United States v. Brierley

• Citation: 277 F. Supp. 751
• Decision Date: 29 December 1967
• Docket Number: Misc. No. 3624.
• Parties: UNITED STATES of America ex rel. Johnnie Lee DUNCAN, E 9981, Petitioner, v. Joseph R. BRIERLEY, Superintendent, Respondent.
• Court: U.S. District Court — Eastern District of Pennsylvania

277 F. Supp. 751

UNITED STATES of America ex rel. Johnnie Lee DUNCAN, E 9981, Petitioner, v. Joseph R. BRIERLEY, Superintendent, Respondent.

Misc. No. 3624.

United States District Court E. D. Pennsylvania.

December 29, 1967.

Johnnie Lee Duncan, in pro. per.

Paul Robert Sand, Dist. Atty. of Delaware County, Media, Pa., Vram Nedurian, Jr., Asst. Dist. Atty. of Delaware County, Media, Pa., for respondent.

MEMORANDUM

FULLAM, District Judge.

On March 24, 1960, in the Court of Oyer and Terminer of Delaware County, Pennsylvania, the relator, Johnnie Lee Duncan, entered a plea of guilty to a general charge of murder. Under Pennsylvania law, such a plea acknowledges guilt of felonious homicide, but leaves open for adversary determination in non-jury proceedings the question of the degree of the offense, as well as the sentence. The presumption is that the offense rises no higher than second degree murder, and the burden is upon the Commonwealth to prove beyond a reasonable doubt that all of the elements of first degree murder exist. Commonwealth ex rel. Andrews v. Russell, 420 Pa. 4, 6, 215 A.2d 857 (1966). The defendant has the right to attempt to reduce the degree of culpability to a charge of voluntary manslaughter. Commonwealth v. Kirkland, 413 Pa. 48, 195 A.2d 338 (1963).

At the hearing following the entry of relator's guilty plea, the Commonwealth's evidence disclosed that the relator had stabbed his wife fifty or sixty times with a small penknife, causing her death.¹ The trial court fixed the degree of the crime at murder in the first degree, and sentenced the relator to life imprisonment. Throughout these proceedings, relator was represented by court-appointed counsel (apparently, known to the relator previously, and perhaps even selected by him). No post-trial motions were filed, and no appeal was taken.

On April 27, 1965, relator filed a petition for habeas corpus in the Court of Common Pleas of Delaware County. A hearing, at which relator was represented by private counsel, was held on September 10, 1965. One of relator's principal contentions was the denial of his right of appeal. He alleged in his petition

"Petitioner at the time of his conviction and sentence as heretofore stated herein, was ignorant of his legal rights and was unaware of the fact that he had cause for appeal, or even that there existed such a thing as an appeal."

The District Attorney's memorandum submitted in opposition to the granting of the writ, in listing the issues raised by the relator, included, as issue No. 16 "the defendant was denied a right to appeal"; and this precise issue is also listed in the opinion of the Common Pleas Court disposing of the application.

At the hearing, the relator testified that he had never been informed of his right to appeal, and was not aware of it; and the lawyer who had represented him at trial admitted that he had never advised the relator of his right of appeal, and had not discussed that subject with him, because he was of the opinion that there was no reason to appeal. No attempt was made to contradict or impeach any of this testimony. Moreover, the record of the criminal trial shows that payment of counsel fee and expenses was authorized five days after the imposition of sentence. There is a strong inference that this action terminated counsel's appointment.

On March 1, 1966, the Court of Common Pleas filed its opinion and order, dismissing the petition for habeas corpus. The court made no specific findings on the issue of the denial of the right of appeal, stating merely "the remaining allegations in the petition, Nos. 13, 14, 15 and 16, we feel are without merit and dismiss them without further discussion." Relator appealed from this order. The appeal was submitted on briefs, without oral argument; relator was not...