United States ex rel. O'Brien v. Maroney, 17970.

• Decision Date: 31 March 1970
• Docket Number: No. 17970.,17970.
• Citation: 423 F.2d 865
• Parties: UNITED STATES of America ex rel. John G. O'BRIEN C-8019, Appellant, v. J. F. MARONEY, Superintendent, State Correctional Institution at Pittsburgh, Pennsylvania.
• Court: U.S. Court of Appeals — Third Circuit

423 F.2d 865 (1970)

UNITED STATES of America ex rel. John G. O'BRIEN C-8019, Appellant, v. J. F. MARONEY, Superintendent, State Correctional Institution at Pittsburgh, Pennsylvania.

No. 17970.

United States Court of Appeals, Third Circuit.

Argued December 2, 1969.

Decided March 31, 1970.

David N. Brook, Norristown, Pa., for appellant.

Richard A. Devlin, Asst. Dist. Atty., Norristown, Pa. (Stewart J. Greenleaf, Asst. Dist. Atty., Parker H. Wilson, First Asst. Dist. Atty., Milton O. Moss., Dist. Atty., Norristown, Pa., on the brief), for appellee.

Before GANEY, SEITZ and ALDISERT, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

We are called upon to determine the consequences of a failure to appeal a state criminal conviction when appellant knew of his right to appeal, questioned his privately retained counsel about seeking appellate review, and realized that his counsel had no intention of filing and perfecting an appeal.

More than sixteen years ago, in September, 1953, appellant was arrested and charged with armed robbery, burglary, and violations of the Pennsylvania Firearms Act. Because he was imprisoned in a neighboring county awaiting trial on an unrelated charge, appellant was not present at the preliminary hearing in Montgomery County. In July, 1955 — one and one-half years after indictment, but before trial — appellant moved to quash the indictment on the ground that there was unreasonable delay in bringing him to trial. The county court denied the motion and the Pennsylvania Supreme Court refused a petition for mandamus. Certiorari was denied by the United States Supreme Court.¹ In the meantime, appellant's absence at the preliminary hearing became the subject of a motion to quash which was prosecuted by his counsel who had been privately-retained by his parents. Again the county court denied the motion and appeals to both Pennsylvania appellate courts were unsuccessful.²

The case was tried to a jury in 1957. Appellant was convicted on all three charges and received a sentence of eight to twenty years imprisonment which commenced in 1965 at the conclusion of a previous sentence. In 1966 appellant filed a petition under the Pennsylvania Post-Conviction Hearing Act, 19 Purd. Stat.Anno. § 1180-1 alleging trial error in the admission of an involuntary confession, denial of the right to appeal, and foreclosure of appellate review by the commonwealth's failure to provide notes of testimony. The county court dismissed the petition and the state superior court affirmed.³ A petition for allocatur and a subsequent request for reconsideration were both denied by the Pennsylvania Supreme Court.

Finally, on December 31, 1968, appellant filed in the district court a petition for writ of habeas corpus, the denial of which is the basis of this appeal. We come, then, to the critical issue before us: Was appellant denied the right to appeal his criminal conviction?⁴

At the district court hearing appellant testified that immediately following the verdict in November, 1957, he asked his private counsel "to appeal the verdict right then and there and at that time he told me it would be futile, that he didn't see where it could be reversed on anything." To the question, "did you answer him when he told you to appeal would be futile?" appellant responded: "He counsel stood up and moved — asked the judge for sentencing right then, and then I turned around and called to my family to have them talk to him." Following sentencing, appellant "asked him to appeal again" and was again told that an appeal "would be futile".

On cross-examination appellant acknowledged that he was aware of the availability of appellate review, for he stated: "It wasn't a question of money or anything else at that point. The question was, I thought the testimony given at my trial could have been appealed." He further testified that no one prevented him from taking an appeal, that he made no independent effort to perfect an appeal, and that it was not until March, 1962 — nearly five years after the appeal period had expired — that he first sought review of his conviction by writing for a trial transcript and subsequently filing a post-conviction petition.

