Rastrom v. Robbins

• Decision Date: 17 November 1970
• Docket Number: Civ. No. 11-119.
• Court: U.S. District Court — District of Maine
• Parties: John C. RASTROM, Petitioner, v. Allan L. ROBBINS, Warden, Maine State Prison, Respondent.

319 F. Supp. 1090

John C. RASTROM, Petitioner, v. Allan L. ROBBINS, Warden, Maine State Prison, Respondent.

Civ. No. 11-119.

United States District Court, D. Maine, S. D.

November 17, 1970.

Harold E. Woodsum, Hugh G. E. MacMahon, Portland, Me., for petitioner.

John W. Benoit, Asst. Atty. Gen., Augusta, Me., for respondent.

OPINION AND ORDER OF THE COURT

GIGNOUX, District Judge.

The petitioner, John C. Rastrom, was convicted by a jury at the February 1969 Term of the Cumberland County, Maine Superior Court of the crime of uttering a forged check, in violation of 17 M.R.S.A. § 1501. He was sentenced to one to three years imprisonment in the Maine State Prison, and is presently in respondent's custody serving that sentence. On appeal, the Supreme Judicial Court of Maine, Chief Justice Williamson dissenting, affirmed petitioner's conviction. State v. Rastrom, 261 A.2d 245 (Me.1970). He has now filed in this Court a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 et seq. The sole issue presented is whether petitioner was denied his Sixth and Fourteenth Amendment right to the effective assistance of counsel by the late appointment of his trial counsel and the denial of his counsel's request for a continuance to permit a proper preparation of the defense. The majority of the Maine Court thought not. This Court, in agreement with Chief Justice Williamson, thinks otherwise.

Petitioner's appeal was presented to the Maine Court upon an agreed statement (see Me.R.Civ.P. 76), which constitutes the record before this Court. The agreed statement discloses the following relevant facts: On October 1, 1968, petitioner was arraigned in the State District Court on a criminal complaint for uttering a forged check in the amount of $49.50. He was found to be indigent, and counsel was appointed to represent him. While awaiting grand jury consideration in the Superior Court, petitioner dismissed his assigned counsel, declared that no lawyer from Cumberland County would be acceptable to him, and indicated his intention to conduct his defense without counsel. Petitioner was indicted on January 13, 1969, and at the request of a Superior Court justice, a second attorney visited petitioner in the county jail on February 13 and again on February 17, 1969. This attorney advised petitioner of his right to assigned counsel, but petitioner remained firm in his desire to represent himself.

Petitioner's case was called for trial on February 17, 1969. At 10 a.m. on that day, petitioner appeared in court and restated his intention to proceed without counsel. The presiding justice advised petitioner of the wisdom of accepting counsel. Petitioner finally agreed and accepted the attorney who had visited him in jail to advise him of his rights. The attorney then requested a continuance to prepare for trial, stating that he was completely ignorant of the specifics of the case, since his conversations with petitioner had been limited to the subject of his right to counsel. The court granted a continuance until 2 p.m. that same afternoon and instructed the county attorney to make his case file available to defense counsel. Counsel had also been present when the county attorney interviewed two of the State's witnesses earlier in the morning.

At 2 p.m., the court reconvened, and petitioner's counsel asked for a further continuance "to make an independent investigation of the facts, to research the law, to consult with his client, to confer, and to reflect." The court denied this request and ordered counsel to proceed to trial. The case was then tried before a jury, and petitioner was found guilty and sentenced. Thereafter, petitioner's counsel filed a timely motion for a new trial, which was denied. At the hearing on this motion, the court was informed that petitioner's counsel had no prior criminal practice or trial experience. In his supporting affidavit, counsel also advised the court that his two conferences with petitioner prior to trial had been limited to a discussion of his right to counsel; that he had been completely unfamiliar with the facts of the case prior to his appointment at 10 a.m. on the day of the trial; that petitioner's behavior and demeanor at the first conference had been "bizarre"; that he had felt a second meeting was necessary because he seriously doubted petitioner's competence to make decisions regarding counsel; that his doubts had been reinforced at the second conference, at which petitioner's behavior was "manic"; and that he had been concerned as to petitioner's mental competence to stand trial, a concern which he had related to the trial judge at a conference, at which the county attorney was present, in the judge's chambers shortly before 10 a.m. on the day of the trial.

The trial record was not made a part of the record on petitioner's appeal to the Maine Supreme Judicial Court. The Maine Court held that the burden was on the petitioner to show that the four-hour interval between the appointment of counsel and the start of trial had been prejudicial. Since the trial transcript was not before the Court, petitioner could not point to any specific parts of the trial where he had been prejudiced. In the absence of such a showing, a divided Maine Court affirmed his conviction. State v. Rastrom, supra.

