Mathis v. State of North Carolina

• Decision Date: 04 April 1967
• Docket Number: No. C-255-G-66.,C-255-G-66.
• Citation: 266 F. Supp. 841
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Charles S. MATHIS, Jr., Petitioner, v. STATE OF NORTH CAROLINA, Respondent.

266 F. Supp. 841

Charles S. MATHIS, Jr., Petitioner, v. STATE OF NORTH CAROLINA, Respondent.

No. C-255-G-66.

United States District Court M. D. North Carolina, Greensboro Division.

April 4, 1967.

W. Douglas Parrish, Winston-Salem, N. C., for petitioner.

Theodore C. Brown, Jr., Raleigh, N. C., for respondent.

MEMORANDUM OPINION AND ORDER

GORDON, District Judge.

The petitioner, Charles S. Mathis, Jr., a prisoner of the State of North Carolina, has filed with this Court a petition for a writ of habeas corpus pursuant to the provisions of Title 28, U.S.C. § 2254, and accompanied the petition with an affidavit of poverty. The petition was filed pro se and an order has been entered permitting the petition to be filed without the prepayment of costs or fees or security therefor. The petitioner contends his constitutional rights were deprived in that:

(1) He was denied effective assistance of counsel.

(2) He was given an illegal and excessive sentence.

(3) G.S. § 14-107 is unconstitutional in that all its provisions are not uniformly applied throughout the state.

Petitioner was arrested on April 28, 1965, for issuing worthless checks and placed in the Montgomery County Jail. A preliminary hearing was held May 4, 1965, and at that time six warrants were served on the petitioner charging him with obtaining property under false pretense in violation of G.S. § 14-100. Probable cause was found, and petitioner was bound over for trial in the Superior Court of Montgomery County. The cases came to trial at the July, 1965, Term of Superior Court of Montgomery County which convened on July 12, 1965, Judge Robert M. Gambill presiding. On that day the grand jury returned six indictments against the petitioner, two being forgery, under G.S. § 14-119, and four being false pretense under G.S. § 14-100. Also on January 12, 1965, the court appointed Charles Dorsett, an experienced member of the Montgomery County Bar, to represent the petitioner at his trial. The next day, July 13, 1966, petitioner, through his counsel, entered a plea of guilty to six counts of issuing worthless checks in violation of G.S. § 14-107 which the state, with the permission of the court, accepted. Petitioner was sentenced to two years on three of the counts, the sentences to run consecutively; the remaining three counts were consolidated, and petitioner was given a two year sentence suspended for five years.

Petitioner filed notice of appeal later that day which was withdrawn on the next day, July 14, 1965. Petitioner filed a petition for a writ of habeas corpus on September 29, 1965, which was denied by Judge Robert M. Gambill in an order dated October 4, 1965.

Petitioner next petitioned the United States District Court for the Western District of North Carolina seeking a writ of habeas corpus by a petition dated January 19, 1966. The petition was dismissed by Judge J. Braxton Craven on February 11, 1966, because the petitioner had not exhausted his state remedies.

So petitioner went back into the state court to exhaust them, filing a petition for a post-conviction hearing on March 5, 1966. Each of these three petitions contained substantially the same allegations as the petition presently under consideration. Garland S. Garriss was initially appointed at the July, 1966, Term of the Criminal Court of Montgomery County to represent the petitioner at his post-conviction hearing; however, due to illness, he was replaced as counsel by S. H. McCall, Jr., in an order dated September 15, 1966. The hearing was conducted before Judge Walter E. Johnston, Jr., on October 17, 1966, in Concord, North Carolina. A judgment denying the relief requested was entered by Judge Johnston the same day. Petitioner filed an application for a writ of certiorari to the North Carolina Supreme Court on November 4, 1966, which was denied November 29, 1966.

Having exhausted his state court remedies, a petition for a writ of habeas corpus was filed once more in the United States District Court for the Western District of North Carolina on December 17, 1966. On December 23, 1966, pursuant to the provisions of Title 28, U.S.C. § 2241(d), the proceedings were transferred to this Court since the petitioner had originally been tried and sentenced by a state court in this district.

A plenary hearing was held in Winston-Salem, North Carolina, on February 23, 1967. Petitioner was represented by W. Douglas Parrish, an able and experienced member of the Forsyth County Bar; and the following persons testified: Charles M. Johnson, Clerk of Court for Montgomery County; Charles H. Dorsett, counsel for petitioner at his trial; and petitioner.

