439 F2d 781 Farries v. United States

439 F.2d 781

Keith FARRIES, Appellant,

No. 17509.

United States Court of Appeals, Third Circuit.

Submitted Jan. 11, 1971.
Decided March 15, 1971.

Keith X. Farries, pro se.

Samuel J. Orr, III, Asst. U.S. Atty., Pittsburgh, Pa. (Richard L. Thornburgh, U.S. Atty., Pittsburgh, Pa., on the brief), for appellee.

Before SEITZ and VAN DUSEN, Circuit Judges, and MASTERSON, District judge.



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This is an appeal from a denial by the district court of a motion to vacate sentence pursuant to 28 U.S.C. 2255 (1964). On June 15, 1966, defendant Farries was found guilty in the district court by a jury on two counts of an indictment charging violations of 18 U.S.C. 2113(a) (1964) and 18 U.S.C. 2113(d) (1964). On June 16, 1966, defendant was sentenced under 18 U.S.C. 4208(b) (1964) and given the maximum sentence provided for in 19 U.S.C. 2113(a) and (d) (1964) (20 and 25 years, respectively) on each count in order that a study could be made pursuant to 18 U.S.C. 4208(c) (1964), the maximum sentence being subject to reduction in accordance with 18 U.S.C. 4208(b) (1964). At the June 16, 1966, sentencing defendant was advised of his right to appeal. On September 28, 1966, after the results of the study had been received, the sentence on each count was reduced to 15 years with eligibility for parole at such time as the board of parole might determine.1 At the September 28, 1966, sentencing defendant was not advised of his right to appeal. Rule 32(a) (2) of the Federal Rules of Criminal Procedure became effective on July 1, 1966. It provides in relevant part:


Notification of Right to Appeal. After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of his right to appeal and of the right of a person who is unable to pay the cost of an appeal to apply for leave to appeal in forma pauperis.


The September 28, 1966, reduction of sentence was clearly the imposition of a sentence from which an appeal could be taken. United States v. Behrens, 375 U.S. 162, 84 S.Ct. 295, 11 L.Ed.2d 224 (1963); Corey v. United States, 375 U.S. 169, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963). Since defendant was not advised of his right to appeal at the September 28, 1966, imposition of sentence, the requirements of Rule 32(a)(2) were not met. The proper remedy under these circumstances is to remand to the district court for vacation of the September 28, 1966, sentence and a resentencing,2 which will then mark the beginning of the time limit for filing a notice of appeal. Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969). See United States v. Deans, 436 F.2d 596 (3d Cir., Filed Jan. 6, 1971).


Defendant also claims that he was denied effective assistance of counsel by virtue of his court-appointed counsel's alleged failure to advise him of his right to appeal. Since defendant will now have an opportunity to perfect an appeal, it is unnecessary for us to consider this claim.


Since a new sentence must be imposed, we note that recent decisions of this court require that a single sentence (rather than separate sentences on the two counts) be imposed in the situation presented by this record which may be no greater than the 15-year sentence of September 28, 1966.3 See United States v. Corson, No. 18,862 (3d Cir., filed Jan. 4, 1971); United States v. Welty, 426 F.2d 615, 616 (3d Cir. 1970).


The July 3, 1968, order of the district court, denying the motion to vacate sentence, will be reversed, and the case remanded for further proceedings in accordance with this opinion.


In both sentences (June and September), the sentence was imposed on count 2 (18 U.S.C. 2113(d) (1964)) first, and the subsequent imposed sentence on count 1 was made concurrent with that imposed on count 2. Petitioner was represented by the same counsel appointed under the Criminal Justice Act at the time of both sentencing proceedings (Document 13)

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At this resentencing, petitioner shall be informed of his appeal rights as required by F.R.Crim.P. 32(a). See Nance v. United States, 422 F.2d 590, 592 (7th Cir. 1970)


This sentence was well within the maximum term specified in 18 U.S.C. 2113(d) (1964)