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United States v. Hewitt

as amended february 2 1976.: December 18, 1975.



Gibbons, Circuit Judge, Markey,*fn* Chief Judge of Court of Customs and Patent Appeals and Weis, Circuit Judge.

Author: Weis

WEIS, Circuit Judge.

Petitioner is a state prisoner who alleges a denial of due process because there was no evidentiary hearing to determine his competency before he pleaded guilty to certain charges and stood trial on others. We conclude that a psychiatric report submitted to the trial judge raised such substantial questions about petitioner's mental soundness that a hearing was required. Accordingly, we vacate and remand to the district court with instructions so that the state may conduct the necessary proceedings.

In March, 1971, petitioner McGough was indicted on various charges, including counts of assault with intent to kill, arson, and aggravated robbery, all arising from a particularly brutal incident in Philadelphia on December 23, 1970. When the case was first called for trial on April 7, 1971 in the state Court of Common Pleas, a competency examination was ordered sua sponte. On April 20, 1971, pursuant to this directive, two psychiatrists, Drs. Francis H. Hoffman and Alex von Schlichten, submitted an evaluation based on an interview with the petitioner and a review of file material from previous contacts. They stated that the petitioner was not competent to stand trial at that time and recommended that he be committed for a period of observation and evaluation.

The court accepted this suggestion and ordered that McGough be committed for sixty days so that further studies could be completed. On July 12, 1971, Dr. Perry A. Berman submitted his report based on the sixty-day observation and opined that the petitioner was competent to stand trial. This evaluation confirmed the earlier diagnosis of Hoffman and von Schlichten that the petitioner suffered from minimal organic brain damage, chronic latent schizophrenia and sociopathic personality structure. Nonetheless, Dr. Berman stated that the petitioner was "currently competent to stand trial."

On September 20, 1971, the case was again called for trial. Defense counsel then advised the court that McGough would plead guilty to two charges and proceed to trial, non-jury, on the others. The presiding judge noted for the record that he had reviewed the psychiatric report of July 12, 1971. He questioned petitioner about his educational background and the medication that he had been receiving. The judge also inquired of defense counsel whether McGough had been able to cooperate, whether he had answered whatever had been asked, and if he had asked any questions. On receiving the lawyer's affirmative answers, the court interrogated the petitioner in the usual fashion to establish the voluntariness of his plea and a knowledgeable waiver of his right to a jury trial. The court made no explicit findings of competence on the record.

After hearing the evidence, the trial court found the defendant guilty and ordered the preparation of a presentence report. This report, which included another psychiatric evaluation, was reviewed at the sentencing hearing held in November, 1971. A prison term was imposed, with a recommendation that petitioner be confined to Farview State Hospital although the judge noted "it does not appear at this very moment [McGough] has any kind of a psychiatric problem."

In 1973, McGough filed a petition under the Pennsylvania Post Conviction Hearing Act and the matter was assigned to another judge of the Common Pleas Court. At the post conviction hearing, counsel for petitioner introduced the psychiatric reports and called Dr. Robert Blumberg to testify. Dr. Blumberg said that, after a review of the records and his examination of the petitioner on April 3, 1973, he believed that McGough had not been competent to stand trial on September 20, 1971.

The hearing judge denied relief, finding "as a fact that the defendant was mentally competent to enter a guilty plea and stand trial on September 20, 1971." On appeal, the Superior Court of Pennsylvania affirmed without an opinion and the state Supreme Court denied allocatur.

Petitioner then filed this habeas corpus action in the district court. The district judge adopted the report of the United States Magistrate, finding that the fact of competency had been properly determined in the state post conviction proceedings and that no further hearing was required in the federal courts. The court thereupon denied the petition.

The conviction of a person while he is legally incompetent violates due process. Drope v. Missouri, 420 U.S. 162, 43 L. Ed. 2d 103, 95 S. Ct. 896 (1975); United States v. Bishop, 350 U.S. 961, 100 L. Ed. 835, 76 S. Ct. 440 (1956); 4 W. BLACKSTONE COMMENTARIES 24 (9th ed. 1783).*fn1

The test for competency to stand trial is whether the defendant has "sufficient present ability to consult with his lawyer with a reasonable degree of understanding - and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 4 L. Ed. 2d 824, 80 S. Ct. 788 (1960); Commonwealth ex rel. Hilberry v. Maroney, 424 Pa. 493, 227 A.2d 159 (1967).*fn2

The state court recognized and applied these principles. We do not differ on the substantive law but, rather, on the lack of ...

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