At the hearing the contentions of both the petitioner and the state were fully developed. In essence the petitioner testified to the following:

He was placed in custody by the Montgomery County authorities at the Cleveland County Jail on April 28, 1965, on charges of issuing worthless checks. He repeatedly asked for counsel, but these requests were denied until his trial. On Monday, July 12, 1965, Judge Gambill inquired if he desired counsel and he was then examined as to his indigency. The next morning, July 13, 1965, about 45 minutes before the trial commenced, he learned that Charles Dorsett had been appointed to represent him.

A hurried conference lasting about thirty minutes transpired before the trial. During this discussion, he states that his counsel told him that the state would probably accept a guilty plea to issuing worthless checks under G.S. 14-107, and that the maximum punishment was thirty days for each count. With this in mind, he plead guilty to six counts of issuing worthless checks. After the judge pronounced sentence and gave him two years on three of the counts, he, in his own words, "blowed a little hot." His protestations were cut short when the judge threatened him with contempt charges.

Further cross and direct examination brought out testimony from the defendant that:

He had read the statute in question, G.S. 14-107, a few months before while in Craggy Prison Camp near Asheville, and had been previously convicted under the same statute in Caldwell and McDowell Counties. He felt he was guilty of issuing worthless checks, not false pretense, and was willing to plead guilty to that charge if the state would accept such a plea. Neither the judge nor any court officials stated that thirty days was the maximum punishment for violation of G.S. 14-107 in Montgomery County. Moreover, the judge did not read the statute aloud to him in open court before passing sentence, even though the Clerk's minutes might reflect otherwise.¹

He was so upset by the sentence that he had no opportunity to talk to his counsel after the sentence had been passed. He made known his desire to appeal that afternoon through the jailer, but withdrew the appeal the next day after the same jailer told him it would take the appeal twelve or fourteen months to go through. He further stated that his only complaint about the adequacy of his counsel was that he had been misinformed as to the maximum punishment possible. He said that additional time for preparation by his counsel would not have made any difference.

On the other side of the coin, Charles Dorsett testified to the following for the state:

He was appointed to represent petitioner on Monday, July 12, 1965, and held an initial conference with the petitioner that very day. At this first conference, he explained the false pretense charge and advised the petitioner that the facts sounded more like worthless checks than false pretense. He explained that false pretense was a felony and that issuing worthless checks was a misdemeanor. At this time petitioner contended that the maximum punishment for issuing worthless checks was thirty days. So he read and explained the statute to petitioner and emphasized that in Montgomery County the punishment could run up to two years. To this petitioner stated that he had no defense and wanted to plead guilty to issuing worthless checks if the charge could be reduced from false pretense. At the trial he vaguely recalled that petitioner raised a question about the penalty and the Judge read the statute to the petitioner before he was sentenced.

After a close examination of the record and the testimony at the plenary hearing, the Court now denies the relief requested for the reasons hereinafter stated.

The petitioner first contends that his court-appointed counsel did not have sufficient time for pretrial preparation due to late appointment, resulting in the denial of his right to effective assistance of counsel. The exact time of the appointment is in dispute, but the more reasonable finding is that counsel was appointed on July 12, 1965, the day before petitioner's trial. This fact is corroborated both by Judge Gambill's order dated July 12, 1965, appointing Charles Dorsett as counsel, and the testimony of petitioner's counsel at the plenary hearing. Even considering petitioner's testimony as undenied, the fact that counsel is appointed the day of the trial does not on its face deny petitioner the effective assistance of counsel. As was stated in United States v. Ray, 4 Cir., 351 F.2d 554 (1965):

"There can be no predetermination of the length of time needed by court-appointed counsel to prepare for trial Since the requirements will vary greatly and what may be reasonable time in one case could be quite unreasonable in another." (351 F.2d at 555)

Moreover, petitioner flatly stated at the plenary hearing that only in misinforming petitioner as to the maximum punishment was counsel ineffective, and that additional time for preparation would not have substantially affected the caliber of his counsel's assistance. The petitioner would certainly not be bound by his own admission if this Court felt that there had been a showing of ineffective assistance of counsel; however, that is not the case. Here Mr. Dorsett, an experienced member of the Bar, provided the...