Hosea PARKER, Appellant, v. UNITED STATES of America, Appellee, 248 F.2d 803

PER CURIAM. This is an appeal from the denial of a motion to vacate a sentence of imprisonment and award a new trial in a case in which appellant had been convicted under two indictments, one charging robbery of a bank and the other attempt to break into a postoffiee. He was given a sentence of ten years imprisonment in the bank robbery case and five years imprisonment in the case of attempt to break into the postoffice, the two sentences to run concurrently. Appellant was represented in the trial court by competent counsel appointed by the court.

Jury trial was waived and the case was heard by the judge without a jury. Appellant was convicted in September 1956 and duly sentenced and entered upon the service of his sentence, no appeal to this court having been perfected. In March 1957 he made the motion to vacate sentence and grant a new trial. In denying the motion, the judge filed an order setting forth the facts and showing that the motion was entirely without merit of any sort. Appeal from the denial of the motion was taken to this court and counsel was duly appointed to represent appellant in presenting the appeal.

We have considered not merely the brief and argument of counsel but the contentions of appellant appearing in the record and contained in letters addressed to the court and find no merit whatever in the appeal. The matters complained of could be reviewed only by appeal and not by motion under 28 U.S.C. § 2255. While relief is asked on the ground of newly discovered evidence, no such evidence is pointed out; and the granting of such a motion rests at all events in the sound discretion of the trial judge. Nothing in the record shows any abuse of discretion in the denial of the motion.

On the contrary, there can be no question but that it was properly denied. Counsel have filed a brief raising three questions: (1) whether there was sufficient evidence to sustain the charge of attempting to break into the postoffice; (2) whether sufficient opportunity was given defendant to make a statement in mitigation of punishment; and (3) whether the judge, in imposing sentence, properly took into consideration other crimes of which appellant had been guilty.

There can be no question on the record before us as to the sufficiency of the evidence on the charge with relation to the postoffice even if the question were properly raised; but, even if this were not true, the defendant would not be entitled to relief with regard thereto, as the five year sentence imposed for that crime runs concurrently with the ten year sentence for bank robbery, as to which no question is or can be raised. As to being heard by the court, the record shows that appellant took the stand and testified and his attorney was heard by the court in a plea for clemency.

As to other crimes committed by appellant, these were properly considered by the trial judge in fixing sentence, as they had direct bearing upon the character of appellant and the sort of sentence which ought to be imposed for the crime of which he had been convicted. Affirmed.