# United States of America Ex Rel. Ernest J. Bolognese E-9803 v. Joseph R. Brierley, Superintendent

> Court of Appeals for the Third Circuit · May 28, 1969 · 412 F.2d 193

URL: https://www.frixlaw.com/law-library/cases/9454645

## Case

- **Full name:** UNITED STATES of America Ex Rel. Ernest J. BOLOGNESE E-9803, Appellant, v. Joseph R. BRIERLEY, Superintendent
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** May 28, 1969
- **Citations:** 412 F.2d 193; 1969 U.S. App. LEXIS 12188
- **Precedential status:** Published
- **Opinion:** Concurrence by Stahl
- **Judges:** Seitz, Aldisert, Stahl
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9454645

## How later opinions describe it (automated extraction)

- holding that an intelligently made withdrawal of a new trial motion by defendant amounted to deliberate and conscious waiver of right to appeal

## Opinion text

STAHL, Circuit Judge
(concurring).
I agree with the result reached here because I believe the record clearly supports the conclusion that by expressly withdrawing the motion for a new trial and asking to be sentenced, coupled with the remarks he made to the trial judge, *199 appellant intentionally abandoned his right to have the state courts consider a direct appeal. But we should be alert to prevent problems of this nature from coming up again.
Controversies involving waiver of constitutional rights arise frequently and are often difficult of solution. In the kind of case involved here, where post-trial motions are a prerequisite to the taking of an appeal, fundamental notions of fairness require that the defendant be clearly and expressly apprised of the function of such motions and the consequences which follow if they are not made and pursued, viz., the loss of the right to appeal to a higher court. Certainly it is not requiring too much to have the trial court so inform the defendant, and such a procedure, when demonstrated by the record, would have the salutary effect of aiding habeas corpus courts, state and federal, in deciding troublesome waiver issues. Thus, I would lay down a rule that in future cases a waiver of a motion for a new trial (or its equivalent) in a criminal case may not be considered a waiver of appellate review unless the defendant is specifically informed by the court, or by his counsel before the court, that such consequence will follow.
As the majority opinion indicates, once a state affords the right to direct appeal in a criminal case, “the operation of the appellate apparatus must comport with the provisions of the Federal Constitution.” Douglas v. California, 372 U.S. 353 , 83 S.Ct. 814 , 9 L.Ed.2d 811 (1963), as interpreted, inter alia, by Comm. v. Wilson, 430 Pa. 1 , 241 A.2d 760 (1968), requires, particularly in the case of an indigent having appointed counsel, as here, that the convicted defendant be apprised both that he has a right to a direct appeal and that he may have the assistance of counsel to prosecute the appeal. The command to inform a defendant of his right to appeal certainly implies the concomitant duty to advise him that the waiver of or the failure to pursue a post-trial motion stamps out the opportunity for an appeal. 1
. Cf. Berry v. United States of America, 412 F.2d 470 (3d Cir. 1969), in which we imposed a strict requirement on district courts to inform defendants of the full consequences of a guilty plea.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9454645. Public record. Not legal advice.