Palmer v. Ashe/Dissent Minton

by Sherman Minton

United States Supreme Court

342 U.S. 134

Palmer  v.  Ashe

 Argued: Dec. 11, 1951. --- Decided: Nov 5, 1951

Mr. Justice MINTON, with whom The CHIEF JUSTICE, Mr. Justice REED and Mr. Justice JACKSON join, dissenting.

Petitioner's contention is that because of the special circumstances of his case the failure to provide him counsel was a denial of due process of law.

The following facts of record were before the Pennsylvania courts: Most of petitioner's life had been spent in Pennsylvania mental and correctional institutions. At the age of eight he was placed in Polk State School, a mental institution, from which he was discharged in less than two years. About a year after his discharge from Polk, he was sent at the age of eleven to Thorn Hill School on a charge of larceny. He was paroled in less than three years, returned in less than three months for delinquency and larceny, and finally discharged two years later. Approximately fourteen months after his discharge from Thorn Hill, he was sent to the Pennsylvania Training School at Morganza for breaking and entering. In two and one-half years he was paroled and in less than one year returned as a parole violator. He was discharged finally about four months later, December 18, 1930, his twenty-first birthday. On that day, the robbery and attempted robbery were committed for which petitioner was indicted, pleaded guilty and was sentenced to the penitentiary on February 18, 1931, for a term of five to fifteen years for each offense, the sentences to run consecutively. These are the sentences attacked by petitioner. He was paroled on the first sentence, attempted armed robbery, on August 26, 1942, to enable him to begin serving the armed robbery sentence. He was paroled on his second sentence September 19, 1947, returned as a parole violator April 1, 1949, and has since been incarcerated in the penitentiary.

In this record and petitioner's allegations in his petition for habeas corpus to the state courts must be found the 'special circumstances' which would warrant this Court to hold that he had shown sufficient probable cause why his conviction and sentencing, on February 18, 1931, were violative of the Due Process Clause.

Petitioner did not allege that at the time of sentencing he was mentally incompetent. His only allegation concerning mental incompetency is a recital in Paragraph 2 of his petition as follows: 'Your petitioner, a young irresponsible boy, having spent several years in Polk (because he was mentally abnormal) * * *.' Yet his discharge from Polk was more than ten years before he entered the plea of guilty now before us.

Petitioner did allege that when he pleaded guilty to the robbery indictments he thought he was pleading guilty to an offense of breaking and entering, as the police had told him when he was arrested that that was the charge. However, at the argument before this Court it was contended by the state, and not denied, that the record showed that at the time he pleaded guilty to the robbery indictments, petitioner also pleaded guilty to breaking and entering Leaders' Dry Goods Store, for which he received a suspended sentence. Petitioner also alleged that he discovered his mistake for the first time when he was being examined by the penitentiary's psychology department upon his admission. With that knowledge, he remained silent for eighteen years, a year and a half of which time he was on parole.

A continuous life of crime, extending throughout his entire youth, was the experience of this unhappy boy. One would think that such a propensity for crime would or should alert a court to his mental condition. He did not allege that he was mentally incompetent at the time he was serving almost nine years in Thorn Hill and Morganza, from 1921 until 1930. If he had shown any such infirmity, surely the officials in charge of these two institutions would have had the fact called to their attention and would have had him sent to a mental institution. The officials of Pennsylvania correctional institutions had such duty imposed by statute in 1927, so that the Morganza officials, where he was confined from 1927 to 1930, clearly had such duty as to petitioner. Pa.Laws 1927, p. 431, No. 281, Purdon's Pa.Stat.Ann., 1931, Tit. 50, § 51. This duty was imposed also upon the court that sentenced him. I cannot believe that the trial court which accepted his plea in open court would have done so if it had known or had any intimation that he was mentally defective. I think the courts of Pennsylvania had a right to assume under all the circumstances of record, which under Pennsylvania practice was before them at the time of sentencing and at the disposition of the rule to show cause in the habeas corpus proceedings, that petitioner was a mentally competent man of twenty-one years at the time he was sentenced. It was not alleged otherwise.

When petitioner entered his plea of guilty to the robbery indictments on February 18, 1931, did he know he was doing so? He alleged he did not; that he thought he was pleading guilty to breaking and entering Leaders' Dry Goods Store, as the police had told him that was why he was being arrested. Aside from the fact that he pleaded guilty also to the breaking and entering of Leaders' and received a suspended sentence thereon and that he first made known his error more than eighteen years after he discovered it, the courts of Pennsylvania in seeking to determine from the petition and the answers of the warden and district attorney whether there was probable cause for discharging him, took into consideration these further facts of record:

The record revealed that after petitioner was arrested, he was presented before a magistrate on an information filed by a police officer which charged petitioner and two others, separately, with armed robbery of David Brinn, a grocery store owner, and attempted armed robbery of Peter Rosella, also a grocery store owner. The victims appeared at the hearing and testified, together with two other witnesses. The three defendants were charged in two indictments with the armed robbery of Brinn and attempted armed robbery of Rosella, who were in court with several other witnesses, prepared to testify. Their names were endorsed upon the indictments as witnesses against the defendants. Petitioner's plea of guilty in open court to these indictments was also so endorsed.

I think it an allowable judgment for the Pennsylvania courts to conclude that petitioner's allegations, made eighteen years after trial, were improbable in the light of the matters of record, that probable cause did not exist for his discharge, and that the necessity of a hearing was not indicated. The courts had a right to assume, in the absence of allegations or record to the contrary, that petitioner was a mentally competent young man of twentyone years, and that his contention, made eighteen years late, that he had pleaded guilty to crimes other than he thought he was pleading to was a bit hard to believe, especially in the absence of an allegation that he did not commit the offenses charged in the indictments to which he pleaded guilty. For aught that appears in his petition, he did commit the offenses-he alleged only that he did not plead guilty to them. To me it appears plain that the record on the whole is against petitioner. Under the practice of Pennsylvania, petitioner is entitled to the writ of habeas corpus only when the court is satisfied there is probable cause for it to issue. Commonwealth ex rel. McGlinn v. Smith, 344 Pa. 41, 47-48, 24 A.2d 1, 4-5. On this record it was permissible for the courts of Pennsylvania to conclude that there was no probable cause shown why the writ should issue, and that a hearing was not necessary.

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