James A. JONES, Appellant, v. UNITED STATES of America, Appellee.
No. 666, Docket 34167.
United States Court of Appeals, Second Circuit.
Decided March 10, 1971.
443 F.2d 466
Submitted March 16, 1970.
This court took under advisement the case of United States v. Freeston, 7 Cir., 423 F.2d 1311 (1970), pending decision by the Supreme Court in Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed. 2d 532 (1970). Freeston was decided on an issue neither raised at the trial level nor on appeal. This court noted “striking parallels” between the facts before it and those before the Court in Gutknecht.
In the instant appeal, there are no such similarities. In Weller, defendant‘s attorney requested permission of the local board to be present during defendant‘s personal appearance to advise him of his rights. The board relying on
In the instant appeal, it is undisputed that appellant did not request, by himself or through an attorney, representation by counsel before the local board. Counsel excuses such failure on the theory that any such request would have been futile. There is nothing in the record to indicate that such request would have been made even if
The judgment of conviction is accordingly affirmed in all respects.
Affirmed.
Edward R. Neaher, U. S. Atty., for the Eastern District of New York, Bruce W. Solow, Asst. U. S. Atty., for appellee.
Before MOORE and FEINBERG, Circuit Judges, and BONSAL, District Judge.*
FEINBERG, Circuit Judge:
James A. Jones appeals from an order of the United States District Court for the Eastern District of New York, Matthew J. Abruzzo, J., denying without a hearing Jones‘s motion under
Jones contends that his plea was taken in violation of
The record of the proceedings before Judge Mishler establishes appellant‘s factual assertion. Jones was advised at the time he took the plea that “the Court has the power to and may sentence you to a term of imprisonment,” but the judge failed either to state the limits of possible punishment or to inquire whether Jones had acquired that information from other sources. The question becomes whether the maximum sentence is a “consequence” of which the defendant must be aware before he pleads guilty under Rule 11.
Although this narrow issue is, to our knowledge, one of first impression, there are a number of cases involving the effect of failure to advise a defendant pleading guilty of the maximum possible punishment. Several other courts have
Our confidence in such an assertion is further buttressed by two Rule 11 decisions in our own circuit. In Bye v. United States, 435 F.2d 177 (2d Cir., 1970), the district court outlined the range of possible sentences but failed to inform Bye that parole was not available for the offense charged. We held there that, under Rule 11, a defendant in a narcotics case must be aware that ineligibility for parole is a consequence of conviction before he is allowed to plead guilty. And in United States v. Vermeulen, 436 F.2d 72 (2d Cir., 1970), appellant claimed that a plea of guilty to a two count information should be set aside as violating Rule 11 because he was not told that he could receive consecutive sentences on the two counts. In an opinion by Judge Moore, we held that appellant was in fact sufficiently advised, but we assumed that Rule 11 required that a defendant be “made aware of the maximum possible sentence that might be imposed.” Id. at 75. Accordingly, we hold that the maximum possible sentence is a “consequence” within the meaning of Rule 11 and that a guilty plea cannot be accepted under that rule unless the court determines that the defendant is aware of the maximum penalty for the offense.
This holding does not, however, require vacation of Jones‘s guilty plea. Since his plea was taken prior to April 2, 1969, the Supreme Court‘s holding in McCarthy v. United States, 394 U.S. 459, 468-472, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), that noncompliance with Rule 11 requires automatic vacation of the guilty plea does not apply. Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969) (per curiam). The Government contends that Jones actually had been informed by his attorney as to the maximum penalty for bank robbery. The proper remedy in the face of such a factual issue is to remand to the district court for a hearing to determine whether Jones was aware of the maximum possible sentence at the time of his guilty plea and, if not, whether Jones would not have pleaded guilty if he had been so aware, as he now asserts. See Bye v. United States, supra, 435 F.2d at 180-181; Manley v. United States, 432 F.2d 1241, 1245 (2d Cir. 1970) (en banc) (dictum).
Reversed and remanded.
MOORE, Circuit Judge (dissenting):
The errors specified are couched in generalities and are (1) the sentencing court did not ascertain that the Court which had accepted the guilty plea had complied with Rule 11 (F.R.Cr.P.) and (2) there should have been an evidentiary hearing. More specifically, these alleged errors resolve themselves into the assertion that the Court did not reveal the “allowable range of punishment.” The question of whether there was a factual basis for the plea to the satisfaction of the judge is not in issue.
There can be no doubt (1) that Jones was represented by counsel; (2) that he was adequately advised of the charges against him; (3) that he entered his plea voluntarily; and (4) that he was informed that if he pleaded guilty he
I realize that in Bye v. United States, 435 F.2d 177 (1970), we held that failure to inform a defendant that parole was not available on a narcotics sentence was a “consequence.” In United States v. Vermeulen, 436 F.2d 72 (1970), we held that failure to inform a defendant that he might receive consecutive sentences on his pleas of guilty to two counts of an information where he had been advised of the potential maximum sentence on each count was not a ground for vacating the plea.
Although in the future it will impose but a slight burden on the district court judge to add the requirement of stating the range of the possible sentence, I envision certain adverse possibilities. Plea bargaining (a practice recognized as essential not only in the disposition of many criminal cases but also one beneficial to the guilty defendant) would be seriously impaired. The sentencing judge could hardly be expected to announce: “The maximum sentence is twenty years but I only intend to give you five.” Yet if only the range is stated, a defendant might well have qualms about the fulfillment of his bargain. I, therefore, would not add in this case the requirement of a statement of the range of the possible sentence to the ever-increasing list of “consequences.” There must be some areas in which the attorney-client pre-plea conference (as here) must be presumed to have been adequate. Otherwise all plea-withdrawal petitions will merely relitigate the original sentencing proceeding.
I would affirm the decision below.
* Of the Southern District of New York, sitting by designation.
States, 10 Cir., 391 F.2d 760 (1968); United States v. Dicks, 4 Cir., 392 F. 2d 524 (1968). But cf., Goldberg v. Kelly, 397 U.S. 254, 270, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).