules of Criminal Procedure, in the acceptance of his plea.3

The two contentions really present largely related factual issues. Whether under Rule 11, as it existed in 1959, or under a claim of mental incompetency to stand trial, the test of the validity of petitioner's plea is largely alike; it turns, in either case, on the capacity of the defendant to understand intelligently the proceedings and the charges against him. Thus, under Rule 11, as it existed in 1959, the Court was charged with the duty of ascertaining that a defendant's guilty plea was made voluntarily4 with an intelligent understanding of the nature of the charge against him.5 In similar terms, the test of when a defendant has the competency to stand trial, is "`whether he (the defendant) has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.'" Dusky v. United States (1960) 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824. In short, under one principle, the test is: Did the defendant have the competency to understand? Under the other, the test is: Did he understand? If either he lacked such competency or did not intelligently understand the proceedings resulting in his plea of guilty, he would be entitled to relief under Section 2255. United States v. McNicholas (C.C.A. 4, 1962) 298 F.2d 914, 916, cert. den. 369 U.S. 878, 82 S.Ct. 1150, 8 L.Ed.2d 280; Nelms v. United States (C.C.A. 4, 1963) 318 F.2d 150, 153.

I am convinced the record abundantly establishes, and I do find, that the petitioner, in entering his plea of guilty herein, did have the mental competency to enter such plea, did fully and intelligently understand the charges against him, and did enter his plea voluntarily.

Petitioner's claim of incompetency is founded upon the alleged use by him on the day of sentencing of benzedrine. While the fact that one has been subjected to a drug is a factor to be considered in determining whether he is competent to stand trial under the Dusky test,6 such fact does not "per se render(s) a defendant incompetent to stand trial"; the issue is one still to be resolved upon the record whether, the defendant, despite such drug, still had the competency required under Dusky. United States v. Tom (C.C.A. 2, 1965) 340 F.2d 127, motion for leave to file petition for writ of habeas corpus denied, 382 U.S. 912, 86 S.Ct. 303, 15 L.Ed.2d 236; ...

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