Does the appellant have a right to counsel at sentencing?

However, the Government suggests that in addition, the colloquy which took place before sentence was imposed compels the conclusion that appellant knew of his right to counsel at that time. Again, there is no basis for such an inference. Indeed, from the manner in which the judge quickly bypassed the matter of assigned counsel, the contrary seems true. To suggest that a defendant awaiting the imposition of sentence is under an obligation to inquire of the judge whether he has a right to counsel ignores the well known fact that the very nature of those proceedings tends to awe the defendant into silence. Indeed, the very tense atmosphere existing at the time of sentencing, is one of the basic reasons for the right to counsel on that occasion. And as we have said, mere failure to request counsel does not establish waiver. Walker v. Johnston, supra.

Finally, the Government contends that the appellant's previous experience in

[297 F.2d 603]

New York criminal cases justifies an inference that he knew of his right to counsel in the federal proceeding. But in view of the possibility of differences between New York and federal procedure,² resulting in part from different constitutional requirements, see U.S. ex rel. Carson v. Wilkins, 292 F.2d 321, 323 (2nd Cir. 1961), this previous experience might well be found to support an inference that appellant thought he had no right to counsel. At least, the inference urged by the Government is not inescapable, and appellant cannot be deprived of his right to be heard on this question.

[297 F.2d 603]