United States ex rel. Bolognese v. Brierley

• Decision Date: 28 May 1969
• Docket Number: No. 17488.,17488.
• Citation: 412 F.2d 193
• Parties: UNITED STATES of America ex rel. Ernest J. BOLOGNESE E-9803, Appellant, v. Joseph R. BRIERLEY, Superintendent.
• Court: U.S. Court of Appeals — Third Circuit

412 F.2d 193 (1969)

UNITED STATES of America ex rel. Ernest J. BOLOGNESE E-9803, Appellant, v. Joseph R. BRIERLEY, Superintendent.

No. 17488.

United States Court of Appeals Third Circuit.

Submitted on Briefs March 24, 1969.

Decided May 28, 1969.

Ernest J. Bolognese, pro se.

Arthur Ed. Saylor, First Asst. Dist. Atty., Reading, Pa. (Robert L. Van-Hoove, Dist. Atty., Reading, Pa., on the brief), for appellee.

Before SEITZ, ALDISERT and STAHL, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

The appellant was convicted of first-degree murder by a Pennsylvania state court jury in September, 1959. Following conviction and before sentencing, his attorneys filed a motion for a new trial, alleging generally that the verdict was against the law, the evidence, and the charge of the court, and assigning error to certain portions of the charge.¹ Under Pennsylvania practice, such a motion must be filed to perfect an appeal to the state supreme court.²

On February 4, 1960, the appellant appeared with his attorneys before the court en banc and asked leave to withdraw the new trial motion. The pertinent record of that proceeding is:

"THE COURT: The only question at the trial was whether or not he was guilty or whether or not he was not guilty by reason of insanity.³ The jury found against him. However, Mr. Bolognese, you did file a motion and reasons for a new trial which is presently before the Court for consideration. I have been informed by your counsel that it is your wish and desire to withdraw the motion and have it dismissed. However, in view of the seriousness of the charge and the type of defense, the Court is of the opinion that we should explain it to you fully and have you understand that, if you desire, you have a right to have that motion for new trial processed fully and decided by the Court. On the other hand, if you are satisfied that there is no merit in it, you have a right to withdraw it. Do you understand that?

"THE DEFENDANT: I understand. BY THE COURT:

"Q. What is your wish in that matter?

A. I want to drop the appeal for a new trial.

Q. You understand your right to go ahead if you want to?

A. I do understand my rights.

Q. You have fully considered it and you want to drop it?

A. Yes.

"THE COURT: In accordance with the expressed desire of the defendant, Ernest J. Bolognese, in open court, after the matter was explained to him, the motion for new trial may be withdrawn.

BY THE COURT:

"Q. I understand you want to be sentenced at this time?

A. That is right, Your Honor.

"THE COURT: Defendant is called for sentence.

* * * * * *

"THE COURT: Is there anything the defendant desires to say before sentence is pronounced?

"THE DEFENDANT: I am satisfied I had a fair trial, and I don\'t have no grudge against nobody for what happened, and I want to thank Mr. Brubaker for his fairness, and thank you for your fairness, and thank my lawyers for all they did for me, and I guess that is about all I have to say."

The appellant was then sentenced to life imprisonment.

Seven years later a petition for a writ of habeas corpus was filed by the appellant in the trial court, alleging that he had been denied his right to appeal the conviction. The court refused relief and was affirmed by the Pennsylvania Supreme Court in Commonwealth v. Bolognese, supra. A habeas corpus petition was then filed in the district court. This too was denied.

In both state and federal post-conviction proceedings, the reviewing courts concluded, without evidentiary hearing, that there had been an intentional abandonment of the right to appeal following the 1959 conviction. This conclusion was based on a review of the original proceedings at which the new trial motion was withdrawn.

Appellant contends that his withdrawal of the new trial motion was not intelligently made and was therefore invalid under the requirements of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) and Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed. 2d 837 (1963), that waiver be "an intentional relinquishment or abandonment of a known right or privilege." He further asserts that the court below was required to hold an evidentiary hearing on his allegation of "ignorant waiver" since no such hearing had been provided in the state collateral proceedings.

The Supreme Court has established definitive guidelines for determining when a district court must afford an evidentiary hearing to a habeas corpus applicant. In Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 757, 9 L.Ed. 2d 770 (1962), the Court ruled:

"Where the facts are in dispute, the federal court must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of trial or in a collateral proceeding."

