United States v. Wilkins

• Decision Date: 10 March 1965
• Docket Number: No. 131,Docket 28894.,131
• Citation: 342 F.2d 529
• Parties: UNITED STATES of America ex rel. John W. HARTON, Relator-Appellee, v. Walter H. WILKINS, Warden of Attica State Prison, Attica, New York, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

342 F.2d 529 (1965)

UNITED STATES of America ex rel. John W. HARTON, Relator-Appellee, v. Walter H. WILKINS, Warden of Attica State Prison, Attica, New York, Respondent-Appellant.

No. 131, Docket 28894.

United States Court of Appeals Second Circuit.

Argued November 10, 1964.

Decided March 10, 1965.

As Modified April 14, 1965.

Joshua N. Koplovitz, New York City (Anthony F. Mara for the Legal Aid Society of New York, Leon B. Polsky, New York City, of counsel), for relator-appellee.

Brenda Soloff, Asst. Atty. Gen. of State of New York (Louis F. Lefkowitz, Atty. Gen. of State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., Amy Juviler, Asst. Atty. Gen., of counsel), for respondent-appellant.

Before SWAN, WATERMAN and MOORE, Circuit Judges.

MOORE, Circuit Judge:

Petitioner (relator-appellee), John W. Harton, is presently in the custody of the State of New York, serving a five to fifteen year prison term under a judgment (Oswego County Court) entered upon his plea of guilty to the crime of forgery, second degree. New York Penal Law, McKinney's Consol.Laws, c. 40, Secs. 887, 888. He was sentenced as a third offender under New York multiple offender legislation. New York Penal Law §§ 1941, 1943. The information charging petitioner with two previous felony convictions set forth:

(1) A plea of guilty on June 5, 1957, Allegheny County, Pennsylvania, to forging and uttering — a felony.

(2) A plea of guilty on April 15, 1958, Mercer County, Pennsylvania, of fraudulently making and uttering a written instrument — a felony.

In his petition for a writ of habeas corpus, petitioner attacks both pleas as a basis for his New York multiple offender conviction. The trial court sustained the writ and remanded petitioner through the Sheriff of Oswego County to the Oswego County Court for resentence on his plea of guilty of the crime of forgery, second degree. The respondent Warden (appellant) appeals.

Petitioner testified that when he pleaded guilty on April 15, 1958, in Mercer County, Pennsylvania, he was not represented by counsel. The trial court has found that he did not understand the consequences of a guilty plea or that the charges were felonies. The court, therefore, held that the conviction was "invalid, having been procured in violation of the petitioner's rights under the Federal Constitution." Appellant was not able to produce any proof that petitioner had had counsel to advise him before he pleaded guilty to a felony. On this appeal, appellant does not rely on this conviction. His claim that petitioner is a second felony offender is based upon the June 5, 1957, guilty plea.

The trial court found that petitioner appeared in court with counsel on June 5, 1957, and pleaded guilty to counts of forging and uttering. The sentence was probation for three years. The indictment bears the notation that on September 21, 1959 "in open court" probation was "vacated and terminated" and that "now September 21, 1959 petitioner was sentenced to pay a fine of 6¼ cents, costs and imprisonment of not less than three months or more than twenty-three months." The trial court also found that on this occasion petitioner was not represented by counsel; that this was a "critical stage of the proceedings against him"; and that the conviction and sentence entered September 21, 1959 were invalid.

Appellant argues that petitioner's conviction upon his guilty plea was complete on June 5, 1957, for the purpose of establishing his second offender status under New York law; that his suspended sentence and probation were irrelevant to this status once established; and that, therefore, the subsequent revocation of probation and the imposition of a jail sentence on September 21, 1959, did not affect the June 5, 1957, conviction. Appellant's conclusion is that the September 21, 1959 revocation proceeding was not a "critical stage" at which petitioner was entitled to be represented by counsel.

The effect of the Allegheny County proceeding must be examined in the light of Pennsylvania's interpretation of...