If the Congress of the United States had intended that the trial court automatically refer a case to the legal Psychiatric Services prior to sentence, it would have said so. It therefore follows that whether or not a trial judge refers a matter to the Probation Office or the Legal Psychiatric Services is purely a matter of discretion.
Judge Wright, in Williams v. United States, supra, also made this statement:
'We conclude that appellant's trial was free of prejudicial error and that his conviction must be affirmed. In so doing, however, we do not foreclose the possibility of a further inquiry, by the proper authorities, whether his sentence should be served in the penitentiary or a mental hospital. Indeed, under the general law, 18 U.S.C. § 4241, and the District of Columbia Code, § 24-302, any prisoner found to be 'mentally ill' may be transferred to a mental hospital. It may well be that Williams is a proper candidate for such action.'
The defendant Leach, in this case, has the same rights as Williams.
Judge Wright stated that this court imposed the maximum penalty provided by statute. The District of Columbia Code of Laws, Title 22, § 2901, provides that any person convicted of robbery shall suffer imprisonment for not less than six months, nor more than fifteen years. However, § 3202 of Title 22 of the District of Columbia Code provides as follows:
'Committing crime when armed -- Added punishment. If any person shall commit a crime of violence in the District of Columbia when armed with or having readily available any pistol or other firearm, he may, in addition to the punishment provided for the crime, be punished by imprisonment for a term of not more than five years; upon a second conviction for a crime of violence so committed he may, in addition to the punishment provided for the crime, be punished by imprisonment for a term of not more than ten years; upon a third conviction for a crime of violence so committed he may, in addition to the punishment provided for the crime, be punished by imprisonment for a term of not more than fifteen years; upon a fourth or subsequent conviction for a crime of violence so committed he may, in addition to the punishment provided for the crime, be punished by imprisonment for an additional period of not more than thirty years. (July 8, 1932, 47 Stat. 650, ch. 465, § 2).'
This is the defendant's third conviction for armed robbery. It follows, therefore, that this court did not impose upon the defendant Leach the maximum sentence as provided by law. These two crimes were not the defendant's only crimes for, at the time of sentence, counsel for the defendant stated:
'At the age of 19 this man was convicted for robbery, was sentenced to five to forty years in Stillwater Prison. He spent almost nine years in that prison, was in solitary confinement for a period of one year, was released. After a period of 30 days, was again arrested and convicted of robbery, and spent a period of seven and a half years in prison. After he had been convicted for robbery he was held and tried for violation of the Dyer Act, served a three year sentence post-dated. He was transferred to Atlanta after serving seven and a half years on the robbery conviction. At the point of where he finished the three year sentence at Atlanta he was then held upon a detainer for auto theft in New Jersey involving the same automobile, and was sentenced seven to ten years in New Jersey. He served four years and seven months of that sentence. He got out, and was out for a period of about thirty-five days * * *.'
The defendant did not deny this statement and when asked by the court how many armed robberies he had committed, he answered 'I wouldn't be certain of the number.' These two statements constitute a waiver and dispense with the necessity of proof of prior felony convictions.
There is one thing remaining which merits comment. Judge Wright, in his opinion said:
'In the act of sentencing the judge approaches the attribute of the Almighty * * *.'
The responsibility of disposing of a man's liberty is not a light one -- but to relate it as an approach to 'the attribute of the Almighty' would appear to be engaging in sheer metaphor. Certainly no human being in the performance of any finite act, whether he be trial judge, appellate judge or justice of our court of last resort, can, or indeed should in any way equate it to any attribute of the Deity. There is no question but that the sentencing function of the trial judge is a most serious one and he must carefully determine the penalty which will be imposed upon the offender for his crime. However, Judge Wright states:
'But more importantly, for the offender and for society, in sentencing, the judge must consider a program of rehabilitation designed to preclude, so far as current learning can furnish a guide, a repetition of the crime.'
This court agrees that rehabilitation is a factor which a judge should consider in imposing a sentence but it is not the only factor, for the Congress of the United States has imposed sanctions upon those who commit crimes. It appears to me that there are those whose philosophy is to the effect that sanctions should be ignored and the only factor in sentencing is rehabilitation. Certainly every judge realizes that the rights of society should be considered together with the rights of the accused.
This court has carefully reconsidered the sentence imposed, as suggested by the appellate court. In light of the defendant's prior record, the Probation Officer's report and recommendation and, in view of the fact that the defendant was convicted of a very serious crime; and further, in view of the fact that there was no competent evidence of any kind or character immediately prior to, during, or after the trial, or prior to the imposition of sentence, that the defendant Leach was suffering from any mental illness, the sentence heretofore imposed by this court will not be disturbed.
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