It is, of course, clear that petitioner, being indigent, had a federal right to the appointment of counsel to assist in his defense to the charge against him, which was a felony under Maine law.¹ Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 92 L.Ed. 799 (1963). And it has long been recognized that the right to counsel is the right to the effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S. Ct. 1441, 25 L.Ed.2d 763 (1970); Hawk v. Olson, 326 U.S. 271, 278, 66 S.Ct. 116, 90 L.Ed. 61 (1945); Glasser v. United States, 315 U.S. 60, 69-70, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 84 L.Ed. 377 (1940); Powell v. Alabama, 287 U.S. 45, 56-57, 53 S.Ct. 55, 77 L.Ed. 158 (1932). In Powell v. Alabama, supra, the Supreme Court long ago stated that the duty to furnish counsel "is not discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case." 287 U.S. at 71, 53 S.Ct. at 65. In Avery v. Alabama, supra, while recognizing that "the Constitution nowhere specifies any period which must intervene between the required appointment of counsel and trial," and that "the fact, standing alone, that a continuance has been denied, does not constitute a denial of the constitutional right to assistance of counsel," the Court said:

the denial of opportunity for appointed counsel to confer, to consult with the accused and to prepare his defense, could convert the appointment of counsel into a sham and nothing more than a formal compliance with the Constitution's requirement that an accused be given the assistance of counsel. 308 U.S. at 446, 60 S.Ct. at 322.

In short, "where counsel has no acquaintance with the facts of the case and no opportunity to plan a defense, the result is that the defendant is effectively denied his constitutional right to assistance of counsel." Chambers v. Maroney, 399 U.S. 42, 59, 90 S.Ct. 1975, 1985, 26 L.Ed.2d 419 (Harlan, J., concurring and dissenting).

It is true that the Supreme Court has refused "to fashion a per se rule requiring reversal of every conviction following tardy appointment of counsel." Chambers v. Maroney, supra at 54, 90 S. Ct. at 1982. "The issue is one of fact; and wide discretion is afforded the trial judge's decision." Megantz v. Ash, 412 F.2d 804, 807 (1st Cir.1969) (citing Nilva v. United States, 352 U.S. 385, 395, 77 S.Ct. 431, 1 L.Ed.2d 415 (1957)). And as the Supreme Court stated in Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964),

The matter of continuance is traditionally within the discretion of the trial judge * * *. There are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances present in every case * * *. 376 U.S. at 589, 84 S.Ct. at 849.

Normally, the burden is on the petitioner to show specific prejudice resulting from the denial of a motion for continuance. Megantz v. Ash, supra, 412 F.2d at 806-807; United States v. Ellenbogen, 365 F.2d 982, 985 (2d Cir. 1966), cert. denied, 386 U.S. 923, 87 S. Ct. 892, 17 L.Ed.2d 795 (1967). And yet there comes a point where the time for preparation is so short under the circumstances that the burden shifts to the state to negate prejudice. The Fourth Circuit has led the way in developing the sound rule, now accepted by at least the First and Third Circuits, that the late appointment of counsel, so shortly before trial as to deny opportunity for investigation, research and reflection, is inherently prejudicial and makes out a prima facie case of denial of effective assistance of counsel, with the burden of proving absence of prejudice shifting to the state. Fields v. Peyton, 375 F.2d 624 (4th Cir.1967); Twiford v. Peyton, 372 F.2d 670 (4th Cir. 1967); Martin v. Virginia, 365 F.2d 549 (4th Cir.1966); Megantz v. Ash, supra; United States ex rel. Chambers v. Maroney, 408 F.2d 1186 (3rd Cir.1969), affirmed, Chambers v. Maroney, supra; United States ex rel. Mathis v. Rundle, 394 F.2d 748 (3rd Cir.1968). See also Mosley v. Dutton, 367 F.2d 913 (5th Cir.1966), cert. denied, 387 U.S. 942, 87 S.Ct. 2074, 18 L.Ed.2d 1328 (1967); Pedicord v. Swenson, 304 F.Supp. 393, 398-400 (W.D.Mo.1969). The Third Circuit has expressed the Rule as follows:

Should the trial court fail to appoint counsel sufficiently in advance of trial to prepare defendant's case in a reasonably thorough manner, and should defendant on collateral attack establish a prima facie case that the hasty appointment of legal assistance may have been inherently prejudicial to his

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