Walter Dean Waring v. Paul Delo, Superintendent, Potosi Correctional Center, Missouri Department of Corrections

uncharged fires However, was introduced. government’s evidence was more than support

sufficient to a conviction on both sets

of charges. There testimony from non-

co-conspirators linking Mr. Melson with both

the arson and the charges. Therefore, drug

we will not disturb the District Court’s rul-

ing. Possick, See United States v. (8th Cir.1988). judgment of the District Court is af-

firmed. WARING, Dean

Walter

Plaintiff-Appellee, DELO, Superintendent,

Paul Potosi Cor Center,

rectional Missouri Department Corrections, Defendant-Appellant.

No. 92-2741.

United Appeals, States Court of

Eighth Circuit. April

Submitted 1993.

Decided Oct. 1993.

Rehearing Suggestion for Rehearing

En Banc Denied Nov. 1993*. * Arnold, J., McMillian, Richard S. C and grant John R. suggestion. Arnold, JJ., Gibson Sheppard and Morris Judge L. Thomas it.”

road and wrecked County Court Jasper Circuit the Elliston of pre- a guilty plea and ordered accepted the investigation. report investigation pre-sentence (PSR) prior two Waring had that revealed convictions, known to his fact not felony a MO, City, ar- Jurgeson, Kansas L. Ronald nego- plea agreement was attorney the when (William L. and Ronald L. gued Webster sentencing, days before tiated. Two brief), defendant-appel- for Jurgeson, the on guilty plea on the his to withdraw moved lant. employer’s accident investi- that ground MO, Halloran, City, Kansas T. Michael strong possibility that reported “a gator had plaintiff-appellee. argued, driving truck Waring was not even Mr. At occurred.” time that this incident LOKEN, GIBSON, and R. JOHN Before up took sentencing hearing, HANSEN, Judges. Circuit first: that motion Well, Lonardo Mr. THE COURT: LOKEN, Judge. Circuit Waring]— [counsel of appeals a writ of The State Missouri Yes, Your Honor? MR. LONARDO: granted corpus. The district habeas Waring on any Dean at all as petitioner to it issue the writ Walter THE —is COURT: im- your motion to ground that innocence on guilt to or involuntary issue posed guilty plea? after his conviction a Is withdraw judicial guilt re- manslaughter was a vindictive to determine supposed Am I at all? guilty a withdraw a sponse to his withdrawal in a motion to or innocence Waring did not plea. Having guilty plea? concluded sentence, we reverse. receive a vindictive No, Honor- Your MR. LONARDO: determining guilt or question not a It’s

I. innocence, merely a determination it’s case, up the prove, prove us to us allow early morning of November In hours not believe existed at we in fact did night drinking, long a War- after guilty plea. our the time that we entered through truck sev- employer’s drove his a dead- posts reflectors on marking supposed eral and Am I THE Bull. COURT: Irwin, The truck Missouri. road near guilty plea end everybody withdraw let overturned, a dirt embankment sentencing suddenly says struck days before two companions. Waring’s killing one out there phantom witness there’s some face but was found Waring fled the scene acquitted of this I’m can see that nearby taken to a He was down field. talking guilt about charge? Isn’t that testing; his blood hospital for treatment and innocence? .202% alcohol.

