Ricon v. Garrison

• Court: U.S. Court of Appeals — Fourth Circuit
• Writing for the Court: Before WINTER, CRAVEN and RUSSELL; DONALD RUSSELL; CRAVEN; WINTER
• Citation: Ricon v. Garrison, 517 F.2d 628 (4th Cir. 1975)
• Decision Date: 28 May 1975
• Docket Number: No. 74-1426,74-1426
• Parties: Dr. Carlos Bustamonte RICON, alias Harold B. Richardson alias Jesse Lewis, Appellant, v. Warden, Sam P. GARRISON, Central Prison, Raleigh, N. C. and State of NorthCarolina, Appellees.

Page 628

517 F.2d 628

Dr. Carlos Bustamonte RICON, alias Harold B. Richardson alias Jesse Lewis, Appellant, v. Warden, Sam P. GARRISON, Central Prison, Raleigh, N. C. and State of NorthCarolina, Appellees.

No. 74-1426.

United States Court of Appeals Fourth Circuit.

Argued March 7, 1975.

Decided May 28, 1975.

Patricia W. Weinberg, Arlington, Va. (court-appointed) for appellant.

Richard N. League, Asst. Atty. Gen. (Rufus L. Edmisten, Atty. Gen. of North Carolina, on brief), for appellees.

Before WINTER, CRAVEN and RUSSELL, Circuit Judges.

DONALD RUSSELL, Circuit Judge:

The petitioner, a North Carolina prisoner convicted of the crime of breaking and entering, sought habeas relief, claiming a violation of his right to a speedy trial under the Sixth Amendment. Exhaustion of state remedies was conceded. On the state record, the District Court denied relief and this appeal followed. We affirm.

The prosecution of the petitioner actually began in 1955. In February of that year, he was tried and convicted on three charges of forgery and on a charge of breaking and entering. He received a sentence of not less than 3 nor more than 4 years on the forgery convictions and of not less than 7 nor more than 10 years on the breaking and entering conviction, to be served consecutively. In August of that same year, he was convicted and sentenced to prison for two years on an escape charge and for 10 years on a charge of secret assault with a deadly weapon with intent to kill, the sentences to be served consecutively. Subsequently, he escaped from prison on two occasions and was out of custody (1) from November, 1955, to September, 1956, and (2) from October, 1957 to July, 1965. ¹ While a fugitive, he was arrested and convicted in 1963 in the State of Pennsylvania of illegally practicing medicine under the name of Harold B. Richardson. He received a sentence of 2 years on this offense. As a result of this imprisonment, he was identified as a fugitive from North Carolina and at the completion of his imprisonment in Pennsylvania, he was returned to North Carolina for the completion of his sentences in that State where he was known as Jesse B. Lewis. Immediately on his return to North Carolina, he began a series of pro se proceedings in both state and federal courts seeking release, claiming that he had "never visited" North Carolina until forcibly and illegally returned through extradition proceedings, had never committed "any crime" in that State and was accordingly imprisoned improperly and unconstitutionally in that State. He went further, asserting that he was a doctor, "a refugee from Haiti" involved "in service with the Central Intelligence Service." It was established, however, by means of fingerprint records that the petitioner was "known by numerous other names and aliases" than Richardson and Lewis but that he was the same person, whether using the name Richardson or Lewis. He filed at least four proceedings in the District Court setting up this claim of misidentification and prosecuted three appeals to this Court from the denial of relief on that ground. These proceedings continued as late as May, 1970.

He completed service of his sentence under the forgery conviction in September, 1966 and began service of his sentence on the breaking and entering charge at that time. In February, 1967, he filed in state court another habeas proceeding, claiming again that he was Dr. Harold B. Richardson, not the defendant Lewis and asserting somewhat inconsistently that Lewis had not been represented by counsel at his convictions in 1955. A hearing was accorded the petitioner on that claim in the state court and it was determined again that the petitioner was the defendant Lewis. But, in the course of that habeas hearing, it developed that the petitioner had not been represented by counsel at his 1955 convictions and the state court invalidated all of the 1955 convictions, with leave to the State to retry. An order to this effect was entered in February, 1967. ² At the same time, the Court on its own motion ordered the petitioner committed to a state mental hospital for determination of his competency to stand trial. It was not until April 12, 1967, that the petitioner was determined to be competent to stand trial.

