341 F.2d 277 | 3rd Cir. | 1965
On April 23, 1958, appellant, LeRoy DeGregory, a white male 47 years of age, was indicted under 18 U.S.C. § 371, with nine others for conspiring to violate 18 U.S.C. § 1461, which, prior to the August 28, 1958 amendment, declared it a crime to knowingly deposit for mailing or delivery, or aid in the circulation or disposition, of obscene matter. On May 19, 1958, the appellant and four of the defendants were arraigned in open court. Three of the defendants plead not guilty, the other guilty. Appellant, not represented by counsel, expressed a desire to enter a plea of “non vult”.
On August 9, 1962, in the fifth year of his probation, the appellant, then represented by counsel, filed a motion under 28 U.S.C.A. § 2255, the Federal habeas corpus section of the Judicial Code, to have his conviction and sentence set aside and to discharge him from probation and the fine repaid to him. The asserted ground for the motion was that his sentence was void because (1) he did not plead to the indictment when he answered “non vult”, and (2) he was not represented by counsel at the time of arraignment, and he lacked understanding of the charge against him at that time. In the alternative, he asked that he be permitted, in order to correct manifest injustice to • him, to withdraw, under Rule 32(d) of the Federal Rules of Criminal Procedure, his plea of “nolo con-tendere” entered for him by the deputy clerk of court after his plea of “non vult”, and to enter a plea of not guilty. He was given a hearing on the motion on December 10, 1962. The same United States District Judge, C. William Kraft, Jr., who presided at this hearing, also had presided at appellant’s arraignment and passed sentence upon him.
Before the district court ruled on the motion, appellant’s probationary sentence expired on June 16, 1963. The district court, on July 22, 1963, dismissed the motion as being moot. However, the court, deeming “it just to determine the factual and legal issues presented”, also-found against the appellant on the merits. 220 F.Supp. 249 (E.D.Pa.1963). Appellant has appealed from the judgment of dismissal.
The Government contends that appellant’s claim became moot on June-16, 1963, because he was not, on and' after that date, a “prisoner * * * in custody * * * in violation of the-Constitution * * * of the United States” within the meaning of § 2255. Appellant was serving his probationary sentence at the time he filed his motion; in the district court. Such restraint was; sufficient “custody” to enable him to seek relief under § 2255. The remedy under that section is as broad as it is under habeas corpus. United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed; 232 (1952); Sanders v. United States, 373 U.S. 1, 13, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). And if the restraint of a state court imposed probationary sentence satisfies the jurisdictional requirement for bringing habeas corpus under 28 U.S.C.A. § 2241: Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963), it satisfies that requirement for filing a motion under § 2255. But. when appellant completed his sentence, his claim under that section became moot. Heflin v. United States, 358 U.S. 415, 418, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959), and' opinion of Mr. Justice Stewart at 420-79 S.Ct. at 454; Parker v. Ellis, 362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963 (1960).
The first clause of Rule 32(d) expressly provides that a motion for the withdrawal of a plea of guilty or nolo contendere may be made before sentence or the suspension of the imposition of sentence. Prior to that time the allowance of the withdrawal is within the discretion of the district court. Nagelberg v. United States, 377 U.S. 266, 84 S.Ct. 1252, 12 L.Ed.2d 290 (1964); Lott v. United States, 367 U.S. 421, 426-427, 81 S.Ct. 1563, 6 L.Ed.2d 940 (1961); United States v. Shneer, 194 F.2d 598 (C.A.3, 1952); United States v. Lester, 247 F.2d 496 (C.A.2, 1957); 4 Barron on Fed. Pract. & Proc. (Rules ed.) § 2264. The denial of the motion made prior to sentence is subject to review on appeal. United States v. Colonna, 142 F.2d 210 (3 Cir. 1944); Kadwell v. United States, 315 F.2d 667 (C.A.9, 1963). And the district court may be directed to permit the defendant to change his plea. Dandridge v. United States, 356 U.S. 259, 78 S.Ct. 714, 2 L.Ed.2d 757 (1958); Gearhart v. United States, 106 U.S.App.D.C. 270, 272 F.2d 499 (1959); Kadwell v. United States, supra. The second clause of Rule 32(d) conditions the allowance of the withdrawal of a plea of guilty or nolo contendere after sentence upon a showing that manifest injustice will result unless the request is granted. Sullivan v. United States, 348 U.S. 170, 174, 75 S.Ct. 182, 99 L.Ed. 210 (1954). The burden of showing that manifest injustice will result is on the defendant. United States v. Shneer, supra. The reason for the difference in treatment of the motion before and after sentence is succinctly set forth in Kadwell v. United States, supra, 315 F.2d at 670. The district court’s ruling on such a motion is appealable, and an appellate court will reverse a refusal to allow the withdrawal only if it can say that manifest injustice would otherwise be done.
