Thorne v. United States

• Decision Date: 11 February 1969
• Docket Number: No. 19333.,19333.
• Citation: 406 F.2d 995
• Parties: Michael E. THORNE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

406 F.2d 995 (1969)

Michael E. THORNE, Appellant, v. UNITED STATES of America, Appellee.

No. 19333.

United States Court of Appeals Eighth Circuit.

February 11, 1969.

Michael E. Thorne, pro se.

Calvin K. Hamilton, U. S. Atty., and Anthony P. Nugent, Jr., Asst. U. S. Atty., Kansas City, Mo., for appellee.

Before BLACKMUN, MEHAFFY and HEANEY, Circuit Judges.

BLACKMUN, Circuit Judge.

Michael E. Thorne, by this proceeding under 28 U.S.C. § 2255 and Rule 35, Fed. R.Crim.P., seeks to correct a sentence he claims to be excessive and illegal. We recite the chronology:

1. On September 30, 1964, a three-count indictment was returned against Thorne in the Western District of Missouri. Count I charged him with a violation of 18 U.S.C. § 111, namely, assaulting, on September 29, wilfully and by use of a dangerous weapon, FBI officer James F. Cassidy, Jr., while Cassidy was knowingly engaged in the performance of official duties. Count II was an identical charge with respect to FBI officer Jimmy R. Calhoon. Count III charged a violation on the same day of 15 U.S.C. § 902(f) (the knowing receipt, while a fugitive from justice, of a firearm shipped in interstate or foreign commerce).¹ The weapon, an automatic pistol, described in each of the three counts, is one and the same gun.

2. On October 2, 1964, Thorne appeared with his retained counsel, Carrol C. Kennett, before Judge Duncan for arraignment. He entered a plea of guilty to each of the three counts of the indictment. A presentence report was requested.

3. On October 22, 1964, Thorne again appeared with his attorney before Judge Duncan. Sentences of 10 years on Count I, of 5 years on Count II, and of 1 year on Count III were imposed. The last was "to run concurrently with Counts I and II."

4. The formal judgment and commitment signed by Judge Duncan and filed on October 22, 1964, reads in part:

"IT IS ADJUDGED that the defendant is hereby committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of ten (10) years on Count 1, and a period of five (5) years on Count 2, said sentence to be served consecutively to the sentence of imprisonment imposed on Count 1; and, a period of one (1) year on Count 3, to be served concurrently with the sentences of imprisonment imposed on Counts 1 and 2, for a total sentence of imprisonment of fifteen (15) years."

5. The transcript of the proceedings of October 2 and October 22 was filed December 29, 1964. That transcript recited that the sentence of 5 years on Count II was "to run concurrently with Count I. * * * making a total of ten years."

6. In October 1967 Emily F. Miles, the official reporter who had served at the hearing of October 22, 1964, filed with the district court her "Motion to authorize correction of transcript". In that motion she asserted that at the time of the 1964 hearing she was "extremely busy" and "sometimes neglectful in checking the transcripts against the shorthand notes when given to me by the transcriber, merely glancing through them for typographical errors"; that a deputy clerk of court had recently called to her attention that there was a variance between the transcript and the judge's notes and the clerk's notes "with reference to the sentence imposed"; that the unchecked transcript had been secured by Thorne's wife and forwarded to him; that upon checking her shorthand notes against the transcript she realized "that I had inked my Stenograph that morning and used too much ink and as a result, much blurring was apparent"; that the word "concurrently" had been typed in place of "consecutively" and "ten years" in place of "fifteen years". Judge Duncan thereupon issued an order reciting "upon hearing * * * and upon an examination of said transcript" and ordering the correction of the transcript accordingly.

7. This change came promptly to the attention of Thorne in the United States Penitentiary at Leavenworth, Kansas. On October 23, 1967, he filed with the district court his motion for correction of sentence to make it conform with the transcript as originally typed. In his motion Thorne urges that, in resisting arrest, his action constituted but one criminal act; that, as a consequence, the 10 and 5 year sentences under Count I and Count II exceed the 10 year maximum prescribed by 18 U.S.C. § 111; that there is an inconsistency between the transcript prior to the correction and the formal judgment and commitment; that, where a discrepancy of this kind is present, "the accused shall benefit by that which leads to liberty"; and that his present commitment should be reduced from 15 to 10 years.

8. The United States Attorney filed a response urging an evidentiary hearing "to give petitioner every opportunity to establish his factual claims." Judge Duncan at this point disqualified himself and Judge Collinson received the case. He appointed counsel for Thorne. Counsel so appointed concurred with the suggestion that a full evidentiary hearing be granted.

9. On January 11 and April 19, 1968, hearings were held on Thorne's motion. This was in accord with Ladner v. United States, 358 U.S. 169, 178-179, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958). At the January hearing Thorne, Miss Miles, a deputy clerk, Judge Duncan and Mr. Kennett all testified. At the conclusion of the hearing Judge Collinson stated from the bench, "I am going to find * * * on the consecutive-concurrent issue, I am going to find right now from the bench against the petitioner on that issue. I think the overwhelming evidence * * * leaves no room for doubt. * * *" At the April hearing agents Calhoon and Cassidy testified. The court at that time reserved ruling on the single-multiple offense issue.

10. On April 30, 1968, Judge Collinson filed his order containing findings and conclusions and denying Thorne's motion.

Thorne appeals.

A. The consecutive or concurrent sentence issue. This issue inevitably arises because of the discrepancy between the transcript, as initially typed, and the formal judgment and commitment filed earlier.

Thorne's position is that the transcript is the official record and that it "cannot be changed three years later where the appellant had nothing to do with causing the error." He testified "I was sort of upset and I don't know what Judge Duncan said. I am not contending one way or another that I know for an actual fact what he said."

This is not a case where the court's own formal record and the judge's oral pronouncement of sentence are not consistent and where one is then confronted with the troublesome issue as to which is to prevail. See Spriggs v. United States, 225 F.2d 865, 868 (9 Cir. 1955), cert. denied 350 U.S. 954, 76 S.Ct. 342, 100 L.Ed. 830; Baker v. Ellis, 204 F.2d 353, 355 (5 Cir. 1953); Meredith v. Gough, 168 F.2d 193 (5 Cir. 1948), cert. denied 335 U.S. 873, 69 S.Ct. 161, 93 L.Ed. 417. That issue is absent here and need not be decided. Pollard v. United States, 352 U.S. 354, 360, 77 S.Ct. 481, 1 L.Ed.2d 393, (1957); United States v. Drake, 274 F.2d 611, 613 (7 Cir. 1960), cert. denied 362 U.S. 981, 80 S.Ct. 1068, 4 L.Ed.2d 1016.

Judge Collinson was confronted with a mere question of fact, namely, what sentences did Judge Duncan actually impose on Michael E. Thorne on October 22, 1964. As to this factual issue the evidence is overwhelmingly one way. Only the transcript, as initially typed by the helper-transcriber, lends support to the concurrency argument. Arrayed in opposition are: (1) the formal judgment and commitment hereinabove quoted; (2) the testimony of reporter Miles that the original transcription was made not by herself but by a transcriber, that she discovered the error only in October 1967, and that her notes, in contrast to the typing, do clearly read "consecutive" and "a total of fifteen years";² (3) the long-hand minute entries of the deputy clerk of court on duty at the sentencing; (4) Judge Duncan's handwritten bench notes made at the time of sentencing; (5) Judge Duncan's personal recollection; (6) the personal and independent...