United States v. Tribote, 105

• Decision Date: 22 November 1961
• Docket Number: Docket 26792.,No. 105,105
• Citation: 297 F.2d 598
• Parties: UNITED STATES of America, Appellee, v. Dominick TRIBOTE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

297 F.2d 598 (1961)

UNITED STATES of America, Appellee, v. Dominick TRIBOTE, Defendant-Appellant.

No. 105, Docket 26792.

United States Court of Appeals Second Circuit.

Argued November 3, 1961.

Decided November 22, 1961.

Ross B. Burke, New York City (The Legal Aid Society, Anthony F. Marr, New York City, on brief), for appellant.

Jerome C. Ditore, Asst. U. S. Atty. for Eastern District of New York, Brooklyn, N. Y. (Joseph P. Hoey, U. S. Atty. for Eastern District of New York, Brooklyn, N. Y., on brief), for appellee.

Before CLARK, HINCKS and KAUFMAN, Circuit Judges.

KAUFMAN, Circuit Judge.

On October 29, 1946 the appellant was arraigned on an indictment charging him with five counts of forgery of United States Treasurer's checks, and five counts of fraudulent utterance of forged United States Treasurer's checks in violation of 18 U.S.C. § 73 (now 18 U.S.C. § 495). Appellant entered a plea of not guilty on all ten counts. It does not appear from the record that he was represented by counsel at that time.

Nine days later, on November 7, 1946, appellant appeared before the United States District Court for the Eastern District of New York, at which time Judge Abruzzo assigned Louis J. Castellano as counsel for him. On the same day, after a conference was held between appellant and his assigned counsel, the Court was asked for permission to withdraw the plea of not guilty previously entered on count one of the indictment (which charged forgery) and to substitute a plea of guilty thereon. The clerk of the court then read count one to appellant, informed him of his right to trial by jury and his right to have witnesses called on his behalf for such trial. He also advised appellant that if a plea of guilty were entered the Court would have the power to send him to jail, and that it might exercise that power. Having thus been advised of his rights, appellant pleaded guilty to count one. It also appears from the petition that on that day it was agreed between appellant, his assigned counsel, and the Assistant United States Attorney that the Government would move to dismiss the remaining nine counts of the indictment after sentence was imposed on count one.

On November 27, 1946, the appellant reappeared before Judge Abruzzo for sentencing on count one. The transcript of what transpired that day discloses the following:

"The Court: Where is your attorney?

"Mr. Ferreri Assistant U. S. Attorney: Mr. Castellano was assigned by your Honor.

"The Court: Do you wish to say anything in your favor? You can say anything you want.

"The Defendant: All I would like to say is that if you want to send me away it is up to you.

"The Court: What do you think about it? Do you think you ought to go away?

"The Defendant: I am guilty.

"The Court: You committed five crimes, you know, and you forged five times.

"The Defendant: That\'s right.

"The Court: You have an idea you ought to go away, haven\'t you?

"The Defendant: Yes. I don\'t deserve to be let out scot free, but I think maybe you might give me a big probation or something, give me a chance to make restitution. I am the only one that supports the family, Judge.

"The Court: You have been in trouble five or six times. Two years — $100 fine.

"Mr. Ferreri: That is on count 1. As far as counts 2 to 10, inclusive, are concerned the Government moves to dismiss them.

"The Court: Motion granted." (Appellant\'s Appendix, p. 15-a.)

It is clear from the above, and it is agreed, that when sentence was imposed, no attorney representing the appellant was present.

Appellant served his sentence on the forgery count. Subsequently, on December 9, 1954, he was convicted of first degree robbery in the County Court of Westchester County in the State of New York. On January 14, 1955, that court sentenced him to be imprisoned for a period of 35 years to life as a fourth felony offender pursuant to section 1942 of the New York Penal Law, McKinney's Consol.Laws, c. 40. Appellant is presently incarcerated under that sentence.

Thirteen years after having been sentenced by the federal court for forgery, and almost four years after being sentenced by the New York court for robbery, appellant filed a notice of motion in the nature of a writ of error coram nobis in the United States District Court, for the Eastern District of New York. The motion papers alleged that when appellant pleaded guilty to the forgery count in federal court on November 7, 1946, he lacked adequate assistance of counsel; and that the representation actually provided by his assigned counsel was merely pro forma. It was further alleged that when sentence was imposed, the appellant had no assistance of counsel at all. It was claimed, as a result, that the appellant's right to counsel under the Sixth Amendment to the Constitution had been violated. The motion asked the Court to hold a hearing for the introduction of evidence on these claims, that appellant be produced for that hearing, and that the conviction and sentence be vacated. Judge Abruzzo denied the motion in all respects. It is from the order of April 1, 1960 entered on his decision that this appeal is taken.

