Roddy v. United States

• Citation: 296 F.2d 9
• Decision Date: 03 November 1961
• Docket Number: No. 6785.,6785.
• Parties: David Holston RODDY, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

296 F.2d 9 (1961)

David Holston RODDY, Appellant, v. UNITED STATES of America, Appellee.

No. 6785.

United States Court of Appeals Tenth Circuit.

November 3, 1961.

Fred W. Woodson, Tulsa, Okl., for appellant.

James L. Burton, Asst. U. S. Atty., Tulsa, Okl. (Russell H. Smith, U. S. Atty., Tulsa, Okl., was with him on the brief), for appellee.

Before LEWIS and BREITENSTEIN, Circuit Judges, and CHILSON, District Judge.

CHILSON, District Judge.

In 1947 the appellant Roddy waived indictment and entered a plea of guilty to an information charging him with a violation of the Dyer Act.¹ He was sentenced to 18 months imprisonment and the sentence has long since been served.

Appellant is now confined in the Kansas state penitentiary as an habitual criminal. One of the prior convictions upon which his present sentence is based is the 1947 Dyer Act conviction.

In March, 1961, appellant attacked the Dyer Act conviction by petition filed with the sentencing court, designated "Petition for Writ of Error Coram Nobis, in Nature of, Motion to Vacate, Set Aside and Void, Illegal Sentence, by Title 28, U.S.C.A., Section 2255."

The District Court had the power to entertain the petition even though the appellant had served his sentence. See United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248.

The lower court, after hearing the petition on its merits, denied the relief requested and appellant has appealed.

The appellant, as grounds in support of his appeal, states that the trial court (the sentencing court) erred in not invoking Rule 5, Rule 32(a), Rule 32(c) (1) and (2), and Rule 11 of the Federal Rules of Criminal Procedure, 18 U.S.C., prior to or at the time of sentence.

Rule 5 provides for the taking of an arrested person before a United States Commissioner and the right of the accused to have a preliminary examination. The appellant was not taken before a Commissioner and was not given the right of a preliminary examination.

A preliminary examination before a United States Commissioner is not a condition precedent to prosecution by information. United States v. Pickard, 9 Cir., 207 F.2d 472. Consequently, the failure to have a preliminary examination is not a ground for a collateral attack on the sentence and judgment.

Assuming that the failure to take the appellant before the United States Commissioner constituted an illegal arrest, an illegal arrest does not void a conviction, nor is it grounds for a collateral attack upon a judgment of conviction. Plummer v. United States, C.A.D.C., 260 F.2d 729; Hernandez v. United States, 5 Cir., 256 F.2d 342.

Rule 32(a) provides:

"Before imposing sentence the court shall afford the defendant an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment."

This was not done.

The only relief to which the appellant is entitled by this omission is to be resentenced after being afforded his right of allocution.

We said in Kahl v. United States, 10 Cir., 204 F.2d 864, at 866:

"However, since Holiday v. Johnston, 313 U.S. 342, 61 S.Ct. 1015, 85 L.Ed. 1392, the remedy for a sentence void in whole or in part is to apply to the court for vacation of the sentence and proper resentence in accordance with the statute under which the accused is adjudged guilty. United States v. Lynch, 7 Cir., 1947, 159 F.2d 198. This exclusive remedy was recognized and adopted in Title 28 U.S.C.A. § 2255 * * *."

It is not suggested by the appellant that he be resentenced. Having served the sentence imposed, resentencing would be a useless procedure and gain the appellant nothing.

Rule 32(c) (1) and (2) provides for a presentence investigation and report, but as counsel for the appellant points out, the court is not required to order such a report. United States v. Williams, 3 Cir., 254 F.2d 253; United States v. Karavias, 7 Cir., 170 F.2d 968.

However, it appears from the appellant's brief that his basic complaint concerning non-compliance with the foregoing rules is that when he entered his plea of guilty in 1947, he was in fact mentally incompetent and he could not have understandingly and voluntarily entered a plea; and, says appellant, if a preliminary examination had been held under Rule 5, and if appellant had been allowed his right of allocution under Rule 32(a) and if a presentence investigation and report had been made under Rule 32(c) (1) and (2), the mental incompetence of the defendant would have been apparent to the court, and the court, acting under Rule 11, would not have accepted the defendant's plea of guilty.

Rule 11 provides:

"The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily and with understanding of the nature of the charge."

The question of whether or not the defendant did or did not voluntarily and with understanding of the nature of the charge enter his plea of guilty, is a question of fact. The lower court so treated it, held a hearing thereon, and found that the appellant had the mental capacity to understand the nature of the proceedings and cooperate...