Appellant's trial counsel also testified at the district court hearing, and his recollections of the post-trial conversations were essentially the same as appellant's. Moreover, he explained that appellant's family "either contacted me by phone or by letter and I replied that the appeal will be useless." Appellant's mother stated that after receiving counsel's reply on the question of appeal the family decided to "just let it drop there". To further questioning she responded:

Q. Did you have any further correspondence or conversation with appellant about trying to get hold of counsel?

A. Yes. We talked about it but nothing really came of it.

Q. Did you ever try to contact any other lawyers?

A. No.

Q. Did you ever contact the court?

A. No.

Q. Did you ever contact the district attorney\'s office?

A. No.

From the lengthy history of these proceedings emerge three inescapable conclusions. First, appellant knew of his right to appeal. Having pursued and exhausted appeals in both pre-trial attacks on his indictment, he can hardly claim unfamiliarity with the availability of appellate review. Indeed, his testimony in the district court hearing clearly demonstrated that he was aware of his post-trial rights. Second, appellant had the assistance of privately retained counsel at the post-trial stage. At his side was the same attorney who had been a veteran of his pre-trial forensic wars in both appellate courts of Pennsylvania, and who had defended him at trial. Third, appellant fully understood that his attorney did not intend to appeal. Both he and his family had been told that an appeal would be "futile" or "useless," and both realized that no further action was contemplated by counsel.

What the record in this case does not clearly establish, however, is the financial condition in which appellant and his family found themselves during the appeal period. At best, the record on this point is inconclusive, for although appellant stated that his failure to appeal "wasn't a question of money", one of his answers on re-direct examination suggests that he was indigent.

Q. The district attorney asked you why you did not take an appeal, and your answer was, not a question of money. Did you have money with which to take an appeal?

A. No sir. As I pointed out, my family took care of the initial fee for my attorney. And it never entered my mind about the money object of it. All I was interested in was appealing. I felt I got convicted on testimony that was introduced.

Moreover, certain testimony by his mother also indicates that the family had exhausted its financial resources.

A. Well, John appellant you know, told us to get in touch with counsel and, you know, ask him to appeal, and I called repeatedly but I couldn\'t get in touch with him and I found out, you know, that he had another office which he was doing more business than Norristown so he was there more than Norristown so, you know, the amount of days that you have to appeal passed by and I know somehow or other we just didn\'t have the money and just let it drop there.

The courts have exhibited an increasing sensitivity to the constitutional rights of indigent defendants at the critical post-trial stage. No longer can there be any doubt that a state's obligation to furnish counsel is not discharged when the verdict is read and sentence is imposed. The equal protection clause and the due process incorporation of the sixth amendment require that an indigent be afforded the assistance of legal counsel at every critical stage throughout the criminal process. And to insure the effectiveness of such assistance, the appointed trial attorney has been charged with the duty of respecting his client's desire to file an appeal, even if in his best professional judgment the appeal is utterly without merit.⁵

Similarly, the courts have addressed themselves to particular areas of interest where there is privately retained counsel. From the majority of cases which have analyzed the consequences of a failure to appeal where the defendant is represented by privately retained, non-appointed counsel, we discern the following: (a) where there is knowledge of the right to appeal, there can be a knowing and calculated decision not to appeal which becomes binding upon the defendant;⁶ (b) where there is such a decision, its efficacy is not diluted simply because the advice of counsel was improvident or imprudent;⁷ (c) to relieve the defendant of the consequences of being bound by those decisions of his private counsel in which he has acquiesced, there must be a showing of "misconduct of his counsel amounting to a breach of his legal duty faithfully to represent his client's interests".⁸

When there is representation by privately retained, non-appointed counsel, the mandate of the sixth amendment is implemented not by action of the state, but by action of the individual defendant. The state is not involved in the process of selecting counsel, for the defendant himself achieves the precise objective set forth in the cases proclaiming that an indigent is entitled to have the state furnish that which he cannot afford: counsel to represent him.⁹ Accordingly, equal protection considerations are not apposite. After an appearance has been entered by private counsel, the state is normally absolved of any responsibility to concern itself in a supervisory fashion with the problems of representation. The very nature of the private attorney-client relationship, brought into existence by the deliberate choice of the defendant, justifies an assumption that the defendant will be the recipient of professional advice. So long as the defendant is, in fact, represented by private counsel at the critical appeal stage, the state generally has no duty — indeed, no...