United States v. Myers
Decision Date | 16 March 1967 |
Docket Number | No. 16051.,16051. |
Citation | 374 F.2d 707 |
Parties | UNITED STATES of America ex rel. Arthur JACKSON, Appellant, v. David N. MYERS, Superintendent, State Correctional Institution, Graterford, Pennsylvania. |
Court | U.S. Court of Appeals — Third Circuit |
Arthur Jackson, pro se.
Michael J. Rotko, Asst. Dist. Atty., Arlen Specter, Dist. Atty., Philadelphia, Pa. (Alan J. Davis, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, Pa., on the brief), for appellee.
Before STALEY, Chief Judge, and McLAUGHLIN and FORMAN, Circuit Judges.
This is an appeal by Arthur Jackson from an order of the United States District Court for the Eastern District of Pennsylvania, denying, after an evidentiary hearing, the appellant's petition for a writ of habeas corpus.
The appellant pleaded guilty to a charge of aggravated robbery on July 25, 1962, and was sentenced by the Court of Oyer and Terminer in Philadelphia to a term of ten to twenty years. At the time of sentencing, the judge had before him an "Extract of Criminal Record" prepared by the Police Department of Philadelphia which listed not only a prior criminal conviction of the appellant, but also his juvenile record and occasions when he had been taken before a magistrate and discharged. The appellant attacks the sentence as unconstitutionally imposed on the following grounds: The sentencing judge considered his prior juvenile record in violation of the Act of June 2, 1933, P.L. 1433, §§ 1 and 19; 11 Pa.Stat.Ann. § 261 and in addition did so although the appellant was without counsel in the juvenile proceedings. He considered his discharges by magistrates although they are without probative value as prior culpable acts. He misread the record as though some of the juvenile offenses and magistrates' discharges were adult criminal convictions, so that the sentence was based upon materially incorrect assumptions. His counsel's effort to correct the error was inadequate to the extent that the appellant was denied effective assistance of counsel.
The District Court properly rejected the appellant's first claim that he was denied the benefit of the Pennsylvania Act of June 2, 1933, providing that the disposition of a child in a juvenile court shall not be admissible as evidence against him in a proceeding in any other court. The Pennsylvania Supreme Court decided well prior to the date of appellant's conviction that the statute bars the use of juvenile records only as evidence in a criminal proceeding to determine innocence or guilt, but does not bar its use for the purpose of determining sentence.1
Nothing in the Constitution prevents a sentencing judge from considering a defendant's juvenile record qua a juvenile record. A judge is permitted, if not obliged,2 to give weight to a wide variety of factors, including many not officially documented, which reflect upon the rehabilitative needs of the defendant and the insulative needs of society.3 In particular, a juvenile record may, as in this case, convey instructive evidence of the defendant's probable response to remedial efforts. So long as a judge considers such a record in its proper perspective — i. e., as a reference to non-criminal proceedings where no counsel was required and where the purpose was not penal but curative4 — there can be no ground for complaint. Thus the absence of counsel at juvenile proceedings is a factor which limits the use of the juvenile record, but does not forbid it.
We agree that discharges before a magistrate should have no place in determining sentence. The Supreme Court of Pennsylvania has stated that the purpose of a hearing before a magistrate is "to prevent a person from being imprisoned or required to enter bail for a crime which was never committed, or for a crime with which there is no evidence of his connection."5 A discharge therefore implies the presence of one or both of these factors. However, relief on this basis would depend upon a showing by the defendant not only that the discharges were considered as evidence of culpable activity, but that as such, they were determinants in setting the length of the sentence. Insofar as such a showing has been made in this case, it is subsumed in the consideration of the next issue.
The record supports the appellant's contention that his sentence was imposed by reference to materially inaccurate facts. At page 30 of the trial record the following exchange appears:
And at page 31, the judge in passing sentence stated:
"On Arthur Jackson, because he had the longer record and had several strong arm jobs, I will sentence him * * *" Emphasis added.
