McIntosh v. Com.

• Decision Date: 24 May 1963
• Citation: 368 S.W.2d 331
• Parties: William McINTOSH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 331

368 S.W.2d 331

William McINTOSH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

Court of Appeals of Kentucky.

May 24, 1963.

Thomas D. Shumate, Shumate, Shumate & Flaherty, Richmond, for appellant.

John B. Breckinridge, Atty. Gen., Ronald M. Sullivan, Asst. Atty. Gen., for appellee.

PALMORE, Judge.

The appellant, William McIntosh, was convicted by the Madison Circuit Court in 1958 as a habitual criminal and was sentenced to life imprisonment. KRS 431.190 (third felony). In 1962 he moved that court to set aside the judgment pursuant to CR 60.02. After a hearing at which he was represented by counsel the court entered findings of fact, conclusions of law and a judgment overruling the motion. This appeal followed.

The alleged grounds for relief, in the order in which we shall discuss them, were that (1) the indictment was invalid, (2) appellant was tried without benefit of the psychiatric report required by KRS 203.340, (3) sentence was pronounced and the judgment of conviction was entered out of term, (4) appellant was deprived of the assistance of counsel at the time of sentencing, and (5) appellant, an indigent, was deprived of the assistance of counsel to take an appeal. It is contended that each of these claimed irregularities was such as to render the judgment void upon one or more theories of state and federal constitutional infringement.

1. The grand jurors impaneled at the May term (1958) of the Madison Circuit Court had served and been paid for one day prior to May 26, 1958, on which date an order was entered directing them to reconvene on May 27, 1958, for the handling of further business. The clerk's recollection was that they had been excused after completion in one day of all the business before the grand jury, but there was no record of a formal discharge from further service. On May 27, 1958, the grand jury reconvened and, two of its number being unable to serve, two replacement jurors were impaneled as permitted by KRS 29.215. Later in the same day several indictments, including the one now in question, were returned and the grand jury was discharged by an order duly entered of record.

KRS 29.245(s) provides that the grand jury may remain in session six days at any term of court and that its session may be extended up to nine additional days. As a court must speak through its records, it is our view that the grand jury for the May, 1958 term of the Madison Circuit Court had not been discharged prior to May 27. But even if it had, as it had not held sessions in excess of the time authorized by KRS 29.245(1) the court was authorized to call it back at any time before expiration of the term. There is no good reason to construe the statute as meaning that there can be no extension after a discharge. In this respect the discharge of a grand jury before the end of the term is merely tentative. So, the indictment was proper.

2. Appellant was tried before a jury on October 13, 1958, the court having overruled a motion for continuance on the ground that the psychiatric examination required by KRS 203.340 had not been made. On October 16, 1958, Dr. R. H. Hayes, district psychiatrist for the Department of Mental Health, visited him at the Madison County jail, and on the basis of this interview sent to the trial judge a letter under date of October 31, 1958, reporting as follows:

'I examined Mr. William McIntosh on October 16, 1958, and at that time found no evidence of insanity in him. At that time he knew right from wrong, and was considered by me at that time to be capable of acting upon this information.

'In view of the fact that he was discharged from the Armed Services on 4 July 1944 with a certificate of disability discharge, Paragraph 11, I would feel that more information was needed before I could give you a complete report on this man, as there is no question of medical disability. I have written on October 24, 1958 to the Veterans Administration for information regarding this man's discharge and have not received any information from them as of this date. Whether or not their report would influence my decision as to his present condition I am not sure. However, I do consider him capable of being responsible for his present conduct and actions.'

Following the trial and verdict of guilty appellant filed motion and grounds for new trial. The record shows that the trial court, knowing of the psychiatrist's visit, delayed ruling on this motion until receipt of the psychiatrist's report on or about November 4, 1958, on which date the motion was overruled, a judgment of conviction was entered, and appellant was sentenced accordingly.

