Wojtowicz v. U.S., 598

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation550 F.2d 786
Docket NumberD,No. 598,598
PartiesJohn Stanley WOJTOWICZ, Appellant, v. UNITED STATES of America, Appellee. ocket 76-2106.
Decision Date22 February 1977

Edward M. Chikofsky, New York City, for appellant.

Gary A. Woodfield, Asst. U. S. Atty, Brooklyn, N. Y. (David G. Trager, U. S. Atty., E. D. N. Y., Bernard J. Fried and Cheryl M. Schwartz, Asst. U. S. Attys., Brooklyn, N. Y., on the brief), for appellee.

Before LUMBARD, FEINBERG and MULLIGAN, Circuit Judges.

LUMBARD, Circuit Judge:

John Stanley Wojtowicz appeals from orders of the Eastern District, dated January 15, 1976 and February 26, 1976, in which Judge Platt denied without an evidentiary hearing appellant's pro se petitions pursuant to 28 U.S.C. § 2255 to vacate or modify the sentence of 20 years imprisonment imposed by Judge Travia on April 23, 1973, after he pleaded guilty to one count of armed bank robbery. On appeal appellant contends that an evidentiary hearing was required to determine: whether he was competent at the time he entered the plea of guilty and at the time of his subsequent sentencing, whether his plea was rendered involuntary because of coercion by his family or was improperly influenced by a sentence promise made by his attorney, and whether he was denied the effective assistance of counsel. The court finds that, with the exception of his argument regarding his competency at sentencing, appellant's claims are without merit; accordingly, we remand to the district court for a hearing limited to the issue of appellant's competency at the time he was sentenced.

On August 31, 1972 appellant and two confederates attempted to rob a Brooklyn branch of the Chase Manhattan Bank, located at Avenue P and East Third Street, of approximately $37,000. in cash and travelers' checks.

A short time after the bandits arrived at the bank one of Wojtowicz's confederates fled the scene. Undaunted, appellant and his remaining comrade continued the robbery; however, before they could make their escape with the loot, the police arrived at the scene. Thereafter, a bizarre set of events unfolded. The police laid siege to the bank while the bandits held the bank employees hostage inside. Negotiations led to a plan by which the robbers were to be taken to Kennedy Airport, where an airplane was to be waiting to transport them to some unknown destination. This plan failed as well, however. Upon their arrival at Kennedy the FBI closed in; appellant was captured and his confederate was shot and killed. These events have been preserved for posterity in dramatic form by the film "Dog Day Afternoon."

Wojtowicz was subsequently indicted on three counts of bank robbery in violation of 18 U.S.C. §§ 2113(a), (d), and (e) and upon one count of conspiracy. Because hostages were taken, he faced the possibility of the death penalty on the third count. 18 U.S.C. § 2113(e). After arraignment Mark Landsman was appointed as appellant's counsel. Landsman also represented appellant in negotiations involving the sale of the movie rights to "Dog Day Afternoon."

At Landsman's request, on September 12, 1972 the court ordered that appellant undergo a psychiatric examination to determine his competency to stand trial, pursuant to 18 U.S.C. § 4244. Thereafter, appellant was confined to Kings County Hospital for three weeks, during which time he underwent psychiatric observation. The psychiatrist's report, dated October 6, 1972, noted that appellant's medical history indicated he had visited St. Vincent's Hospital on three occasions, where he received treatment for chronic schizophrenia; however, the report stated that "(t)here is no psychosis or schizophrenia present in this defendant." The report also recounted appellant's homosexual entanglements and his claim that he committed the bank robbery in a desperate attempt to obtain money for his male paramour's transsexual operation. 1 The report concluded by stating that appellant appeared to be "a well educated, fairly intelligent male who is functioning above the average level. It is my opinion that the defendant is competent and fit to proceed."

