222 F.2d 199

1

Arraigned and convicted on his plea of guilty without counsel, appellant Piner was sentenced June 13, 1939 to a term of 20 years for bank robbery under 12 U.S.C.A. § 588b, effective at that time. This appeal follows a hearing, June 17, 1954 on, and denial of, Piner's application under 28 U.S.C. § 2255. We use "application" in contradistinction to technical "motion" because the district judge treated a letter written to him by Piner as an invocation of § 2255.

2

Of those central figures participating in Piner's original disposition and sentence, only the Assistant United States Attorney survives. The district judge who then presided, court reporter, United States Attorney and Piner's codefendant are all deceased. Still available, however, were two Federal Bureau of Investigation agents who testified below in the current proceedings at which Piner had court-appointed counsel.

3

A significant factor, in this appeal, is the utter lack of an original record or transcript of proceedings on the arraignment now attacked by Piner through his attorney. Indeed, counsel for plaintiff and defendant have stipulated that the court reporter for the United States District Court, Southern District of Indiana, is now deceased, and:

4

"That a search has been made for the — for a transcript of the arraignment proceedings in the office of the Clerk of this (ed: the court below) Court, and in the office and files of the Reporter of this Court, and no transcript of said arraignment proceedings can be located."

5

Consequently we, as did the judge below, are examining this case on a record reconstructed through testimony of Piner and Mr. Pfister who was the Assistant United States Attorney originally assigned to the challenged arraignment. Pfister was present during Piner's plea of guilty, conviction and sentencing.

6

Our analysis of the current record of proceedings under § 2255, discloses that parol evidence concerning Piner's arraignment can be conveniently summarized and compared by paralleling such evidence in this fashion:

7

DIRECT TESTIMONY OF DIRECT TESTIMONY OF FINDINGS OF FACT No. 3
PLAINTIFF-APPELLANT PAUL A. PFISTER, FORMER Made in the proceedings
PINER ASSISTANT U. S. under § 2255. (T. R.
ATTORNEY — unnumbered. Findings
(Stenographic Trans. of Fact and Conclusions
(Stenographic Trans. 81-82, 84) of Law, dated
59 to 61) October 21, 1954)
"The two defendants "That at said arraignment,
were brought before the the late Judge Baltzell
Bench in this Court Room, in substance, asked of
"* * * I came in the Judge Robert C. Baltzell, Byron A. Piner his age,
Court Room. I'm rather presiding. Judge Baltzell to which Piner replied
vague about all the actual had the original indictment `Twenty-seven.'
proceedings. I know in his hand. He
what took place, but in the asked first of all, which is "Judge Baltzell then
order that they took place Piner and which is Herring. asked, `Do you have a
I'm not sure. I came in to Then he interrogated lawyer?'
the Court Room. I was Piner and Herring "To this question Piner
asked my name. I — the separately. I mean, both replied, `No'.
District Attorney, he standing before the Bench "Judge Baltzell then
started talking about my side by side. He said, asked, `Do you want one?'
past record. And the `Your name is Byron Piner.' "Piner replied, `No.'
judge asked me how I — Mr. Piner said it "Judge Baltzell then
asked me if I was — had was. `What's your age?' said, `You understand under
counsel. I said No. He Piner replied * * * He the law, you are entitled
asked me if I wanted said, `Do you have a lawyer?' titled to the appointment
counsel, and I said no. Mr. Piner said, of counsel by the Court if
And he asked me if I understood `No' and then Baltzell you do not have counsel of
the charge. I said, `Do you want one?' your own choice?'
said yes. He said, `How Mr. Piner said, `No'.
do you plead?' I said, Judge Baltzell said, `You "Piner replied, `Yes.'
Guilty.' He asked my codefendant understand under the law "Judge Baltzell then
Herring how you are entitled to the appointment said, in substance, `You
he pled. He said he pled of counsel by are charged in an indictment
guilty. And we were sentenced the Court, if you do not with robbing a bank
right there. Now, have counsel of your own at Linden, Indiana, in
that is all that was taken choice?' Piner said, `Yes.' Montgomery County, and
place in the Court room. Judge Baltzell said, `You you are charged in the
* * * know what you are charged second count of the indictment
with?' Piner said, with taking a stipulated
`Yes.' Judge Baltzell had amount of money
the indictment in his and funds from the bank.
hand, and he said, `You Do you know what it
"Q. * * * did he are charged in an indictment means to enter a plea to
ask Herring the same with robbing a bank an indictment?'
questions he asked you? at —' (as I remember) `at "Piner said, `Yes.'
A. That's right. * * * Linden, Indiana, in Montogomery
County, and you "Judge Baltzell then
are charged in the second said, `That means if you
count of the indictment enter a plea of guilty to
"Q. Was a copy of the with taking a stipulated the indictment, you did
indictment served upon amount of money and what is charged in the indictment.

