State v. Grundler

• Court: North Carolina Supreme Court
• Writing for the Court: MOORE; Further hearing upon the petition was had before Parker; After hearing the evidence; HIGGINS
• Citation: State v. Grundler, 111 S.E.2d 1, 251 N.C. 177 (N.C. 1959)
• Decision Date: 11 November 1959
• Docket Number: No. 145,145
• Parties: STATE, v. Robert J. GRUNDLER. STATE v. Joseph Leonid JELLY.

Page 1

111 S.E.2d 1

251 N.C. 177

STATE, v. Robert J. GRUNDLER.

STATE v. Joseph Leonid JELLY.

No. 145

Supreme Court of North Carolina.

Nov. 11, 1959

Atty. Gen. Malcolm B. Seawell and Assistant Attorneys General T. W. Bruton and Ralph Moody for the State.

Arthur P. Hartel, Jr., Durham, Herbert E. Rosenberg and Edward Norwalk, New York City, for defendants, appellants.

MOORE, Justice.

Defendants were represented at the criminal trial by counsel of their own choice, employed and paid by them. Upon the coming in of the verdict the jury was polled. The defendants, and each of them, in apt time moved to set aside the verdict, for new trial and in arrest of judgment. Upon the overruling of the motions, defendants gave notice of appeal and made written application in due form to be permitted to appeal in forma pauperis. The court forthwith entered an order providing: (1) defendants are permitted to appeal to Supreme Court without giving bond for costs and in forma pauperis; (2) transcript of the trial proceedings and evidence be furnished to defendants and their counsel at public expense; (3) the cases on appeal and appeal briefs, together with the required copies thereof, be typed and furnished at public expense; (4) counsel who had represented defendants at the trial are appointed to prepare and argue the appeals at public expense. One hundred and twenty days were allowed for preparing and serving case on appeal.

About an hour later defendant Grundler and his father signed and delivered to his attorney the following writing:

'Mr. Aaron Goldberg:

'On behalf of myself and my son I desire that the appeal taken in this case be withdrawn and abandoned.

'This 8th day of March, 1958.

'William Henry Grundler

'Robert Joseph Grundler.'

Immediately thereafter defendant Jelly and his brother signed and delivered to his attorney a written statement as follows:

'Mr. David Sinclair:

'On behalf of myself and my brother, I desire that the appeal taken in this case be withdrawn and abandoned.

'March 8, 1958.

'Raymond F. Jelly

'Joseph L. Jelly.'

Upon being informed of defendants' desires to withdraw the appeals, the court required that the defendants be brought before the court. The defendants were asked to stand and state in person whether or not they desired the appeals withdrawn and abandoned. Pursuant to defendants' statements that they desired the appeals withdrawn, the court entered an order dismissing the appeals.

Twenty-eight days later, 5 April, 1958, Grundler filed a petition in the Superior Court of New Hanover County to set aside the order dismissing the appeal. In the meanwhile he had employed different attorneys, one of them from his home state of New York.

The petition alleged in substance: Petitioner protests his innocence. '* * * (T)he jury's verdict and subsequent sentence of life imprisonment by the court left me in a state of shock and great emotional upset. * * * The only recollection deponent has concerning the signing (request to attorney to withdraw appeal) is that it was suggested that I sign rather than if I lost the appeal and receiving the Gas Chamber. In my then condition, even though innocent of the alleged crime, the fear of the Gas Chamber and my state of shock caused me to sign anything that was placed before me.' Petitioner should be given opportunity to review trial record and confer with his attorney from his home state. An appeal would prejudice no one. The trial attorney and present attorneys advise there is reasonable cause to prosecute the appeal. Petitioner has a meritorious appeal.

The District Solicitor filed answer opposing the petition. The matter came on for hearing at the June, 1958, Term before Frizzelle, J., who dismissed the petition on the ground that the Superior Court '* * has no jurisdiction or authority under G.S. § 1-220 to hear the motion. * * *' Petitioner appealed. This Court ruled that the judge was in error in dismissing the petition and remanded it for further hearing. State v. Grundler, 249 N.C. 399, 106 S.E.2d 488.

Further hearing upon the petition was had before Parker, J., at the March, 1959, Criminal Term of New Hanover County Superior Court. At this hearing it was stipulated that the defendant Jelly 'may adopt the original petition filed by * * * Grundler in the original cause and that the State may use the same answer as to Jelly as in the Grundler case * * *' It was further stipulated 'that the only issue is whether or not the order revoking the order granting a right to appeal in forma pauperis, signed by the Hon. Burgwyn, J., should be set aside for mistake, inadvertence, surprise or excusable neglect.'

