United States v. Perchalla

• Decision Date: 28 February 1969
• Docket Number: No. 12494.,12494.
• Citation: 407 F.2d 821
• Parties: UNITED STATES of America, Appellee, v. George Charles PERCHALLA and Jesse Arron Brooks, Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

407 F.2d 821 (1969)

UNITED STATES of America, Appellee, v. George Charles PERCHALLA and Jesse Arron Brooks, Appellants.

No. 12494.

United States Court of Appeals Fourth Circuit.

Argued January 7, 1969.

Decided February 28, 1969.

Philip G. Carson, Asheville, N. C. (J. M. Baley, Jr., Asheville, N. C., Court-appointed counsel, and McGuire, Baley & Wood, Asheville, N. C., on brief), for appellants.

Wm. Medford, U. S. Atty., for appellee.

Before HAYNSWORTH, Chief Judge, and WINTER and CRAVEN, Circuit Judges.

PER CURIAM:

Defendants, both convicted of transporting a stolen automobile in interstate commerce knowing that the same was stolen in violation of 18 U.S.C.A. § 2312, appeal. Perchalla, who was convicted on his plea of guilty was sentenced to a term of three years. Brooks was proceeded against as a juvenile delinquent, pursuant to 18 U.S.C.A. §§ 5031, 5032, and, on his plea of guilty, was committed to the National Training School until his twenty-first birthday, a period less than three years from the date of commitment. We find no merit in any of the three contentions as to why the commitments should not stand, and we affirm.

- I -

Both defendants claim error in the district judge's refusing a continuance of their trial date. They claim that trial counsel¹ lacked an adequate opportunity to interview Brooks, because on his only meeting with Brooks, which occurred ten days before trial, Brooks had an epileptic seizure and the interview was abruptly terminated. The district judge offered to grant a continuance of one day, which was refused, but he declined to continue the cases for six months until the next term of court.

There is no claim that counsel lacked an adequate opportunity to interview Perchalla, and the record discloses two conferences with him prior to trial. No explanation is offered why a conference between counsel and Brooks during the ten-day period between their abortive interview and trial was neither feasible nor held. More importantly, no suggestion is made how defendants, or either of them, were in any way prejudiced by the failure of counsel to confer more extensively with Brooks. Counsel on appeal were unable to represent, even in retrospect, any defenses, facts in mitigation or essential witnesses which were not presented to the trial court as a result of Brooks' alleged inadequate interview.

"The granting of a continuance was a matter resting in the sound discretion of the trial judge * * *." Franken v. United States, 248 F.2d 789, 790 (4 Cir. 1957). On this record we find no abuse of discretion.

- II -

Defendants' claim that their guilty pleas were not voluntarily given is equally lacking in substance. Both assert that they pleaded guilty because Brooks believed he would be placed on probation and Perchalla that he would be allowed to enter the military service.

Brooks alleges no basis for his belief — the representation of the prosecutor, his attorney or the Court — and the record discloses none. Perchalla's belief was based entirely on certain correspondence between a probation officer, various assistant United States Attorneys and...