sample contained pled this man you when Don’t recall guilty? Proceedings Courts. in the State certainly I do. MR. LONARDO: involun- charged with The State say he have to did THE COURT: What days before tary manslaughter. Two about incident? guilty pursuant he moved to enter asked him wheth- You MR. LONARDO: requiring prosecutor to a guilty when pleading not he was er or suspended sen- two-year recommend a he, guilty of fact he was fact because in tence, county jail, and five sixty days in did, you that answered he and he what change of probation. At the supervised was. guilty of hearing, Waring admitted he was he have a constitu- Does “drinking THE COURT: charge because he had been guilty? No. Does he right plead wrong tional got on the driving a truck have to withdraw a your conviction of a felony, Class C freely, voluntarily, knowing- [that was] probation, back out among there pub- ly made? No. lic. ' say When does law that he should be I am following not bargain. the plea plea guilty? allowed to withdraw his you will your allow to plea withdraw bar- When he’s been misled or induced to enter gain. you If don’t your plea withdraw freely it or when it not knowingly was or bargain ... I will you to five apply made. Now where does that in this years Department in the of Corrections. case, just says because now he twice- —this charged convicted felon involuntary with consulting After counsel, with his wife and manslaughter now, days two or three Waring elected to guilty withdraw plea his days sentencing, says before there’s some proceed and to trial. Judge Elliston in- phantom out there going witness that’s $50,000 creased bail to “if this is contradict all the other in evidence offender, filed as a persistent with a A Class say ease and that he driving wasn’t felony a stealing, jury1 and felonious a on vehicle? Now where does that fit within involuntary manslaughter give will this man the law to allow guilty him to withdraw his in somewhere between years, ten and fifteen plea? 5,000 so figuring the year ten at ... I Because, MR. LONARDO: because to 50,000 consider the adequate be bail.” At grant do otherwise injus- would a manifest the conclusion of the sentencing proceedings, tice, Judge. the court commented: THE COURT: Motion to Withdraw Gentlemen, say let me something also Guilty Plea is overruled. attorneys. else to the plea if Now this Turning question to the of sentencing under bargain form had been properly out filled guilty, Judge Elliston recited up here in heading says this “Prior Waring’s criminal history as set forth in the to reflect convictions” this man had felony PSR —a stealing conviction in felonies, prior two we wouldn’t have been eleven traffic April convictions between wasting July our time from until this time. and October one resisting arrest and way There’s no that I will imagine ever two DWI September convictions in and Octo- putting anybody probation on for involun- felony ber robbery in conviction tary manslaughter that’s been convicted of 1982. After prior confirmed these felonies, especially when one of convictions, Judge Elliston stated: felony. them’s a Class A been Well, I don’t think I need to go pre-sentence further this investigation Waring was then “persistent tried as a or report. I imagine any can’t court in the dangerous offender,” jury and a convicted state of placing you probation Missouri involuntary him of manslaughter, a Class C you’re with that traffic record and a twice- felony prison for which the authorized term convicted felon. years.” “not exceed fifteen Mo.Rev. 558.016.3(2) ... I’m going (1979). Now not § to follow the Stat. weeks la- Seven bargain at all. So imagine ter, be—and can’t Waring appeared before Elliston why you haven’t per- been filed aas for sentencing. urged probation The defense sistent offender. You deserve closer to the presented wife, testimony by Waring, his maximum of 15 you than ... do employer. During and his course of probation. testimony, Judge Elliston learned that War- injustice The manifest manslaughter committed the involuntary have been gone along have with bargain probation felony this while on for his 1982 convic- put you, your record, driving evidence, hearing with tion. After the court your conviction A felony, of Class stated: jury determining

