United States v. Rollnick, 2100.

• Citation: 33 F. Supp. 863
• Decision Date: 01 July 1940
• Docket Number: No. 2100.,2100.
• Parties: UNITED STATES v. ROLLNICK et al.
• Court: U.S. District Court — Western District of Pennsylvania

33 F. Supp. 863

UNITED STATES v. ROLLNICK et al.

No. 2100.

District Court, M. D. Pennsylvania.

July 1, 1940.

Frederick V. Follmer, U. S. Atty., of Scranton, Pa., and Herman F. Reich, Asst. U. S. Atty., of Sunbury, Pa., for the Government.

Daniel G. Murphy, of Philadelphia, Pa., Leo G. Knoll, of Scranton, Pa., and Harold L. Fisher, of New York City, for petitioner.

WATSON, District Judge.

On January 23, 1936, the petitioner, Leonard J. Rollnick, was convicted and sentenced in the District Court of the United States for the Northern District of Illinois, for a period of three and one-half years and fined $1,000 to stand committed until such fine should be paid or until discharged by due course of law. Rollnick appealed, and the judgment was affirmed on April 14, 1937. Thereafter, on September 8, 1937, he was surrendered to the jurisdiction of the District Court and a commitment was issued to the United States Penitentiary, Leavenworth, Kansas. On December 23, 1936, the Petitioner was convicted and sentenced in the United States District Court for the Southern District of New York. The sentence, which it is alleged was pronounced, is set forth in an exhibit which is represented to be an excerpt from the official stenographic record of the trial. This exhibit is not certified. The sentence therein noted provides as follows: "The Court: Leonard J. Rollnick. You are sentenced to five years each on Counts 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, and 19. You are sentenced to two years on Count 20, and sentenced to pay a fine of $5,000. The time of the sentence on Counts 1 to 19, with the exception of the count you were not convicted upon, to run concurrently." The stenographic record does not show any sentence on Count 18, and there is no explanation of the omission. From the same excerpt, there appears to have been a colloquy between the Court and counsel for the petitioner, after the pronouncing of sentence, in which it is shown that the Court knew of the sentence in the Illinois court and assumed that the sentence pronounced would be served consecutively and not concurrently therewith, and it also appears that the court intended the sentence on Count 20 to run consecutively with and not concurrently with the sentence imposed on Counts 1 to 4 and 6 to 19. It also appears from the same excerpt that counsel for the petitioner at that time stated to the Court that it was his recollection that the sentence imposed was as the Court apparently believed it to be. The Clerk of the District Court for the Southern District of New York recorded the following sentence: "Five years on Counts 1 to 4 and 6 to 19, inclusive, and 2 years, and fined $5000.00, on Count 20. Sentences on Counts 1 to 4 and 6 to 19, inclusive, are to run concurrently with each other. Sentence on Count 20 to commence on expiration of sentences on Counts 1 to 4 and 6 to 19, inclusive, to be served at a place of confinement to be designated by the Atty. General. Remanded." The commitment issued upon the sentence provided: "Five years on Counts 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, and 19. Two years and $5000.00 on Count 20. Sentences imposed on Counts 1 to 4 and 6 to 19 inc. are to run concurrently with each other. Sentence on Count 20 to commence at expiration of sentences imposed on Counts 1 to 4 and 6 to 19 inc. (Total Jail sentence 7 years)."

Thereafter, the petitioner appealed from the judgment of the District Court for the Southern District of New York, and the appeal was perfected in April, 1937. On July 8, 1937, the following order was made: "It is hereby ordered, adjudged and decreed that the docket entries of the sentence of Leonard J. Rollnick in the case of United States versus Leonard J. Rollnick (C-98-400) under date of December 29, 1936, be corrected to read: `Leonard J. Rollnick: 5 years on Counts 1 to 4, and 6 to 19 inc. and 2 years and fined $5,000.00 on Count 20. Sentences on Counts 1 to 4 and 6 to 19 inc. are to run concurrently with each other. Sentence on Count 20, to commence on expiration of sentence on Counts 1 to 4 and 6 to 19 inc. Service of sentence on all Counts to run independently of, and not concurrently with, service of sentence heretofore imposed by U.S.D.C. at Chicago, Illinois. To stand committed until fine is paid or otherwise discharged by law. To be served at a place of confinement to be designated by the Atty. Gen'l. Remanded.' Dated, New York, N. Y., July 8, 1937. /s/ Henry W. Goddard, U.S.D.J. Filed: July 8, 1937." Pursuant to this order, an amended commitment was issued on July 8, 1937, providing for a sentence in accordance with the order. On September 4, 1937, the mandate of the United States Circuit Court of Appeals for the Second Circuit was filed in the District Court affirming the judgment of the District Court.

The petitioner was confined in the United States Penitentiary at Lewisburg, Pennsylvania. The petitioner now contends that the sentence legally imposed on him provides for a term of imprisonment of five years; that on May 8, 1939, he was eligible for parole, and that the United States Board of Parole refused to accept his application for parole because the commitments show that his term of imprisonment is ten and one-half years. Whereupon, the petitioner instituted this proceeding for the purpose of correcting the record and determining the correct period of imprisonment which he must undergo by virtue of the proceedings above described.

This proceeding was instituted by the filing of an "Order to show cause, petition and affidavit." The action itself is now represented to be one brought under the New Rules of Civil Procedure, 28 U. S.C.A. following section 723c, but it is obvious that the pleading filed does not comply therewith. Rule 3 provides that "A civil action is commenced by filing a complaint with the court." Rule 4 provides that "upon the filing of the complaint the clerk shall forthwith issue a summons * * *." In the instant case, a summons was not issued for the reason that the Petitioner did not file his pleading as a civil matter but as a criminal matter. The caption of the case also indicates that the Petitioner did not regard his action as a civil proceeding. Through this confusion of pleading, an attempt was made to institute an original proceeding in this court by means of a petition for a rule to show cause and to bring in the defendants or respondents with a rule to show cause rather than a summons. Furthermore, with regard to the...