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P-7814 v. Fulcomer

argued: May 11, 1987.



Author: Gibbons

Before: GIBBONS, Chief Judge, MANSMANN, Circuit Judge and KATZ, District Judge*fn*


GIBBONS, Chief Judge:

Joseph D. McMahon appeals from the denial of his petition for a writ of federal habeas corpus by the United States District Court for the Western District of Pennsylvania. McMahon sought relief from a state criminal conviction claiming that his sixth amendment right to assistance of counsel had been unconstitutionally infringed. The district court held that the appellant had presented a "mixed" petition, containing both exhausted and unexhausted claims for relief, and thus denied his petition in accordance with Rose v. Lundy, 455 U.S. 509, 102 S. Ct. 1198, 71 L. Ed. 2d 379 (1982). We find that McMahon's petition for habeas corpus relief was not mixed. Moreover, because we find that McMahon did not knowingly and intelligently waive his right to counsel, we will reverse the district court's order denying the petition, and we will direct that the district court grant the writ.


On May 12, 1981, petitioner was arrested, along with his brother, by Pennsylvania State Police Trooper John Heary, in connection with the burglary of the home of Mr. and Mrs. Paul Laughenberger in Warren County, Pennsylvania. On May 14, 1981, petitioner applied for appointment of counsel, and on May 15, 1981, the Court of Common Pleas of Warren County referred to his application to the Public Defender's Office. On May 22, however, this application was revoked after petitioner's family retained private counsel, Phillip Jacobus, Esq. By July 14, 1981, petitioner was represented by another privately retained lawyer, William J. Kubiak, Esq., who was also representing petitioner's brother.

Attorney Kubiak represented the petitioner throughout the pre-trial proceedings of this case, including preliminary hearings, arraignment, a suppression hearing, and jury selection. On January 4, 1982, however, the day of petitioner's jury selection, Attorney Kubiak filed two motions on petitioner's behalf, one requesting a continuance, the other advising the court of petitioner's desire that Attorney Kubiak withdraw his appearance as petitioner's counsel.*fn1 The trial judge instructed Attorney Kubiak to advise the defendant that he viewed the motion as a delay tactic, and would not grant the continuance. So informed, petitioner still elected to discharge retained counsel.*fn2 The court entered an order granting defense counsel's motion to withdraw, denying petitioner's motion for a continuance, and appointing Mr. Jon Marti, Esq., Assistant Public Defender, to represent the defendant on a stand-by basis.

The record reflects that on January 6, 1982, the following colloquy occurred between petitioner, the district attorney, and the trial judge:

THE COURT: Let the record show that on this date the defendant, Joseph D. McMahon is present in the judge's chambers and the district attorney is present.

(To defendant): Mr. McMahon, the reason I have brought you here is to explain this procedure to you outside the hearing of the jury. Your jury was selected on January 4 and thereafter you discharged your counsel, Mr. William Kubiak, and I am going to try your case without counsel. I have appointed Mr. Jon Marti, the assistant public defender, on a stand-by basis and you can consult with him concerning the law if you so desire.

Now my duty as the judge is to advise you of the procedure. I have no duty to advise you of the law or to advise you on any decisions you should make. Mr. Marti will advise you on the law.

Now the procedure is the Commonwealth will proceed first with its case, present all the evidence it has to indicate your guilt. After that you have a right to present your defense. You have a right to present your defense. You have a right to testify in your own behalf and you have a right to present your witnesses. You need not testify unless you freely elect to do so. You have a right to remain silent and not testify. If you do testify you will be subjected to cross examination as will your witnesses.

You have a right to object to any evidence as the case proceeds if you think objection is proper. The Court of course will rule on it just as if you were represented by counsel. Otherwise the entire procedure will be just as if you were represented by counsel. In effect what you have done is discharge your counsel and the Commonwealth is prepared and has a right to proceed at this time in the case.

Do you have any questions, Mr. McMahon, about this procedure?

THE DEFENDANT: No, your Honor.

DISTRICT ATTORNEY: May it please the Court, I have two things, your Honor. I have made a notation to request the Court, since the termination of the services of his counsel, Mr. Kubiak, by the defendant, I felt it might be appropriate for a brief colloquy on that point so Mr. McMahon discloses on the record what had transpired between he and his former counsel, Mr. Kubiak. Secondly, I think Mr. McMahon should be advised he still has a right to plead guilty at this time rather than go to trial, if he so desires.

THE COURT: No, I really don't think that is necessary. I will ask you this, Mr. McMahon, I was advised by Mr. Kubiak that you in fact discharged him in this case.

THE DEFENDANT: Yes, sir, I did, prior to the time he says. I discharged him prior to the date he said I did.

THE COURT: Do you want to continue with your jury trial?

THE DEFENDANT: Yes, I do, your Honor.

THE COURT: Very well.

Record at 1-3.

Thereafter, the case proceeded to trial. Petitioner cross-examined several of the government's witnesses, but did not give an opening statement or present witnesses on behalf of the defense. On that same date, January 6, 1982, after forty minutes of deliberation, the jury returned a verdict of guilty as to all counts. On January 29, 1982, judgment of sentence was imposed and petitioner was sentenced to the custody of the Attorney General of Pennsylvania for a minimum period of seven years to a maximum period of fourteen years as to all counts.

No timely notice of direct appeal was filed either by petitioner himself or on petitioner's behalf. However, on February 15, petitioner filed a pro se petition for transcripts, averring that the requested transcripts "are for the purpose of effecting an appeal." On February 17, the petition was granted.

On March 8, 1982, petitioner filed a pro se petition pursuant to the Pennsylvania Post Conviction Hearing Act ("PCHA"), a petition was amended by motion to claim, as grounds for relief, that "petitioner was forced to go on trial without counsel, by the court." Motion to Amend Post Conviction Hearing Act Petition at 1, Commonwealth v. McMahon, Crim. No. 155, 156 (Pa. Ct. of Common Pleas 1982). On April 23, 1982, an Order was entered requiring the Commonwealth to show cause why relief should not be granted. On August 19, 1982, the PCHA court granted petitioner leave to file post-trial motions nunc pro tunc, and on September 9, 1982, petitioner filed a Motion for New Trial, a Motion for Arrest of Judgment, a Motion for Reconsideration of Sentence and a Motion for Disqualification of Trial Judge. By Order dated November 15, 1982, the court denied all motions.

Thereafter, petitioner took a timely appeal to the Superior Court of Pennsylvania, setting forth eight grounds for relief: (1) that his arrest was illegal; (2) that evidence was unlawfully seized from petitioner and his vehicle at the time of his arrest; (3) that the trial judge had improperly deemed the defendant to have waived his right to trial counsel without first conducting an on the record colloquy;*fn3 (4) that the Commonwealth had been improperly granted an extension of time in which to bring petitioner to trial, for purposes of Pennsylvania's speedy trial rule, Pa. R. Crim. P. 1100; (5) that the jury should have been instructed that it could not find petitioner guilty both of burglary and of receiving stolen property for conduct confined to a single criminal episode; (6) that the Commonwealth knowingly utilized perjured testimony to secure petitioner's conviction; (7) that the Commonwealth obstructed petitioner's right of appeal; and (8) that the court erred in denying petitioner's motion for recusal. The Superior Court affirmed the conviction of the lower court as to all issues except that relief was granted on the sentencing issue, and the case was remanded to the Court of Common Pleas for resentencing.

Finally, petitioner sought an allowance to appeal from the Supreme Court of Pennsylvania, in which he once again raised the claim that he was denied the right of counsel.*fn4 ...

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