In fact, the "Extract of Criminal Record" did have three listings for "Robbery by Strongarm"6 but the first was a charge when the appellant was fifteen years old and resulted in no disposition. On a second strongarm charge he had been discharged by a magistrate. The only criminal conviction on his record was for strongarm robbery for which he incurred a sentence of 6 to 23 months' imprisonment. Thus while the judge stated in effect that he was dealing with a three-time offender, the record showed a conviction for only one criminal offense. This being true, it also appears that in relation to his codefendants, the appellant did not have "the longer record."7
In Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), the sentencing judge made a similar error, as related in the following passage:8
In Townsend, the defendant was without counsel when the sentence was passed, while in the instant case, counsel was present. The Supreme Court linked the error in the factual basis for sentencing with the absence of counsel as follows:9
Recognizing that Townsend rests upon this dual basis, we nevertheless think that the facts of the present case entitle the appellant to relief. The Supreme Court saw the wrong incurred as careless or designed sentencing on the basis of materially untrue facts and assumed that such injustice would normally be precluded by the presence of counsel. This, of course, is premised upon the effective protection by counsel at this juncture, not merely his physical attendance. The District Judge, in another case,10 stated with regard to a counseled defendant:
Here counsel stood mute in regard to those misstatements that required correction. His only utterance and purported objection was "For six years he has not been convicted of a crime." This, as shown in context above, could only have been a plea for clemency on other grounds, for if, by some vague implication, it was meant to correct the judge's erroneous belief, it was plainly inadequate (1) in its terms, since both events mistakenly thought by the court to have been convictions occurred more than six years before the date of sentencing, and (2) in its effect, since the judge's repetition of the same erroneous belief after this statement by counsel indicates that he was not able to glean any such hidden meaning from counsel's remark. During the course of the evidentiary hearing in the present case the late Judge Grim, who died before the opinion of the District Court was filed, asked:
* * *?"
We think the question posed requires an affirmative reply.
The District Court found that the foregoing misstatements had been made, but did not think that the "judge was so mistaken as to relator's criminal background as to raise a constitutional question." This conclusion was based on two grounds, (1) that the judge had read aloud the appellant's criminal record shortly before making the statements, and (2) that the judge "may well have believed that the relator had committed the offenses or may well have felt that it was a matter of indifference since there was evidence of several other offenses of a violent...
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Newman v. State of Missouri
...charge. It is generally held that the severity of a sentence alone cannot constitute grounds for relief in habeas corpus. Jackson v. Myers, 374 F.2d 707 (3rd Cir. 1967); Sheldon v. Nebraska, 401 F.2d 342 (8th Cir. 1968); Avent v. Peyton, 294 F.Supp. 262 (E.D.Va.1968); see also, United State......
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...prosecution contains false or misleading statements which go uncorrected because of unnecessary secrecy. Cf. United States ex rel. Jackson v. Myers, 374 F.2d 707 (3d Cir. 1967). The broad discretion vested in the trial judge in post-conviction proceedings makes adequate supervision and revi......
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United States ex rel. Conomos v. LaVallee
...9, 26. Compare Horner v. Florida, 312 F.Supp. 1292, 1295 (M.D. Fla.1967), aff'd, 398 F.2d 880 (5th Cir. 1968); United States ex rel. Jackson v. Myers, 374 F.2d 707 (3d Cir. 1967). 29 SM at 27. 30 See United States v. Kahn, 472 F.2d 272, 287 (2d Cir.), cert. denied, 411 U.S. 982, 93 S.Ct. 22......
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United States v. Mancusi
...of the court's conclusion was, so far as the present record indicates, not revealed to the prisoner. See United States ex rel. Jackson v. Myers, 374 F.2d 707, 708 (3d Cir. 1967) (state sentencing judge mistakenly believed he was dealing with a three-time offender, although records showed on......