Lowe v. United States
Decision Date | 24 October 1969 |
Docket Number | No. 17422.,17422. |
Citation | 418 F.2d 100 |
Parties | Theodore E. LOWE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
Court | U.S. Court of Appeals — Seventh Circuit |
Robert E. Poynter, Bennett & Boehning, Lafayette, Ind., for appellant.
Alfred W. Moellering, U. S. Atty., Fort Wayne, Ind., for appellee.
Before CASTLE, Chief Judge, KNOCH, Senior Circuit Judge, and KILEY, Circuit Judge.
Petitioner appeals from the denial by the district court, after an evidentiary hearing, of his motion to vacate sentence filed pursuant to 28 U.S.C. § 2255. Petitioner and his co-defendant, Donald Ray Bennett, were charged by information with assaulting and putting in jeopardy the lives of three people while robbing a national bank in violation of 18 U.S.C. § 2113(d). At their arraignment both petitioner and his co-defendant waived, by signing the appropriate forms, their right to require the Government to obtain an indictment and their right to counsel, and entered pleas of guilty. At sentencing, petitioner and his co-defendant again were offered and waived counsel. This court recently ruled, upon co-defendant Bennett's appeal from the denial of his § 2255 motion, that the warnings given by the district court in the arraignment and sentencing hearings were legally adequate and that the waivers were valid. Bennett v. United States, 413 F.2d 237 (7th Cir. July 23, 1969).
Regarding the waiver of the right to counsel, we stated (413 F.2d at 243):
Petitioner Lowe does not quarrel with our holding in Bennett, which was published subsequent to the filing of his brief, but rather contends that the Fifth and Sixth Amendments to the Constitution require that "an accused consult with counsel, court-appointed if necessary and whether requested or not, when he is charged with a felony which carries a potential term of imprisonment of twenty-five (25) years before the accused can intelligently and understandingly waive his right to counsel."1 Petitioner argues that in light of the seriousness of the charge, the potential 25 year sentence,2 the complexity of the statute under which he was charged, his age and education,3 his inability to defend himself at trial, and "his very limited understanding of the function and duty of a lawyer appointed to represent the petitioner,"4 his waiver of counsel should be held ineffective and his conviction void.
We agree with petitioner that an arraignment is a critical stage of the criminal proceedings, see Rule 44 (a), Fed.Rules Crim.Proc., Massiah v. United States, 377 U.S. 201, 205, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); Davis v. United States, 376 F.2d 535, 537 (5th Cir. 1967), United States v. Washington, 341 F.2d 277, 284, 9 A.L.R. 3d 448 (3rd Cir. 1965), cert. den., DeGregory v. United States, 382 U.S. 850, 86 S.Ct. 96, 15 L.Ed.2d 89 and that a criminal defendant need not always request an attorney in order to be accorded his right to representation by counsel. See Carnley v. Cochran, 369 U.S. 506, 515, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962); Rice v. Olson, 324 U.S. 786, 788, 65 S.Ct. 989, 89 L.Ed. 1367 (1945). In Rice, the court reversed the conviction although the defendant did not request an attorney, where the trial court did not advise him of his right to make such a request. However, when the trial court, as in the instant case, repeatedly advises a defendant of his right to an attorney, court-appointed if necessary, and the defendant, as in the instant case, repeatedly and specifically declines to exercise this right, we are of the opinion that the Constitutional safeguards have been satisfied. We disagree with petitioner's contention that a judge cannot adequately advise a defendant of his right to counsel. On the contrary, the cases compel the trial judge to discharge this important function. See Von Moltke v. Gillies, 332 U.S. 708, 723-724, 68 S.Ct. 316, 92 L.Ed. 309 (1948); Carnley v. Cochran, supra, 369 U.S. at 516, 82 S.Ct. 884.
The true import of petitioner's argument is contained in the following statement in his brief: We reject this argument on two grounds.
First, to compel a criminal defendant to be represented by counsel in all cases would conflict with his statutory and constitutional right to conduct and manage his...
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