United States of America Ex Rel. Joseph Frank Mazewski v. David N. Myers, Superintendent, State Correctional Institution, Graterford, Pennsylvania

359 F.2d 940

• Court: Court of Appeals for the Third Circuit
• Decided: May 3, 1966
• Docket: 15152_1
• Status: Published

Opinions

PER CURIAM.

This appeal from denial of an application for writ of habeas corpus emanates from a Commonwealth of Pennsylvania court conviction of appellant for burglary, larceny and receiving stolen goods.

The points on appeal are that the district court erred in finding that appellant had waived his right to counsel at trial and that he was denied right to counsel at his sentencing. These matters have been thoroughly and competently presented by counsel for appellant. From review of the record the facts as justifiably found by the district court make it very clear that appellant intelligently, competently and voluntarily waived his right to counsel at his trial and that his said waiver carried over through his sentencing which latter immediately followed his conviction. The trial transcript fully substantiates this. It reads as follows:

“Therefore, I find the defendant guilty of burglary and larceny.

“All right. Now, what about sentence ?

“Mr. Mazewski, do you want to tell me anything more before I sentence you?

“The Defendant: No, I don’t have anything else to say, your Honor.”

After the above, appellant’s previous criminal record was presented to the court who had it shown to appellant first. The latter stated it referred to him. The court asked him “Is there anything on here that is not correct?” Defendant answered “No, everything is correct.” The record revealed that since September 26, 1938 appellant had been confined most of the time for various offenses, primarily burglary and larceny, down to 1959 at which time he was sentenced by the state court for burglary and conspiracy to serve five to fifteen months in the county prison. The court, commenting that appellant had been incarcerated “for some twenty-five years now” then said:

“Stand up, Mr. Mazewski. Mr. Taylor, on behalf of the Commonwealth, says by reason of your previous criminal record, and you have been in jail a good many years, haven’t you, off and on ?

“The Defendant: Yes, I have. I would say so, your Honor.

“The Court: He suggests that I sentence you to the maximum, which would be ten to twenty years in the Eastern State Penitentiary. Now, what do you say in answer to him?

“The Defendant: I can’t say nothing. What could I say? There is nothing I could say.”

The order of the district court denying appellant’s petition for writ of habeas corpus will be affirmed.

FREEDMAN, Circuit Judge, dissents.