At the outset, it is important to note that the sole issue before this Court is whether the trial judge erred in his refusal to grant a hearing at which appellant could present evidence to support his claim of deprivation of constitutional right. For the reasons that follow, we hold that the court below correctly denied a hearing on the claim of inadequate representation when the guilty plea was entered. However, we hold that the denial of a hearing on the claim that appellant was denied his right to counsel when sentence was imposed was error, and that the case must be remanded for such hearing.

I

Under the circumstances of this case, appellant is entitled to seek relief for a violation of his constitutional rights by a motion in the nature of a writ of error coram nobis. U. S. v. Morgan, 202 F.2d 67 (2nd Cir. 1953), aff'd, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954). However, it is clear that appellant is entitled to a hearing only if his petition alleges facts which would support a claim of deprivation of constitutional right, Smith v. O'Grady, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859 (1941), and some material issue of fact is in dispute. Walker v. Johnston, 312 U.S. 275, 284-285, 61 S.Ct. 574, 85 L.Ed. 830 (1941); U. S. ex rel. Zdunic v. Uhl, 137 F.2d 858, 861 (2nd Cir. 1943).

II

Appellant's first claim is that the representation provided by assigned counsel when he pleaded guilty to the forgery count was so inadequate as to be merely pro forma. In support of this contention the petition alleges that the plea was made "after a short discussion" between appellant and counsel. Furthermore, in an affidavit accompanying the notice of motion, not of petitioner but of his counsel, it was stated that appellant claimed that "the attorney assigned by the Court never conferred with him at great length nor actually went into the details of the facts of the case in order to prepare any adequate and substantial defense * * *"

There can be no doubt that appellant was entitled to the "conscientious services of competent counsel" at that stage of the proceedings, and that mere perfunctory representation is not enough. U.S. v. Wight, 176 F.2d 376, 378, (2nd Cir., 1949), cert. denied, 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950), and cases cited therein; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Rule 44, Fed.R.Crim.P., 18 U.S.C.A. However, the allegation that the consultation between appellant and his assigned counsel was "short" does not support a conclusion that the proceedings which followed were, as a result, "a farce and a mockery of justice." U.S. v. Wight, supra, 176 F.2d at p. 379.¹ As the Wight case points out, "time consumed in oral discussion and legal research is not the crucial test of the effectiveness of the assistance of counsel. The proof of the efficiency of such assistance lies in the character of the resultant proceedings * * *." Id. Here there is nothing to suggest that the subsequent proceedings were "of such a kind as to shock the conscience of the Court." Id. Appellant was advised of his right to trial by jury in open court before he changed his plea. And it is reasonable to infer that his counsel had worked out an agreement whereby the Government would move to dismiss the remaining nine counts of the indictment.

Nor does the allegation that the assigned counsel failed to explore "the details of the facts of the case in order to prepare any * * * defense" without an additional allegation of appellant's innocence, or of facts demonstrating fraud in the inducement of the plea, wholly lacking here, substantiate a claim of deprivation of constitutional right. Although this Court must, in deciding whether appellant is entitled to a hearing, assume the facts alleged to be true, House v. Mayo, 324 U.S. 42, 45, 65 S.Ct. 517, 89 L.Ed. 739 (1945); Williams v. Kaiser, 323 U.S. 471, 474, 65 S.Ct. 363, 89 L.Ed. 398 (1945), adequate allegations of fact are missing, and therefore the petition does not present sufficient particulars to require a hearing on the claim. Certainly the trial court was not obliged to accept as facts mere conclusory allegations asserted by appellant's counsel. Kyle v. U.S., 266 F.2d 670, 671 (2nd Cir.), cert. denied, 361 U.S. 870, 80 S.Ct. 131, 4 L.Ed. 2d 109 (1959); U.S. v. Rosenberg, 200 F.2d 666, 668 (2nd Cir. 1952), cert. denied, 345 U.S. 965, 73 S.Ct. 949, 97 L.Ed. 1384 (1953); Stephens v. U.S., 246 F.2d 607 (10th Cir. 1957).

III

We are in agreement that appellant was entitled to the assistance of counsel when sentence was imposed. Davis v. U.S., 226 F.2d 834, 839 (8th Cir. 1955), cert. denied, 351 U.S. 912, 76 S.Ct. 702, 100 L.Ed. 1446 (1956); Gadsden v. U. S., 96 U.S.App.D.C. 196, 223 F.2d 627, 630 (D.C.Cir. 1955); Martin v. U.S., 182 F.2d 225, 227, 20 A.L.R.2d 1236 (5th Cir.), cert. denied, 340...