Evidence in support of the petition tends to show: Grundler and Jelly are 22 and 23 years of age, respectively. They are members of the U. S. Marine Corps. Grundler is from New York and Jelly from Massachusetts. They had believed they would be acquitted and were shocked at the verdict and sentence. They were emotionally upset and cried. They were never in court before. They desired to appeal and knew they had been granted 120 days to prepare appeal. They made no request for appeal in forma pauperis; their families were and are willing to bear the expense. They were so emotionally disturbed that they did not know until April they had signed away their right to appeal. They knew that upon a new trial they would be tried for the capital offense and had possibility of a death sentence. They are informed they have meritorious grounds for appeal. They waive the relationship of attorney and client and agree that Messrs. Goldberg and Sinclair be called to testify. Grundler's father and Jelly's brother were with them throughout the trial. They too were shocked and emotionally upset by the verdict and judgment, did not realize what transpired thereafter, did not know the appeal had been withdrawn until weeks later. They have financial means to defray expenses of appeal for their son and brother.

Other evidence adduced at the hearing tends to show: Defendants' attorneys did not promise or guarantee a favorable verdict. About an hour after appeal entries had been made defendants requested their attorneys to withdraw the appeals. Attorneys protested, asked them to take more time to consider and to confer with attorneys in their home states. When defendants insisted on withdrawing appeals, attorneys required that the requests be put in writing. The judge refused to dismiss the appeals on the written requests, had the defendants brought before him, and required them to stand and personally state whether or not they desired the appeals withdrawn. Defendants in person in open court requested the judge to withdraw the appeals. The order was then made. Mr. Goldberg is a lawyer of 31 years experience at the New Hanover County Bar. Mr. Sinclair has been a practicing attorney for 35 years, four years of which he was District Solicitor; he has been defense counsel in 35 capital cases. An assistant clerk of the court saw defendants sign the application to appeal in forma pauperis and the requests to withdraw the appeals. In each instance they told him they understood what they were signing and it appeared to him that they did. Several weeks after the trial, Grundler's father and his present attorney from New York went to the office of the District Solicitor and discussed the possibility of a future parole for Grundler. After this the petition herein was filed.

After hearing the evidence, Judge Parker found the following pertinent facts:

'2. That upon the trial of the cause the defendant Robert J. Grundler was represented by the Honorable Aaron Goldberg, of the New Hanover County Bar, and the defendant Joseph Leonid Jelly was represented by the Honorable David Sinclair, of the New Hanover County Bar; that both attorneys * * are outstanding, efficient and accomplished Counselors at Law, possessing unquestionable integrity and ability, and at all times concentrated their legal efforts for the best interest of their client.'

'5. That each defendant was allowed to appeal to the Supreme Court of North Carolina in forma pauperis, which also appears of record.

'6. That thereafter, and within a period of approximately one hour, William Henry Grundler, who had been present during the trial and participated in the conference with Attorney Goldberg and his son, the defendant, moved the Court to be permitted to withdraw his appeal, which withdrawal was allowed by the Court, after questioning the defendant Grundler in open court, and after the defendant Robert J. Grundler, along with his father, William Henry Grundler, had signed a statement to his attorney, the Honorable Aaron Goldberg, specifically requesting that such motion for withdrawal of appeal be made before the Court by his Attorney Goldberg.

'7. That this motion for withdrawal of appeal was made under protest by Attorney Goldberg, and against his advice, and after the defendant Robert J. Grundler, in the presence of his father, William Henry Grundler, had been fully advised of his rights in the matter of said appeal, as will appear from the evidence in this hearing.

'8. That the defendant Joseph Leonid Jelly, along with his brother Raymond Jelly, who likewise had been present during the trial and participated in the conference with Attorney David Sinclair and his brother, the defendant, moved the Court to be permitted to withdraw his appeal, which withdrawal was allowed by the Court after questioning the defendant Joseph Leonid Jelly in open Court, and further the defendant Joseph Leonid Jelly, along with his brother Raymond Jelly, had signed a statement to his attorney, the Honorable David Sinclair, specifically requesting that such motion for withdrawal of appeal be made before the Court by his Attorney, Sinclair.

'9. That this motion for withdrawal of appeal was made under protest by Attorney Sinclair, and against his advice, and after the defendant Joseph Leonid Jelly, in the presence of his brother Raymond...