United States v. DeBlasis

• Decision Date: 07 June 1962
• Docket Number: Crim. No. 24497.
• Citation: 206 F. Supp. 38
• Parties: UNITED STATES v. Guiseppe William DeBLASIS.
• Court: U.S. District Court — District of Maryland

206 F. Supp. 38

UNITED STATES v. Guiseppe William DeBLASIS.

Crim. No. 24497.

United States District Court D. Maryland.

June 7, 1962.

Stephen H. Sachs, Asst. U. S. Atty., Baltimore, Md., for the United States.

James B. Murphy, Baltimore, Md., for defendant.

R. DORSEY WATKINS, District Judge.

Petitioner has filed an application captioned "Vacate Sentence Writ of Habeas Corpus Title 28 U.S.C.A. 2255." Petitioner correctly asserts that on March 6, 1959 he was sentenced under U.S.C., Title 18, Section 4208(b) and that on July 13, 1959 he was committed to the custody of the Attorney General (for a period of five years, "pursuant to U.S.C., Title 18, Section 4208(a) (2), said term of imprisonment to be computed as beginning the 6th day of March 1959; Defendant to become eligible for parole at such time as the Board of Parole may determine") without having been re-called to court. He claims such sentence has been declared illegal by the United States Supreme Court in Grabina v. United States, 82 S.Ct. 880.

Petitioner has previously raised the same question, without of course reliance upon the Grabina case. Although the facts, and the court's ruling adverse to the contention of Petitioner, are set forth in this judge's opinion in United States v. DeBlasis, D.Md.1959, 177 F. Supp. 484, a brief résumé may prove helpful. On August 5, 1958, Petitioner was indicted for two violations of 18 U.S.C. § 2312, and one of 18 U.S.C. § 2313. He was arrested, released on bail, and arraigned on September 12, 1958, at which time through his privately retained attorney he entered pleas of not guilty on all three counts. On December 12, 1958, at the request of his counsel, he was re-arraigned, and after the court had satisfied itself by interrogation of petitioner that he knew the nature of the charges against him, the possible penalties that could be imposed if the pleas were accepted, his rights to plead not guilty and to a jury trial, and that the pleas were voluntary, without promises, threats or inducements, the court accepted pleas of guilty on counts 1 and 2 and not guilty on count 3. The court then stated its desire for a presentence investigation and report. In order that petitioner could remain at large without securing a new bond, the court permitted him to withdraw his pleas. On March 6, 1959, after receipt of the presentence report, and study thereof by the court and petitioner's counsel, petitioner was again arraigned and again pleaded guilty to the two transportation counts and not guilty to the receiving count. A nolle prosequi was entered on the receiving count. The court thereupon heard from petitioner's attorney, and from petitioner, who was given and accepted full opportunity to be heard on his own behalf before the imposition of sentence. The court thereupon imposed sentence and committed petitioner to the custody of the Attorney General pursuant to the provisions of 18 U.S.C. § 4208(b), under which the commitment was "deemed to be for the maximum sentence of imprisonment prescribed by law", namely, ten years.

On July 13, 1959, after receipt of the Recommendations and Report of the Director of Bureau of Prisons under 18 U. S.C. § 4208(c), study thereof by the court and petitioner's counsel, and conference between court and counsel, petitioner was "committed to the custody of the Attorney General or his authorized representative for imprisonment for a period of Five (5) years, pursuant to U.S. C., Title 18, § 4208(a) (2), said term of imprisonment to be computed as beginning the sixth day of March, 1959; Defendant to become eligible for parole at such time as the Board of Parole may determine."

By letter dated September 13, 1959, and received September 15, 1959, petitioner requested the court "to please review my sentence to see if you can possibly cut my time," and stated that he "would not ask a reduction of time if I thought I had a chance of making parole." The court replied on September 15, 1959, pointing out that petitioner's letter had been mailed more than sixty days after the commitment; that the court had no authority to reduce the sentence, and even if it had authority, would not do so. (Petitioner was an habitual offender, then aged thirty-four, having been involved in various offenses since the age of seventeen, and having been confined during most of his adult life.)

The court concluded that as petitioner's original commitment, "deemed to be" for ten years, had been reduced to five years (with eligibility for parole at such time as the Board of Parole may determine, instead of only after the service of one-third of his sentence) there was no legal requirement that petitioner be present in court for a valid reduction of sentence. The sole question therefore is whether the Grabina decision requires a reversal of this conclusion.

The per curiam decision in Grabina is not too enlightening upon this question. It reads:

"In the light of the concession by the Solicitor General and upon an examination of the entire record, the motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated and the case is remanded to the District Court for resentencing."

From the memorandum submitted by the Solicitor General it would appear that the only relevant question was No. 5:

"Whether the sentencing procedure was proper."

On this question, the memorandum of the Solicitor General states:

"5. In his petition for rehearing before the court of appeals, petitioner raised for the first time the contention that the trial judge failed to accord him the right of `allocution' in accordance with Rule 32(a), F.R.Crim.P. 18 U.S.C. Errors raised for the first time in a petition for rehearing are not ordinarily recognized in the court of appeals (United States v. Gordon, 253 F.2d 177, 184 (C.A.7); Peters v. United States, 161 F.2d 940 (C.A.8), certiorari denied, 334 U.S. 860 68 S.Ct. 1525, 92 L.Ed. 1780; Nailling v. United States, 142 F.2d 551 (C.A. 6), certiorari denied, 316 U.S. 675), and the refusal of the court of appeals to consider the claim usually forecloses entertainment of the issue in this court (see Jones v. United States, 362 U.S. 257 272 80 S.Ct. 725, 4 L.Ed.2d 697; Lawn v. United States, 355 U.S. 339, 362, n. 16 78 S.Ct. 311, 2 L.Ed.2d 321).

"In the present case, however, the record (R. 156-159, 160-161, 163-164) discloses fundamental error — sentence was imposed in the absence of petitioner, in violation of Rule 43, F.R.Crim.P. The trial judge obviously believed that he was deferring sentence to await reports under 18 U.S.C. 4208(b), rather than imposing a sentence which later would be subject to reduction. But the fact is that, although no sentence was imposed in open court (R. 156-159), sentence was imposed by the judgment and commitment (R. 160), in the absence of petitioner.4 Under

"4. We are informed that there were no sessions in open court for the adjournment on October 10, 1960, and that petitioner was not present when the sentence was reduced on November 9, 1960, (see R. 163-164; see also R. 4).

these circumstances, we believe that there are basic infirmities in the sentence (see Pollard v. United States, 352 U.S. 354, 356 77 S.Ct. 481, 1 L.Ed.2d 393) and we submit that the case should be returned to the district court for resentencing in compliance with Rule 43, as well as Rule 32(a), F.R.Crim.P.

"CONCLUSION

"For the foregoing reasons, it is respectfully suggested that the writ of certiorari should be granted only as to the question of the propriety of petitioner's sentence and that in this respect the judgment of the court below should be reversed and the case remanded to the district court for sentencing in compliance with Rules 43 and 32(a), F.R.Crim. P."

The record seems adequately to support the memorandum of the Solicitor General that Grabina was not accorded the...