On February 16, 1973 Wojtowicz offered to plead guilty before Judge Travia to count two of the indictment, which carried a maximum penalty of 25 years imprisonment and a $10,000. fine, pursuant to an agreement with the government under which the remaining counts of the indictment were to be dismissed. Before accepting the plea, Judge Travia conducted an extensive Rule 11 inquiry. It was brought out that appellant had attempted suicide some time early in 1972 and had been treated as an out-patient at St. Vincent's Hospital and had visited a psychiatrist in March of 1972. In response to the court's questioning, appellant indicated that he was aware of what he was doing at the time of the crime. The court queried appellant concerning his desire to plead guilty, his satisfaction with his attorney and whether he had been induced to plead guilty by threats or promises. Appellant also explained his understanding of the agreement with the government, which the court confirmed as correct. The court established that appellant understood the nature of the charges to which he would plead, the maximum penalty the court could impose, and the nature of the rights he would waive. The terms of the agreement with the government were laid out on the record and appellant described his participation in the crime and admitted his guilt. During the court's inquiry it was brought out that up until that morning Landsman had been under the misimpression that the maximum penalty possible under count three was life imprisonment and was not aware of the possibility of the death penalty.

Prior to imposing sentence on April 23, 1973, Judge Travia asked Wojtowicz about a letter he had written the court expressing dissatisfaction with his attorney. Appellant then explained that he felt counsel had failed to bring certain matters to the court's attention, had failed to make certain motions, and had not released funds entrusted to him by appellant. In the course of this discussion appellant also stated that in making his decision to plead guilty his family had placed pressure upon him; particularly, appellant stated that Ernie, his male paramour, thought he should plead guilty in order to obtain a shorter sentence and that he thought Ernie might leave him if he did not plead guilty. After further discussion with counsel and appellant, Judge Travia indicated that while he was not disposed to relieve Mr. Landsman, he might consider granting an application to withdraw the plea. The court recessed until 2:00 that afternoon to give appellant an opportunity to discuss matters with his attorney and his family.

After the adjournment, appellant indicated that he was ready to be sentenced. Before accepting the plea the court again queried appellant concerning his understanding of the charges and the consequences of his plea. After counsel spoke on his behalf, appellant engaged in a rather eloquent, but bizarre allocution; he explained that he knew his acts to be wrong but that he desperately needed the money to obtain a transsexual operation for Ernie, in order to prevent Ernie from committing suicide. Judge Travia then sentenced appellant to imprisonment for twenty years.

On August 15, 1973 Landsman filed a Fed.R.Crim.Pro. 35 motion for reduction of sentence, in which he averred, inter alia, that "just prior to sentence" appellant had inflicted injuries upon himself and was in poor physical condition and a "highly nervous state during which he made certain statements which may have inadvertently antagonized the Court." 2

On October 21, 1975 appellant, acting pro se, filed a petition (the basis of the present appeal) to have his sentence vacated pursuant to 28 U.S.C. § 2255 or, in the alternative, to have his sentence reduced pursuant to Rule 35. The petition alleged that counsel had induced appellant to plead guilty upon the understanding that he would be sentenced to no more than 10 to 15 years. 3 In support of the petition, appellant's wife, male paramour, and mother submitted affidavits averring, inter alia, that appellant had received psychiatric treatment at St. Vincent's Hospital for an attempted suicide and that they had urged him to plead guilty after being told by his attorney that appellant would not receive a term greater than 10 or 15 years. In addition, appellant's "jail-house lawyer" filed an affidavit stating that appellant had told him of Landsman's sentence estimate and appellant's reliance thereon. Landsman also submitted an affidavit in which he stated that he had not promised anyone connected with the case that Wojtowicz would receive a term of only 10 or 15 years.

Judge Travia having resigned, the petition was referred to Judge Platt, who found in an opinion dated January 15, 1976, that examination of the sentencing minutes left no doubt that appellant had been made fully aware of the maximum penalties possible under count two of the indictment and that Judge Travia alone would determine the sentence within the maximum prescribed by statute. Noting that appellant had not claimed his plea was involuntary, the court pointed out that assuming there had been an incorrect sentence estimate, such estimate could not serve as the basis for a § 2255 attack unless measured by objective standards appellant would have been justified in relying on the estimate or unless the erroneous advice amounted to ineffective assistance of counsel. The court then found that appellant had been warned on no fewer than four occasions of the maximum penalty possible and that the record "conclusively demonstrated" that appellant could not reasonably have relied on Landsman's alleged estimate; further, the court found that there was not even an allegation that Landsman's estimate amounted to ineffective assistance of counsel.

On January 30, 1976 appellant, again...

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