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

McLAUGHLIN, Circuit Judge

(concurring) .

The first eleven typewritten pages of the dissent consist partly of the refusal to believe the trial transcript which shows beyond all doubt that appellant categorically, intelligently and understanding^ waived trial counsel. The balance of that section of the dissent is made up of speculation that appellant had some motivation, of which there is no evidential record or inference, for such waiver. No question whatsoever is raised in the petition for rehearing as to the validity of the waiver of counsel at trial. We note that it is the denial of rehearing that is used as the reason for the current dissent. In any event after eleven typewritten pages concerning the first question the point is expressly abandoned with respect to this appeal. The alleged excuse put forth for this is that the next point “seems to me decisive.” That next point starts off by saying, “It is clear, as the majority apparently concedes, that the trial on the plea of not guilty and the sentencing were separate critical proceedings, that petitioner was just as entitled to counsel at sentencing as he was at trial, and that prejudice need not be shown to obtain redress for its denial.” That 'statement is entirely mistaken in the context of this appeal. The majority opinion, though a per curiam, stated the exact record fact. We said:

“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.’ ”

Appellant was never denied legal representation. He had by the record at least four privately hired attorneys at one time or other in the state criminal proceedings. The trial date at the request of his attorneys was postponed several times. Finally, on June 19, 1963, the then set date, Mr. Baum, the attorney who was to represent appellant at his trial, had not received his agreed retainer and the Court was so advised by another of appellant’s lawyers, Mr. Reynolds. The latter offered to appear as defendant’s trial counsel. The defendant declined the offer and asked the trial judge to hear the ease without a jury, stating that he wanted to proceed without counsel. As is-seen-even from the short trial excerpt above quoted the defendant was no tyro with respect to criminal matters directly affecting him. The trial did not start until June 21st. In the interval, as borne out by the record, Mazewski did not get in touch with Mr. Baum, Mr. Reynolds or any other lawyer. There was no element of lack of funds in this connection. Mazewski as late as the habeas corpus hearing had $1200 worth of bonds held by the Warden for him. He also had testified at one of the trial postponements that he had $600 plus cash in his pocket. From the beginning, the state court judge was strongly advising Mazewski of his right to counsel. Back in April of 1963 when Mr. Jarvis, his attorney at the time, was withdrawing, the trial judge told Mazewski “ * * * we can appoint the Defenders for you right now.” Mazewski answered “Well I want to get my own attorney.” The next day the judge put the trial over to that June. He told Mazew-ski that, subject to illness or other important happening, the trial would go on at that time. He said to Mazewski, “Do I make myself clear?” The defendant answered “Yes, Sir.” The Court said, “So you better stick with the counsel you have.” On June 19,1963, two days before the trial, the Court told Mazewski:

“Well, the Supreme Court of the United States says that in any serious case you [sic] must afford counsel to you, if you want counsel.”

Mazewski answered, “I don’t want none, Your Honor.”

On June 21,1963 after Mazewski, in accordance with his insistence on a non jury trial, had executed the formal waiver in that regard the Court stated:

“Mr. Mazewski at the Bar of the Court, voluntarily stated his willingness to waive a jury and is fully advised of his legal rights, aware of his legal rights, and has consented to have this case proceed to trial without his having the benefit of counsel during the course of the trial. Is that correct, Mr. Mazewski?”

The defendant answered “Yes.”

The trial followed. At its conclusion Mazewski was found guilty of burglary and larceny. The judge next, in direct sequence as is above set out, took up the problem of sentencing. He said “Mr. Mazewski, do you want to tell me anything more before I sentence?” Mazew-ski’s answer was as we have noted. The judge talked to Mazewski about his long criminal record which defendant admitted. He advised him of the sentence suggested by the District Attorney and asked “Now, what do you say in answer to him?” Mazewski replied “I can’t say nothing. What could I say? There is nothing I could say.”

The above complete record history of the meticulously full, fair dealing by the Commonwealth Court with Mazewski in regard to an attorney appearing for him throughout this criminal trial including the sentencing cannot be honestly misinterpreted. The attorneys the Court wished to appoint for Mazewski would have so appeared. Any private attorney would have so appeared. Mazewski wanted none of them to represent him. That representation would have included the sentencing element. It is a warranted inference that Mazewski knew this well. It is a compelled conclusion from the facts which cannot be distorted that Mazewski was strongly urged to accept counsel from the Court for the entire trial court proceedings of which the sentencing, if it came to that, was an integral part. Actually, after the conviction, the dialogue at that time between the Court and Ma-zewski reveals still ample opportunity for Mazewski to change his mind if he had so wished and request an attorney then and there. He never changed his position. As he stated with reference to the trial facts and his conceded criminal record there was nothing that even he could say in mitigation.

It is well to make it thoroughly understood that the widest stretch of imagination cannot turn the decision before us into one which violates the principles of Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948) or Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961) or Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) or any proper holding in the general field relevant to the conclusive facts of this appeal. The state judge who tried the criminal case from which these proceedings arise completely accepted and conscientiously functioned under the great principles of the above mentioned opinions and their like.

There is no merit to the petition for rehearing. I concur in its denial by this Court.