Despite the mandatory terminology of KRS 203.340, this court has held that non-compliance does not void the judgment. Mercer v. Commonwealth, Ky. 1961, 346 S.W.2d 761. Nevertheless, if the defendant is indigent, as he was in this case, and KRS 203.340 affords the only real avenue by which he can have the benefit of a psychiatric examination, we recognize that a denial of it might well raise a question under the Equal Protection Clause of the 14th Amendment. But when the defendant does receive the examination before final judgment is entered, and it reveals nothing that could have been of any consequence to his trial or defense, we think there has been a substantial compliance with the statute. Cf. Harrod v. Commonwealth, 1950, 311 Ky. 810, 226 S.W.2d 4.

In deferring action on the motion for new trial the court tacitly recognized that if the report should suggest any basis for an insanity defense, or indicate that the appellant had been mentally incapable of standing trial, the motion would have to be sustained. As it happened, however, the report made it abundantly clear that its availability prior to or at the time of the trial would have been of no benefit whatever in appellant's defense. Hence there has been no violation of his rights.

3. At the time the psychiatrist's report was received the October 1958 term of the Madison Circuit Court had expired. November 4, 1958, the day on which the order overruling the motion for new trial and the judgment were entered, was out of term. However, KRS 23.150 specifically authorized the court 'to make or direct in vacation or term time at his chambers, at the circuit clerk's office or at any other place in any county in the district, any order, rule, or judgment in any proceeding on the criminal docket, upon reasonable notice to the parties, except where trial by jury is called for or ordered by the court.' We find no error in this respect.

4. Sections 285 and 286 of the Code of Criminal Practice, which were in force in 1958, ¹ required that a defendant found guilty of a felony be brought into court, informed of the nature of the indictment, his plea and the verdict thereon, and asked if he had any legal cause to show why judgment should not be rendered against him; and that judgment be rendered in his presence. In this case it appears that all of these things were done, albeit since court was not in session the ceremony took place in the office of the circuit court clerk, which we do not consider to have been improper. However, neither of appellant's assigned counsel, who had represented him ably in the preparation and conduct of his trial and the preservation of his rights by motion and grounds for new trial, was present on this occasion. Whether their presence was requested by appellant is not disclosed by the record.

The right to counsel in criminal prosecutions in this state is secured by Const. § 11. It is guaranteed also by the Due Process Clause of the 14th Amendment. Gideon v. Wainwright, 1963, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. The defendant must not be denied a reasonable opportunity to have counsel 'at every step in the progress of the trial.' Temple v. Commonwealth, 1879, 77 Ky. (14 Bush) 769, 29 Am.Rep. 442; Wilcher v. Commonwealth, 1944, 297 Ky. 36, 178 S.W.2d 949; Carver v. Commonwealth, Ky.1953, 256 S.W.2d 375, 49 A.L.R.2d 616; Powell v. Commonwealth, Ky.1961, 346 S.W.2d 731. In Wilcher, Carver and Powell it was held directly that the return of the verdict by the jury is a vital step at which the defendant is constitutionally entitled to have counsel present. Whether the same right exists at the pronouncement of judgment by the court seems not to have been determined in this state, though it has been variously decided in other jurisdictions. ²

Kentucky is one of the few states in which the degree of punishment is required to be fixed (within statutory limits) by the jury rather than the court, ³ and this, we think, is the most significant single circumstance bearing on the question of what fundamental fairness demands at the stage of formal sentencing. When the court has no discretion with respect to assessing punishment, the allocution and pronouncement of sentence are more ceremony than substance. In this state 'it is a common practice to enter the judgment on the order book and later to have the defendant brought into court and sentenced formally.' Lovelace v. Commonwealth, 1941, 285 Ky. 326, 147 S.W.2d 1029, 1033. The substance is what goes in the book. It is not necessary even that the defendant himself be present for that. If there are any reasons why judgment should not be rendered in accordance with the verdict, other than mental incapacity that has intervened in the interim, the defendant has had ample opportunity to present them by motion for new trial or for probation. ⁴ We hold that the allocution and formal pronouncement of sentence in the defendant's presence were not constitutional rights, but statutory procedures only. ⁵ From a constitutional standpoint, it was sufficient that he had due and timely notice of the entry and import of the judgment and a reasonable opportunity to question it by appropriate motion.

The conclusion to be drawn from what we have said in this respect is that if the appellant was prejudiced by the manner in which the sentence was...