8

DIRECT TESTIMONY OF DIRECT TESTIMONY OF FINDINGS OF FACT No. 3
PLAINTIFF-APPELLANT PAUL A. PFISTER, FORMER If you enter a
PINER ASSISTANT U. S. plea of not guilty, it
(Stenographic Trans. ATTORNEY means that you do not
59 to 61) (Stenographic Trans. know what is charged in
you at anytime? A. No. 81-82, 84) the indictment.'"2
sir * * * funds from the bank.'
"Q. Did he read the Judge Baltzell said, `Do
indictment to you? A. you know what it means to
No sir * * *"² enter a plea to an indictment?'
Mr. Piner said,
`Yes.' Judge Baltzell said
`That means if you enter
a plea of Guilty to the indictment,
you did what is
charged in the indictment.
If you enter a plea of Not
Guilty it means that you
did not know what is
charged in the indictment.'²
"The Court:1 May I
inquire, was the indictment
ever read to him?
"The Witness: Not in
my presence, your Honor.
The Judge stated the substance
of the charge in the
count. The indictment
was not read in its entirety
in open court. * * *"
"Q. Was there a Reporter
in the Court Room
that day Mr. Pfister? A.
I think not."
"The Court: There was
not a Court Reporter?
The Witness: No, Your
Honor. There had not.
It had not been the rule of
the Court to have a Reporter
present at the arraignments
in criminal
cases up until about the
year 1943. We had a
rather unfortunate situation
occur, and I recall
the case distinctly * *.
But I am rather certain
that there was no Reporter
in this instance."

9

Piner's current version of his 1939 arraignment must be examined against the backdrop of the following passage in Johnson v. Zerbst, 1938, 304 U.S. 458, 468-469, 58 S.Ct. 1019, 1025, 82 L.Ed. 1461:

10

"It must be remembered, however, that a judgment can not be lightly set aside by collateral attack, even on habeas corpus. When collaterally attacked, the judgment of a court carries with it a presumption of regularity. Where a defendant, without counsel, acquiesces in a trial resulting in his conviction and later seeks release by the extraordinary remedy of habeas corpus, the burden of proof rests upon him to establish that he did not competently and intelligently waive his constitutional right to assistance of Counsel. If in a habeas corpus hearing, he does meet this burden and convinces the court by a preponderance of evidence that he neither had counsel nor properly waived his constitutional right to counsel, it is the duty of the court to grant the writ."

11

In this situation the district judge was called upon to recapture and evaluate Piner's state of mind on June 13, 1939. Conceivably the interim years, since then, might well have colored or distorted the recollections of all witnesses heard below. Piner, who had ten years of schooling, was 27 years old when he plead guilty before Judge Baltzell. Though appellant had never been in a Federal Court prior thereto, he had been convicted in state courts of forgery, reckless driving and disorderly conduct. These convictions, in 1929, 1930 and 1931, rested on pleas of guilty entered without counsel.

12

The hard core of this appeal is whether Piner relinquished his constitutional right to counsel with full appreciation and realization of what he was doing. We think he did.