At the arraignment on May 19, 1958, the deputy clerk of court asked appellant
“If you feel that you need counsel —we don’t want any plea entered on the apparent representation that inferentially you might not enter such a plea if you had counsel but that you can’t afford counsel and, therefore, you are — ■”
The appellant interrupted this explanation by exclaiming that he preferred to let himself be at the mercy and compassion of the court.
When the court asked him did he understand that a plea of non vult if accepted by it was in legal effect the same thing as a plea of guilty, he replied: “That’s right”, and “I do not wish to make an issue of it.” Then the court asked him if he understood that it had the right to impose sentence and need not make any determination of his guilt or innocence because his plea in effect admitted guilt. Again he replied, “That’s-right.” Then the transcript shows the-following:
“The Court: All right, take his plea.
“Mr. Zapitz: Here, sign the waiver of counsel,7 Mr. DeGregory. By signing this you indicate to the Court that you wish to enter your plea without benefit of counsel. Do you understand that?
“Defendant DeGregory: Yes, sir.
“Mr. Zapitz: Will you sign on this-line, please.
(Defendant DeGregory signs-counsel waiver.)
“Mr. Clark [deputy clerk of court]: LeRoy DeGregory, you are-charged in this indictment with conspiracy to mail and cause to be mailed obscene letters and pictures. How say you ?
“Defendant DeGregory: Non vult.
“The Court: Let the plea be so entered.”
However, his plea was entered on the-District Court’s Criminal Action Docket under date of May 19, 1958, as “Nolo Contendere.”
After the pre-sentence investigation had been made and prior to sentencing
One of the grounds for his motion to withdraw his plea and set aside the conviction and sentence is that his oral plea of “non vult” is not a plea upon which a judgment of conviction may be rendered and sentence imposed. We agree with the district court that the assertion of this ground is nothing more than an attempt to exalt form over substance. He argues that when the district court accepted his plea of “non vult”, it went beyond its jurisdiction, and the effect of its action was to deprive him of a valid arraignment thereby rendering the conviction and sentence void. Rule 11 of the Federal Rules of Criminal Procedure provides for but three pleas: not guilty, guilty and nolo contendere.
The second ground for his motion was that he did not understandingly waive his right to the assistance of counsel. Rule 44 of the Fed.Rules of Crim.Proc. provides :
“If the defendant appears in court without counsel, the court shall advise him of his right to counsel and*284 assign counsel to represent him at every stage of the pi’oceeding unless he elects to proceed without counsel or is able to obtain counsel.”
This rule is designed to conform to the pronouncement in the Sixth Amendment to the Constitution, as interpreted by the Federal courts prior to the enactment of the Federal Rules of Criminal Procedure in 1946,
Arraignment is an important step in a Federal criminal proceeding. Von Moltke v. Gillies, 332 U.S. 708, 723, 68 S.Ct. 316, 92 L.Ed. 309 (1948). Also see Hamilton v. State of Alabama, 368 U.S. 52, 54, n. 4, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961). The need for the assistance of counsel may exist at the time of arraignment. Massiah v. United States, 377 U.S. 201, 205, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); Carter v. People of State of Illinois, 329 U.S. 173, 174, 67 S.Ct. 216, 91 L.Ed. 172 (1946); Moore v. State of Michigan, 355 U.S. 155, 165, 78 S.Ct. 191, 2 L.Ed.2d 167 (1957); Powell v. State of Alabama, 287 U.S. 45, 57, 69, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Von Moltke v. Gillies, supra, 332 U.S. at 721, 68 S.Ct. 316; Williams v. Kaiser, 323 U.S. 471, 475-476, 65 S.Ct. 363, 89 L.Ed. 398 (1945); Evans v. Rives, 75 U.S.App.D.C. 242, 126 F.2d 633, 641 (1942). “When this right is properly waived, the assistance of counsel is no longer a necessary element of the court’s jurisdiction to proceed to conviction and sentence. If the accused, however, is not represented by counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his life or his liberty.” Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461 (1938). A plea of guilty is not a waiver of this right. Von Moltke v. Gillies, supra; Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830 (1941); United States ex rel. Craig v. Myers, 329 F.2d. 856, 858 (C.A.3, 1964); Evans v. Rives,, supra, 126 F.2d at 637. And the signing of a waiver of counsel by the defendant, does not foreclose further inquiry into-whether there has been an intelligent, and competent waiver of counsel. Von Moltke v. Gillies, supra; Snell v. United States, 174 F.2d 580 (10 Cir. 1949); though the obtaining of such a signing-is desirable when the assistance of counsel is waived. United States v. Steese, 144 F.2d 439, 441 (3 Cir. 1944).
