Kennedy v. United States, 17219.
| Decision Date | 17 December 1958 |
| Docket Number | No. 17219.,17219. |
| Parties | Joseph Morris KENNEDY, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Shelby Myrick, Sr., Shelby Myrick, Jr., Savannah, Ga., for appellant.
William C. Calhoun, U. S. Atty., Augusta, Ga., for appellee.
Before HUTCHESON, Chief Judge, and TUTTLE and JONES, Circuit Judges.
This is the second appearance of this case here. Kennedy filed his Section 2255 motion for vacation of his conviction and sentence to 40 years on four counts of violating the bank robbery statute. The trial court dismissed the motion without a hearing. Kennedy appealed. Because the record did not "conclusively show that the prisoner was entitled to no relief" we reversed and remanded for a hearing, Kennedy v. United States, 5 Cir., 249 F.2d 257.
The trial court then appointed able and energetic counsel to represent Kennedy on the hearing of his Section 2255 motion. The record now before us is full and complete, not only as to the original proceedings leading up to the entry of the plea of guilty and the subsequent sentence, but also as to the hearing itself. Counsel was afforded adequate opportunity to prove any facts bearing on the basic claim asserted by Kennedy — that his plea of guilty entered to all four counts of the indictment was void because it was entered under circumstances which denied him effective representation by counsel.
The circumstances proved on the hearing are: Kennedy admitted committing the acts on which the indictments were based; that is, he entered a bank in Savannah and under the threat of firearms caused an employee of the bank to give him $5,000 and then forced the employee to accompany him to a parked automobile and drive it away for several blocks, where he was released; he made good his escape to California, but soon thereafter he voluntarily surrendered and gave a confession for the purpose of being returned to Savannah, Georgia, for trial; in the meantime his family in Savannah engaged a lawyer to represent him and this lawyer stated to the court, approximately a week before Kennedy returned to Savannah and thus without any consultation with him, that he would plead guilty; Kennedy was returned the evening before the case was to be disposed of on the calendar. Counsel appeared with Kennedy in court and requested postponement on the ground that he had had only twenty minutes before court to consult with his client. Pointing out that one count, the so-called kidnapping count, could result in the death penalty if so determined by the jury, counsel requested additional time. The court, reminding counsel that he had previously indicated his intention to plead guilty and that if he now entered his plea the court would set over the trial of the punishment issue on the kidnapping count, suggested this course of action, stating, however, that it was not requiring counsel to enter a plea of guilty.
During this colloquy the accused sat beside his counsel and addressed neither the court nor counsel. He and his counsel testified on the hearing of this motion that they had not discussed the several counts or the fact that one of them involved a possible death penalty. There was evidence to the effect that the appellant did know by this time that such an issue was involved. Without a formal arraignment and without asking the accused whether he knew the nature of the charges against him, the court thereupon, having suggested that counsel enter the plea he had previously announced it his purpose to enter, permitted counsel to sign a waiver of arraignment and a plea of guilty to all four counts.
When this was done the court then announced postponement of the jury trial on degree of punishment to a day a week later agreed on by counsel.
Thereafter, on the day following entry of the plea, other counsel was employed to assist in the trial of the jury issue. Before the jury trial it is clear that Kennedy knew that the pleas entered on his behalf included one involving a possible death penalty. Neither counsel made any motion to withdraw the plea. The jury found against the death penalty. Thereupon the court sentenced Kennedy to a total term of 40 years.
The appellant undertook to clear up on the trial below...
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