Appeal from the District Court of the United States for the Eastern District of Oklahoma; Eugene Rice, Judge.
Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.
Appellant, Clarence L. Batson, was found guilty by a jury in the District Court of the United States for the Eastern District of Oklahoma, on each of two counts of an indictment charging him with violations of the Dyer Act.*fn1 On June 22, 1940, sentence was imposed on each of the two counts. The judgment and commitment recited that "On this 22nd day of June, 1940, came the United States Attorney, and the defendant, Clarence L. Batson, appearing in proper person, and being represented by counsel appointed by the court, and * * * ."
After his commitment to the penitentiary, he filed a motion in the original case praying that the judgment and commitment be amended by striking therefrom the words "and being represented by counsel appointed by the court," and substituting the words "without counsel." In short, he seeks to correct the judgment to make it show that counsel was not present to represent him at the time he was sentenced. He has appealed from an order of the court denying the prayer of his motion.
The court, in its order, found that upon the request of appellant, counsel was appointed to represent him in the trial, that a vigorous defense and plea before the jury was made for him by his counsel, that appellant's counsel was not present at the time he was sentenced, that the court asked him if he had anything to say why sentence should not be pronounced on him, and that he replied he had nothing further to say. From this, the court concluded that he waived any right he had to have his counsel present at the time of sentence.
It is admitted that appellant's counsel was not present, and the record is therefore incorrect in reciting his presentence at the time of the sentence. The record should speak the truth, and as long as the matter was before the court the correction should have been made. We will not, however, reverse the judgment unless the error of the court in refusing to correct the record prejudicially affected substantial rights of the appellant. 28 U.S.C.A. § 391; Lewis v. United States, 9 Cir., 38 F.2d 406.
There is a sharp conflict in the authorities on the question whether the presentence of counsel for a defendant at the time of the sentence is necessary to the validity of the proceedings unless his presence is waived by the accused.*fn2
It is our conclusion that the decision of the case does not turn upon whether appellant was entitled as a matter of right to have his counsel present at the time he was called before the court for sentence. We therefore do not decide the question, but we do pause to say that we do not approve the practice of sentencing defendants in the absence of counsel. We believe that an accused should have the opportunity to be heard by counsel on the sentence to be imposed, and that a court should not impose sentence in the absence of counsel without expressly ascertaining that a defendant does not desire his presence. Many considerations influence the length of a sentence which is to be imposed, and a defendant should have the opportunity to have his attorney present any mitigating circumstances to the court for its consideration in determining the weight of the sentence.
Before the court sentenced appellant, it asked him if he had anything to say why sentence should not be pronounced. He replied that he had nothing further to say. His request for counsel to represent him at the trial clearly shows that he knew his rights in this matter, and there is no reason to believe that he forgot them when he was asked whether he had anything to say why sentence should not be pronounced upon him. Had he desired the presence of his counsel, it would have been an easy matter to so inform the court. He was vigorously defended throughout the trial. There is nothing to indicate that his counsel had refused to further repesent him or that the relation between them was other than pleasant. The absence of his counsel at the time of sentence in no wise prevented him from filing a motion in arrest of judgment or for a new trial. From all the record, we conclude that the appellant did not desire the prsence of his counsel at the time of sentence, and waived any right he might have had to have him present.