In support of his claim that he did not. understandingly waive his right to counsel, appellant, at the hearing held on December 10, 1962, testified that he did not fully understand that he had the-right to counsel at the arraignment, that he was under the impression that in order to have counsel he had to pay for his services, and that he asked to be at the-mercy of the court because he felt that without financial necessity of paying a competent lawyer he would not be properly represented. He also testified that he-did not understand what the indictment said, that he did not believe it was a. serious charge, and that he was incorrect in having said that he believed he did.
Appellant argues that the real reason why he used the words “non melt” was because of his economic inability to engage counsel even though he felt he needed one if he were to contest the-charge against him. The district court specifically advised him that it did not. want to accept his plea if it were made on that basis, i. e., that he would not. make such a plea if he had counsel but could not afford one. True, the court did not find that appellant was unable to afford counsel at the time of arraignment. But assuming that he was without sufficient funds at that time, he never
The district court found that at the time of appellant’s arraignment he was a well-read, intelligent, articulate, mature person with a high school education, that he was gainfully employed at $76 per week, that his avocations were music composition and song writing, and at the time of his arrest he was living in New York City. “ * * * When called for arraignment on May 19, 1958, he was quite aware of his right to have counsel and understandingly expressed his wish to plead to the indictment without assistance of counsel. Thereupon, with knowledge and complete understanding of its content and import, the defendant voluntarily executed a written waiver of appointment of counsel * * * ”. 220 F.Supp. at 250. It also found that his testimony to the effect that he did not know at the time of arraignment he had the right to have counsel appointed was untrue.
Though the district court did not in words conclude that appellant’s expression of his desire to dispense with the assistance of counsel was voluntary, we think such a conclusion is implied. Appellant made no allegations, nor is there any hint in the record, of any threats or acts of a coercive nature inducing his voicing of a wish to plead without the advice of counsel. Under the circumstances, we cannot say that the court was not justified in reaching the conclusion that it did.
However, the fact that an accused makes known his desire to do without the assistance of counsel and pleads guilty does not end the court’s responsibility toward him. Before there can be a waiver of counsel, the accused must have an understanding of the charge, and the range of allowable punishments under the statute with which he is charged with having violated. Von Moltke v. Gillies, supra, 332 U.S. at 724, 68 S.Ct. 316; Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009; United States v. Cariola, supra, 323 F.2d at 186; United States v. Lester, 247 F.2d 496, 499-500 (C.A.2, 1957). The second sentence of Rule 11 of the Fed.Rules Crim.Proc. provides: “The court may refuse to accept a plea of guilty and shall not accept the plea without first determining that the plea is made * * * with understanding of the nature of the charge.”
The single count indictment was not complex, despite the number of defendants, and the averment of seven overt acts allegedly done in pursuance of the conspiracy. It named him as one of the conspirators, and a participant in one of the seven listed overt acts, being one to whom an obscene letter was mailed by another defendant. The conspiracy described was a simple one. The district court found that “Between April 23 and May 19, 1958, the defendant was served with and read a copy of the indictment from which he fully comprehended the nature of the charge against him.” and that, “The defendant’s testimony, in support of his pending petition, to the effect that he did not, at the time of his arraignment, understand the nature of the charge against him or comprehend its seriousness * * * was untrue.” 220 F.Supp. at 250-251.
The court said nothing to appellant at the arraignment about the possible punishment he could have received as the result of its acceptance of his plea to the charge against him. Yet he
At the December 10, 1962 hearing, appellant also stated that he had always felt he was innocent of wrongdoing and that after he had consulted counsel he felt even more so that he was innocent of the charge and that he never received the letter as charged in the indictment. Where there has been a showing that the defendant is entitled to withdraw his plea of guilty or nolo contendere, the fact that he does not assert his innocence of the charge against him should not prevent the allowance of the withdrawal. Kercheval v. United States, supra, 274 U.S. at 224, 47 S.Ct. 582 (1927). However, the mere assertion by a defendant that he was innocent of the charge when he made his guilty plea does not require the district court to allow his motion to withdraw his plea.