After the petitioner had been adjudged competent to stand trial, the State apparently chose to proceed first on the charge of secret assault and, at the instance of appointed counsel, trial on that charge was delayed until October, 1967, when he was tried and convicted. From this conviction, he appealed and was granted a new trial in November, 1968. ³ Retried on this charge in May, 1969, he was again convicted and this conviction was affirmed in 1970. ⁴ On April 1, 1970, counsel was appointed to represent the petitioner on the charge of breaking and entering. At the same time the petitioner was prosecuting pro se in the District Court another action in which he raised the issue of misidentification. Counsel, appointed to represent him on the breaking and entering charge, raised the issue of speedy trial as well as the competency of the petitioner to stand trial on June 1, 1970. As a result of this action, the court concluded first to order a mental examination of the petitioner. In October, 1970, the case was called for trial, but, upon renewal of the plea of incompetency and after a hearing on the petitioner's competency to stand trial, the petitioner was found incompetent and was ordered returned to the State Mental Hospital. He remained at the Hospital until August, 1972, when he was finally found competent to stand trial. To permit counsel for the petitioner to be present and submit motions, trial was delayed until November, 1972, when he was tried, convicted, and sentenced to not less than 3 nor more than 5 years' imprisonment, with credit for prior confinement. It is that conviction which the petitioner assails in this habeas proceeding on "speedy trial" grounds.

In applying this "balancing test," as mandated by Barker, the first issue is necessarily the extent of delay. The parties differ substantially in their calculations of the delay in this case. The petitioner insists the starting point for determining the length of the delay is the date of petitioner's original indictment and trial in 1955. It is the position of the State, on the other hand, that, in calculating the delay, we should start with the date in 1967 when petitioner's original conviction was invalidated and the petitioner was found competent to stand trial. We are persuaded that the latter view is the correct one. Until March 18, 1963, ⁶ it was generally assumed in most states to be unnecessary to appoint counsel in any criminal case other than those involving a capital offense. Accordingly, when the defendant was originally tried in 1955 it was not considered incumbent on the court to appoint counsel for him. Prior to Gideon the State had no reason to assume that the failure to appoint counsel in a non-capital case would invalidate a conviction; and, after Gideon it is to demand too much of the state that it should have reviewed all convictions prior to Gideon to ascertain whether the defendant in every case, such as the petitioner, either was afforded or validly waived counsel. Until 1967 the State had not been put on notice that the petitioner was without counsel when convicted in 1955. Under the circumstances, the State should not be charged with the delay between 1955 and 1967. This is particularly so in this case, since during a substantial period of this delay, the petitioner was a fugitive, having escaped from custody.

The State, also, contends that the periods when the petitioner was either under observation to determine his competency to defend himself or was under treatment for mental disability should not be considered in calculating the length of delay. Both the State Court, in its decision on the petitioner's post-conviction proceedings, and the District Court, in the habeas proceeding there, concurred in this view. We are in agreement. As one Court has put it, where the delay results from a concern by the trial court over the mental competency of the defendant to stand trial, "the courts have been exceedingly reluctant to find constitutional infirmity even in very long delays." ⁷ Indeed, if the trial court did not exercise a zealous concern in safeguarding a possibly incompetent defendant in his rights, it would properly be subject to censure and could render by its want of concern the conviction, if secured, open to attack. Rather than being penalized for seeking assurance of the mental competency of the petitioner before ordering him to trial, the State should be commended.

Measured under the principles just stated, the delay in this case was approximately 36 months. That is unquestionably substantial delay. It is not, however, as great as the delay in Barker itself, where the delay was in excess of five years, or in many other cases where the courts have found no infringement of the right to a speedy trial. ⁸ It is though, a sufficiently "unusual" delay to act as a "triggering mechanism" to require inquiry into the other factors that enter into the balancing test mandated by Barker, ⁹ but it still "is only one of several factors to be weighed and balanced in determining whether the right to a speedy trial has been denied." ¹⁰

The second factor, which Barker orders considered in this connection, is the reason for the delay. The record establishes that there was no attempt by the State to bring the petitioner to trial on the charge of breaking and entering between April 12, 1967 and April 1, 1970, when counsel was first appointed for the petitioner in this case. ¹¹ The petitioner makes no claim that the State had delayed trial in order to hamper the defense or to gain an advantage, and the record does not suggest that, in the language of the North Carolina Court, the delay was "the studied choice of the...