13

Piner's own direct testimony, already subjected to tabular analysis above, shows he admits there was an opportunity to have counsel if "wanted." But his direct testimony goes further, for when he was asked by his court-appointed counsel (during these § 2255 proceedings) about some conversation just prior to arraignment with Kenneth Pettijohn, Special Agent of the F. B. I., Piner replied, and the transcript shows:

14

"A. I asked Mr. Pettijohn — I sent word to him that I would like to see him, and I asked him a question. If — if I should choose not to plead guilty and stand trial, would it be possible for me to be sent, upon conviction, if I were convicted, would it be possible for me to be sent to some different institution other than my co-defendant. I was advised by Mr. Pettijohn that that was — without his — he had no jurisdiction over that, that it was up to the Attorney General of the United States.

15

"Q. Now, was there any one present at that conversation? A. He and I.

16

"Q. Just you and Mr. Pettijohn? A. That's right.

17

"Q. Is that all of the conversation that you had with Mr. Pettijohn at that time? A. Yes sir."

18

Such thinking reported by Piner himself, as part of his burden, goes far toward cutting ground from under the position urged on appeal. Certainly Piner had contemplated entering a plea of not guilty and standing trial. He has shown an awareness not only of alternative pleas but the method of obtaining trial. It is also clear from the quoted excerpt that Pettijohn said nothing prejudicial. On cross-examination by government counsel there is, again, some similar manifestation of Piner's thought processes, for the stenographic record shows:

19

"Q. Let me rephrase that, then. Was your question, that if you chose to stand trial would you be sent, on conviction, to the same penitentiary as your co-defendant?

20

"A. My question was this: If I chose to stand trial and was convicted, would it be possible for me to go to one institution and him to another institution — a separate institution, because I —

21

"Q. In other words, Mr. Piner, at the time you hadn't made up your mind, as yet, as to what plea you were going to enter?

22

"A. Not directly."

23

Appellant cites and relies upon United States v. Wantland, 7 Cir., 1952, 199 F.2d 237, 238 but an examination shows that in his petition Wantland alleged "inter alia that he was insane at the time of the offense alleged against him and at the time of the plea and sentence, and that within five days after he was sentenced to imprisonment and while confined in a federal prison, mental tests were begun upon him by psychiatrists, and that on September 19, 1950, the Board of Examiners at the federal prison found him insane." The district judge confronted with those allegations, and others showing want of counsel denied Wantland's motion under 28 U.S.C. § 2255. We reversed the District Court and remanded that cause "for further and not inconsistent proceedings." Clearly intelligent waiver of counsel in the Wantland case virtually pivoted on the literal meaning of "intelligent." In Wantland we quoted with approval certain language from Cherrie v. United States, 10 Cir., 1949, 179 F.2d 94, 96. There the Tenth Circuit prescribed a minimum standard for trial judges advising defendants concerning right to counsel, stating, in part: "* * * that if he [defendant] is unable to employ counsel, it is the duty of the court to appoint, and the court will appoint, counsel for him", Ibid, 96. But Judge Phillips qualified his stated minimum by saying:

24

"Of course, if the defendant is learned in the law, or it otherwise clearly appears that he knows his constitutional rights, a less inquiry may suffice."

25

Clearly, Piner knew he had a right to counsel; could have a trial; that the court would appoint counsel for him if he, Piner, desired one. But we remain unpersuaded that Piner thought Judge Baltzell was merely speaking of locating an attorney as distinguished from providing free court-appointed counsel. The choice between trial on the merits and a plea of guilty pivoted on Piner's fear of his co-defendant, not financial ability to retain counsel. We also think it fair to say that his decision to plead was stimulated by other than financial considerations.

26

We find no sound reason for overturning the findings of fact and conclusions of law entered by the District Judge, October 21, 1954, who apparently devoted considerable time and attention to Piner's assertions long prior to hearing under § 2255 (See e. g. Piner's 11 page letter dated February 26, 1954 to Judge W. E. Steckler, contained in the record certified to this Court, which mentions various other motions and communications).

27

Raymond W. Gray, Jr., Esq. has unselfishly rendered professional services, as court-appointed counsel, meriting our commendation.

28

The judgment entered below, October 21, 1954, is affirmed.

29

Affirmed.