1. The reference to a persis- determine the sentence for a must morning 558.016, was mistaken. On the §§ tent offender. See Mo.Rev.Stat. correctly 557.036.3(2)(a). parties informed Proceedings Court. in the District was on while he committed The act was driving around was out probation, and he alleged that his Waring’s petition obviously in an intoxicated truck in this “discourages the unconstitutionally now. attitude at his Look condition. plead right not Fifth Amendment turn the head and him shake Look right to Amendment the Sixth deters [and] direction, that’s an you think other responded The state trial.” demand placed on be should attitude where procedurally defaulted this claim was nose at has thumbed his probation? He and, alternatively, is without courts the state effect, society, in since about the law and Smith, Alabama merit under 1978. (1989). L.Ed.2d 865 partly at system is [M]aybe the record, the court solely upon the state Based robbery, felony A Class [His] fault.... granted the district court writ. of ten minimum sentence carries a charges2 and years, check with these acknowledged that court The district other resisting and some these arrest it procedurally defaulted claim is maybe have been things, he shouldn’t and postconvic- during the state was abandoned ... it’s In event given probation_ However, invoking the proceedings. tion he’s decided that time individual about this justice exception miscarriage of fundamental has the situation he partly responsible for Carrier, 478, 495, 106 Murray 477 v. U.S. things be that won’t in. One of himself (1986), 91 L.Ed.2d S.Ct. appear- is his attitude and in the record “rigid procedural held that district court actions displayed [by] his acts and as ance ‘imperative of way give to the rules must morning. yet even this unjust fundamentally incarcera- correcting a ” Isaac, 107, tion,’ Engle v. U.S. quoting 71 L.Ed.2d en- right, [docket] made this All I’ve (1981). has notes that defendant try.... “Court felonies, prior and prior two DWIs merits, district court Turning to the is the convictions. It numerous other given that, is a harsher sentence held “When that judgment sentence of the Court following a breakdown to a defendant Department to the defendant be sentenced show that no record must negotiations, ‘the years ten for for a term of of Corrections given the failure to weight was improper involuntary manslaughter.” the crime Carter, 804 plead guilty.’ v.] States [United [508,] The court [9th Cir.1986].” Waring’s was affirmed on direct conviction (i) Judge Elliston became that then found petition post- pro filed a se appeal. He Waring moved to withdraw angry when under Mo.Rule 29.15. conviction relief days the first sentenc- guilty plea two before allegation petition included an (ii) follow Judge Elliston refused to ing; five-year at the a Elliston offered Waring with agreement, threatened bargaining stage and then sentenced pleaded guilty, and five-year if he a “merely to ten after trial jury him to a threatened that exercising his punish the defendant for anger “out of years after trial ten to fifteen trial,” not raised direct a claim right to trial assertion of his petitioner’s at rejected claim appeal. The state (iii) improper judge’s by jury”; that the ground it abandoned when on the that was ten-year sentence he anger motivated include Waring’s appointed counsel failed to Therefore, Waring was trial. imposed after it in an Rule 29.15 motion. State amended vindictiveness unconstitutional the victim of (Mo.Ct.App.1989). Waring, 779 S.W.2d sentencing judge. The denied, part on the petition Waring’s After state Waring be re- ordered corpus district court habeas action. commenced this federal checks, conviction for driv- a 1982 misdemeanor testifying admitted at had 2. While license, PSR, a misde- revoked not reflected with three convictions passing checks. bad passing conviction bad meanor conviction 1981 misdemeanor Nix, Cir.1992) period (en or be “resentenced to a leased banc), denied, exceeding years.” U.S. -, imprisonment not five cert. (1993), 123 L.Ed.2d 450 the State’s reconsideration, The State moved for attempt apply Sawyer’s standard to a pointing legal out that the district court’s noncapital sentencing claim perplexing raises standard, based a 1986 Ninth Circuit questions. Sawyer, Prior to this court in opinion, Supreme was inconsistent with the justice/actual voked the miscarriage of inno subsequent holding Court’s in Alabama v. exception cence procedurally defaulted presumption Smith that no of vindictiveness noncapital sentencing issues such as whether exists, only proof of actual vindictiveness petitioner was sentenced under a statute that suffice, greater penalty will “when a is im him, apply Arkansas, did not see Jones v. posed imposed after trial than was after a Cir.1991), 801, 109 prior guilty plea.” 490 U.S. petitioner whether proper was not the sub at 2205. The district court denied this mo ject sentence, of a life Camper, see Pilchak v. ground tion on the Elliston’s “an We relied ger supports finding of actual vindictive upon Supreme Court statements that ness.” exception was directed impera toward “the appeal, argues On the State that the dis- tive of [correcting] fundamentally unjust incarceration,” Isaac, applying trict court erred in the Engle 107, “actual inno- v. 456 U.S. 135, 1558, bar, 1576, exception procedural cence” to in 102 S.Ct. con- 71 L.Ed.2d 783 (1981), cluding Waring “any that and included had received an uncon- substantial claim alleged that sentence, error stitutional undermined the accu placing vindictive and in racy guilt sentencing of the or determina five-year resentencing limit on the State’s tion,” Murray, 527, 539, Smith v. 477 U.S. authority. Because we conclude that (1986) 106 S.Ct. 91 L.Ed.2d 434 improvidently granted, writ was we do not added). (emphasis Sawyer Engle cited question remedy. consider the — at -, favorably, Smith see U.S. 2518-19, suggests S.Ct. at that Jones II. and Pilchak have not been overruled. At Following the district court’s initial deci least one other agree. circuit seems to See case, in Supreme sion this Court decided Jordan, 1273, Mills v. 979 F.2d 1278-79 — U.S. -, Sawyer Whitley, v. 112 S.Ct. Cir.1992). 2514, (1992). Sawyer 120 L.Ed.2d 269 con hand, majority On the other in “miscarriage justice” firmed that the ex that, Sawyer commented “In the context of a ception procedural to default is limited to case, noncapital concept of ‘actual inno petitioners who can show “a claim colorable —— at -, easy grasp,” cence’ is U.S. — at -, factual innocence.” U.S. 2520, gave example at of anoth that, Sawyer S.Ct. at 2519. held in death person confessing sug er to the crime. This cases, penalty petitioner by must “show clear gests may exception there be no convincing evidence that but for constitu procedurally noncapital sentencing barred sentencing hearing, tional error at his no claims, unless one is innocent of the crime. juror eligi reasonable would have him found minimum, passages At a this and other at -, penalty.” ble for the death U.S. Sawyer admonish that the actual innocence 112 S.Ct. at 2525. The State contends that exception noncapital sentencing in a case Sawyer applies sentencing claims in non- narrow, by objective be defined stan must cases, capital “eligible” dard, proposal such as the State’s that one sentence he received because it actually cannot be innocent of maximum, statutory was within the statutory that is within the maximum. Ac procedural therefore that his default of this cord, Collins, 951, Smith v. sentencing may claim not be excused under (5th Cir.1993). words, & n. 5 In other as a exception. the actual innocence observed, panel recently of this court “It is Though applied Sawyer guilt we have not clear to us that Jones is [v. Arkansas] case, noncapital noncapital issues in a good see Cornell v. still law in the context of a Therefore, 801, it Smith, at 2206. at 109 S.Ct. U.S. Higgins v. case.” longer Cir.1993). presume that a Therefore, not reasonable to although proce- is motivated issue, imposed after trial was normally a threshold default is dural by vindictiveness. unconstitutional Waring’s vindictive to the merits of we turn sentencing claim. present All of these factors were trial, Judge Elli During after the case.

