Woykovsky v. United States

• Decision Date: 23 September 1964
• Docket Number: No. 19004.,19004.
• Parties: Alexander J. WOYKOVSKY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

336 F.2d 803 (1964)

Alexander J. WOYKOVSKY, Appellant, v. UNITED STATES of America, Appellee.

No. 19004.

United States Court of Appeals Ninth Circuit.

September 23, 1964.

Alexander J. Woykovsky, in pro. per.

John W. Bonner, U. S. Atty., Reno, Nev., for appellee.

Before ORR, BARNES and JERTBERG, Circuit Judges.

JERTBERG, Circuit Judge.

Appellant, a federal prisoner held in custody at the United States Penitentiary at Leavenworth, Kansas, appeals from an order of the United States District Court for the District of Nevada, dated September 4, 1963 and entered September 6, 1963, denying without a hearing appellant's motion dated August 18, 1963 under Rule 35, Federal Rules of Criminal Procedure "to correct an illegal sentence", imposed upon him by that court on February 25, 1954.

On December 28, 1961 the same District Court denied, without a hearing, a motion filed by appellant on November 22, 1961 under Rule 35, Federal Rules of Criminal Procedure, "to correct an unlawful and illegal sentence" imposed upon him on February 25, 1954. Following such denial appellant appealed to this court. This court treated appellant's motion as a proceeding in the nature of a writ of coram nobis and affirmed the order of the District Court. See Woykovsky v. United States, 309 F.2d 381 (9th Cir. 1962), C.D. 374 U.S. 838, 83 S.Ct. 1889, 10 L.Ed.2d 1059 (1963).

In that decision we reviewed in detail the district court proceedings up to and including the imposition of sentence on February 25, 1954 and the modification thereof on March 5, 1954.

Appellant was arrested in Nevada and accused of violating §§ 495, 500 and 1708 of 18 U.S.C., said offenses allegedly having occurred in the States of Connecticut, Massachusetts, Missouri and in two districts in the State of Ohio. On January 15, 1954 appellant appeared before the District Court to sign five waiver of indictment or information forms for the purpose of proceedings under Rule 20, Federal Rules of Criminal Procedure. The several forms were all signed by the appellant while represented by court appointed counsel and further prosecution of charges against appellant proceeded in the District Court under Rule 20.

Five informations were filed against the defendant in the District Court:

No. 12624 contained five counts;

No. 12618 contained eleven counts;

No. 12614 contained two counts;

No. 12609 contained four counts; and

No. 12608 contained six counts.

On February 25, 1954 while represented by court appointed counsel appellant entered pleas of guilty to all counts contained in the five informations. Imposition of sentence was in the following sequence:

On Case No. 12624 the appellant was committed to the custody of the Attorney General for a period of two years on each count contained in the information, all to run concurrently.

On Case No. 12618 the appellant was committed to the custody of the Attorney General for a period of two years on each count contained in the information, all to run concurrently but consecutively with and to begin after the expiration of the time actually served on the sentences imposed in Case No. 12624.

On Case No. 12614 the appellant was committed to the custody of the Attorney General for a period of two years on each count contained in the information, all to run concurrently but consecutively with and to begin after the expiration of the time actually served on the sentences imposed in Cases No. 12624 and 12618.

On Case No. 12609 the appellant was committed to the custody of the Attorney General for a period of two years on each count contained in the information, all to run concurrently but consecutively with and to begin after the expiration of the time actually served on the sentences imposed in Cases No. 12624, 12618 and 12614.

On Case No. 12608 the appellant was committed to the custody of the Attorney General for a period of two years on each count contained in the information, all to run concurrently but consecutively with and to begin after the expiration of the time actually served on the sentences imposed in Cases No. 12624, 12618, 12614 and 12609.

Thus the aggregate sentences imposed on all counts contained in the five informations was ten years.

On March 5, 1954 the District Court modified the sentences imposed in Case No. 12608 to provide that they should run concurrently with the sentences imposed in Case No. 12609, thus the aggregate sentences imposed on all counts contained in the five informations was reduced to eight years.

Appellant remained incarcerated in the Federal Penitentiary until paroled on September 7, 1959. Following his release from imprisonment and during the period of parole, appellant was arrested by Federal authorities and on October 3, 1960 was sentenced to twelve years imprisonment by the District Court for the Northern District of Illinois, Eastern Division. On November 4, 1960, said court reduced his sentence to eight years and he is presently incarcerated at Leavenworth, Kansas, in the service of said sentence.

At the time appellant was released on parole, he had completely served the sentences imposed in Cases numbered 12624 and 12618. He had served 560 days on Case No. 12614. Thus there remained to be served 171 days on Case No. 12614 and 730 days (2 years) on Cases numbered 12609 and 12608, or a total time remaining to be served of 901 days.

On October 31, 1960 appellant was notified by the United States Board of Paroles that it had issued a detainer against him for violation of his conditional release under sentence of February 25, 1954, and that he would be required to serve the remaining 901 days of said sentence.

On the earlier appeal to this court appellant contended that the record was inconclusive (1) as to whether appellant was in fact presented with copies of the indictments or informations pending against him in Connecticut, Massachusetts, Ohio and Missouri prior to the signing of the Rule 20 forms whereby he consented to the transfer of said indictments or informations to the District Court for the District of Nevada for pleas and sentencing, and as to whether he...