The guidelines established in Townsend were substantially incorporated by the Congress in the 1966 amendments to the state-prisoner habeas corpus statute, 28 U.S.C.A. § 2254, which now provide in part that the district court may base its adjudication of a habeas corpus application on a review of the state record which "shall be presumed to be correct." The nature and scope of this review was recently explored by this court in United States ex rel. Thomas v. Maroney, 406 F.2d 992, 995 (3 Cir. 1969) which concluded that: "If upon such review the court is satisfied that the presumption of correctness is not dissipated the petition and action may then be dismissed without further proceedings."

The court below made such a review of the state record and concluded that there was an intentional waiver of the right to appeal. We agree. In order to consider this conclusion in proper perspective, it is necessary to frame the precise issue presented against the appropriate constitutional backdrop.

We begin with the postulate that the appellant had an absolute right to seek a new trial and appeal from his conviction and judgment of sentence. That right arose, however, not from any provision of the Federal Constitution but by operation of the law of Pennsylvania.⁴ There is no federal constitutional mandate compelling the states to afford an appellate review of a criminal conviction. This was recognized by the Supreme Court in Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), when the Court, speaking through Mr. Justice Black, noted:

"It is true that a State is not required by the Federal Constitution to provide appellate courts or a right to appellate review at all. See, e. g., McKane v. Durston, 153 U.S. 684, 687-688, 14 S. Ct. 913, 38 L.Ed. 867." 351 U.S. at 18, 76 S.Ct. at 590.

This same proposition was elaborated upon by Mr. Justice Frankfurter in his concurring opinion:

"The admonition of de Tocqueville not to confuse the familiar with the necessary has vivid application to appeals in criminal cases. The right to an appeal from a conviction for crime is today so established that this leads to the easy assumption that it is fundamental to the protection of life and liberty and therefore a necessary ingredient of due process of law.

`Due process\' is, perhaps, the least frozen concept of our law — the least confined to history and the most absorptive of powerful social standards of a progressive society. But neither the unfolding content of `due process\' nor the particularized safeguards of the Bill of Rights disregard procedural ways that reflect a national historic policy. It is significant that no appeals from convictions in the federal courts were afforded (with roundabout exceptions negligible for present purposes) for nearly a hundred years; and, despite the civilized standards of criminal justice in modern England, there was no appeal from convictions (again with exceptions not now pertinent) until 1907. Thus, it is now settled that due process of law does not require a State to afford review of criminal judgments."

Once a state affords the right to appeal, however, the operation of the appellate apparatus must comport with the provisions of the Federal Constitution. This requirement was emphasized by Mr. Justice Harlan in his dissenting opinion in Griffin: "Of course, the fact that appeals are not constitutionally required does not mean that a state is free of constitutional restraint in establishing the terms upon which appeals will be allowed. It does mean, however, that there is no `right' to an appeal in the same sense that there is a right to a trial. Rather the constitutional right under the Due Process Clause is simply the right not to be denied an appeal for arbitrary or capricious reasons." 351 U.S. at 37, 76 S.Ct. at 599.

Thus, it was held in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1960), that once the state affords the right to appeal, it is compelled under the Fourteenth Amendment to provide the aid of counsel to those who would otherwise be unable to afford legal assistance. Accordingly, our review in the present case must be directed toward an inquiry into whether Pennsylvania violated due process in not entertaining the Bolognese appeal.

The Pennsylvania courts have held that the right to appeal may be intentionally abandoned and effectively waived under appropriate circumstances. Commonwealth ex rel. Shadd v. Myers, supra; Commonwealth ex rel. Robinson v. Myers, 420 Pa. 72, 215 A.2d 637 (1966).⁵

Similarly, the Supreme Court has recognized that a defendant in a criminal prosecution may effectively waive the protection of constitutional guarantees. In Fay v. Noia, supra, the Court held that a "deliberate bypass" which is the "considered choice" of the defendant himself will effect a waiver. In doing so, the Court reiterated its earlier holding in Johnson v. Zerbst, supra, defining waiver as "an intentional relinquishment or abandonment of a known right or privilege."

To determine the presence of a waiver under these tests there must be some evidence of an intelligent and intentional act. At the very least, this requires an...