Moore, Friendly and Hays, Circuit Judges. Moore, Circuit Judge (dissenting).
Appellant, Lawrence Condon, was convicted in 1942, in County Court, Kings County, New York, on a plea of guilty to robbery in the second degree. He was sentenced by Judge Leibowitz to a 5-10 year term and was paroled after serving about four years. At the time of this conviction Condon was sixteen years of age.
In 1948 Condon was convicted in the same court on a plea of guilty to a new charge of robbery in the second degree; this crime was committed while he was on parole from the first sentence. On the basis of the 1942 conviction, Judge Leibowitz sentenced him as a second felony offender to a 25-30 year term. Later in 1948, in the Court of General Sessions, New York County, he was convicted on pleas of guilty to robbery in the first degree and attempted robbery in the first degree; these crimes were also committed while he was on parole. His 1942 conviction again formed the basis for sentencing him as a second felony offender and Judge Valente imposed a term of 15-30 years for each of the crimes. The two 15-30 year sentences run concurrently with each other and with his 25-30 year sentence. He is now serving these three 1948 sentences.
Appellant contends on this appeal that he was denied effective assistance of counsel at sentencing in 1942 and that this denial prejudiced him with respect to the 1948 sentences he is presently serving as a second felony offender.
Condon has brought numerous proceedings for relief on various grounds. The proceedings relevant to this appeal are set forth in the following paragraphs.
Appellant moved in 1952, in County Court, Kings County, to vacate his 1942 conviction. He contended that he had been inadequately represented by counsel with respect to his guilty plea and sentence. After holding a hearing, Judge Leibowitz denied the motion. Appellant moved for a rehearing on the ground that newly discovered evidence supported his claim of inadequate representation. This motion was also denied. The Appellate Division affirmed both orders without opinion, 282 App.Div. 722, 122 N.Y.S.2d 898 (1953) and the New York Court of Appeals denied leave to appeal.
Appellant applied for a writ of habeas corpus in the United States District Court for the Northern District of New York, raising the claims he had made in the state courts. The writ was denied without a hearing in 1955 on the ground that appellant had been afforded a full and fair hearing in the state courts and that their decision raised no constitutional issue. This court refused to grant a certificate of probable cause and dismissed the appeal from the order of denial for the reasons given by the district court.
In 1962 appellant moved in Supreme Court, Kings County, to vacate the 1948 judgment of conviction entered by Judge Leibowitz on the ground that the sentence as a second felony offender was improper. The motion was denied without a hearing, the Appellate Division affirmed without opinion, 21 A.D.2d 754, 252 N.Y.S.2d 39 (1964) and the United States Supreme Court denied certiorari, 379 U.S. 936, 85 S. Ct. 338, 13 L. Ed. 2d 347 (1964).
Apparently hoping to obtain a federal hearing on the ground that the 1952 state hearing did not meet the standards set forth in the then recent opinion in Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963), appellant in 1963 made a new application for a writ of habeas corpus in the district court where he had sought the writ in 1955. On the basis of its 1955 decision, the court denied the writ without holding a hearing and this court refused to issue a certificate of probable cause.
In 1966 appellant returned to the state courts, seeking a writ of error coram nobis in the Supreme Court, Kings County, on the ground, not previously the focus of his efforts for relief, that he was denied effective counsel at sentencing in 1942. Judge Leibowitz held a hearing, refused to credit Condon's testimony and denied the motion. The Appellate Division affirmed the order without opinion, 27 A.D.2d 990, 280 N.Y.S.2d 640 (1967), and the New York Court of Appeals denied leave to appeal.
Appellant then applied for a writ of habeas corpus to the United States District Court for the Eastern District of New York on the basis of this contention that he was not afforded adequate counsel at sentencing in 1942. He claimed that the denial prejudiced him with respect to the 1948 sentences as a second felony offender under which he is presently imprisoned. The court denied the writ without deciding whether counsel had been denied at sentencing. It held that the 1942 conviction, regardless of the sentence imposed, made appellant subject to sentencing as a second felony offender in 1948 and that counsel's performance at sentencing in 1942 therefore did not prejudice him as to his 1948 sentences. The court granted a certificate of probable cause and this appeal was taken from the order denying the writ.
The law relating to appellant's claim of inadequate counsel at sentencing has changed significantly since he raised it in the federal courts in his 1955 habeas corpus application. Thus the claim is properly before us. See Sanders v. United States, 373 U.S. 1, 15-17, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963).
The right to counsel at sentencing was clearly established by Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1967), and was made retroactive in McConnell v. Rhay, 393 U.S. 2, 89 S. Ct. 32, 21 L. Ed. 2d 2 (1968).
When appellant was brought before the court in 1942 for sentencing with his confederate, Farrell, he was sixteen years old. His assigned counsel who had represented him at his guilty plea was not present. The court assigned an attorney in the courtroom to represent Condon and sentencing followed immediately upon the assignment. The sentencing minutes reveal no consultation between appellant and his newly assigned counsel. The only statement counsel made to the court in appellant's behalf was "Condon has nothing to say."*fn1
Courts ought to take special pains to protect the rights of the very young who are brought before them charged with crime. See United States ex rel. Codarre v. Gilligan, 363 F.2d 961 (2d Cir. 1966). On this record we must conclude ...