Although at his sentencing, appellant appeared in court without counsel, he does not complain that his sentence is voidable for that reason. Nevertheless, we do not think it amiss to point out that it has been held that waiver of counsel at the time of arraignment is an implied waiver of that assistance during the sentencing proceeding. See Davis v. United States, 226 F.2d 834, 840 (C.A.8, 1955), cert. denied 351 U.S. 912, 76 S.Ct. 702, 100 L.Ed. 1446.
In summary, we cannot say that manifest injustice would result from the district court’s dismissal of appellant’s motion to withdraw his plea under Rule 32(d). Were we to consider his motion as having been a request for relief under the all-writs section, we would reach the same conclusion as we have here.
Accordingly, the judgment of the District Court will be affirmed.
. “Non Vult Contendebe. Lat. He (the defendant in a criminal case) will not contest it. A plea legally equivalent to that of guilty, being a variation of the form ‘nolo contendere’, (q.v.) and sometimes abbreviated ‘non vult.’ ” Black’s Law Diet. (3rd ed.)
. “Although it is said that a plea of nolo contendere means literally ‘I do not contest it,’ Piassick v. United States, 5 Cir., 253 F.2d 658, 661, and ‘is a mere statement of unwillingness to contest and no more,’ Mickler v. Fahs, 5 Cir., 243 F.2d 515, 517, it does admit ‘every essential element of the offense [that is] well pleaded in the charge.’ United States v. Lair, 8 Cir., 195 F.2d 47, 52. Cf. United States v. Frankfort Distilleries, 324 U.S. 293, 296, 65 S.Ct. 661, 89 L.Ed. 951. Hence, it is tantamount to ‘an admission of guilty for the purposes of the case,’ Hudson v. United States, 272 U.S. 451, 455, 47 S.Ct. 127, 129, 71 L.Ed. 347, and ‘nothing is left but to render judgment, for the obvious reason that in the
. “While there may be a considerable overlap, the concept of ‘manifest injustice’ under Rule 32(d) permits the judge a greater latitude than the requirements of constitutional ‘due process’. See United States v. Lester, 247 F.2d 496, 500 (2d Cir., 1957); Georges v. United States, 262 F.2d 426, 430 (5th Cir., 1959).” Pilkington v. United States, 315 F.2d 204, 209 (C.A.4, 1963).
. At the hearing held on December 10, 1962, four years and seven months later, he testified that he was employed as an assistant supervisor of a textile selling firm.
. Subsequently, he stated that this amount was augmented by $10, and that he had only himself to support.
. He also admitted later that he had $180 in bank at the time of arraignment, and made no reference to the alleged $200 debt.
. This waiver contained the following recital: “The defendant * * * upon being asked in open court if he is represented by counsel or if he desires the court to appoint counsel to represent him, states that he does not wish counsel but will act on his own behalf and waives the right to have counsel appointed by the Court.”
. The first sentence of Eed.Rule Orim. Proc. 11 provides: “A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere.”
. State v. Pometti, 12 N.J. 446, 97 A.2d 399, 402 (1953) ; In re 17 Club, Inc., 26 N.J.Super. 43, 97 A.2d 171, 172 (1953); Kokinda v. Carty, 30 N.J.Super. 253, 104 A.2d 65 (1954); People v. Daiboch, 265 N.Y. 125, 191 N.E. 859 (1934).
. See Notes of Advisory Committee on the Rules.
. Were this not so, all a defendant need do is claim innocence in support of liis motion since no trial will be held to establish the probable truth of such a claim. Nevertheless, this does not mean that the district court need not hold a hearing to ascertain tire good faith of such a claim, especially where it is based on a ground which goes • to the jurisdiction of the court.
. A fine note did not understate the matter when it made the following observation: “Because the passage of time causes serious evidentiary problems, rendering it difficult for the prosecution to bear its burden of proof on retrial, delayed collateral attacks have undesirable consequences.” Note, Postrelease Remedies for Wrongful Conviction, 77 Harv.L.Rev. 1615, 1616 (1961).