III. crimes had learned of additional ston 2, supra. He learned committed. See note unconstitutionally A sentence is offense Waring committed the instant greater punishment imposes if it vindictive felony. the 1982 See parole while on a constitu the defendant exercised Court, Fitchburg v. Dist. Mele right jury trial or right, such as the tional Cir.1989) (1st (breach parole justifies judge appeal. the same When resentencing). the benefit of harsher He had greater after the defen imposes a evidence, trial which included tes the state’s successfully appealed the first convic dant timony by Waring’s surviving passenger and tion, presumption arises that the sentence Waring flee the passerby who observed is, sense, North Car in this vindictive. See Shillinger, scene. See Osborn Pearce, v. olina had (1969). However, in Ala 23 L.Ed.2d 656 Waring’s gained insight into also additional Smith, at at bama v. U.S. expressly noted character.3 pre Supreme Court held “that no sentencing Waring’s conduct indicat when the sumption of vindictiveness arises accept responsibility for the refusal to ed a guilty plea, first sentence was based a rehabilitative crime and the absence of follows a trial.” and the second sentence frame of mind. Therefore, belatedly as the district court ac knowledged, Waring the burden of bears con The district court nonetheless judicial proving that actual vindictiveness anger Judge Elliston’s at the cluded that he received motivated the sentencing hearing adequate proof first was States, trial. v. United after See Wasman actual vindictiveness. For a number of 3217, 3222-23, 567-68, 104 468 U.S. reasons, agree.4 we cannot (1984). L.Ed.2d 424 82 transcript place, In of the first the first support the con- sentencing hearing does not in was based on decision Smith Judge angry became sentencing judge clusion that Elliston the fact that the has consid plea Waring moving to withdraw his erably sentencing information more relevant quoted guilty. have the most relevant after trial than available when the defen We was trial, opinion. in this The closest pleaded guilty. During portions “the earlier dant anger judge expressing came to judge may gather appreciation a fuller of the attorney argu- Lonardo’s charged” and when he labeled nature and extent of the crimes support in the motion “bull.” The “insights moral ment gain [the defendant’s] into judge’s insulting open an vernacular suitability for rehabilitation.” use of character and addition, may unfortunate. But we do not be- the factors that court was In “after judicial expressed anger much as leniency lieve it so have indicated as consideration incredulity argument at counsel’s that War- guilty plea longer present.” are no 490 States, (1978); Waring's plea hearing Hess v. United admission 57 L.Ed.2d 3. Mindful of truck, when that he drove the 496 F.2d opening heard defense counsel’s statement that, Waring deny would take the stand per Supreme opinions Court’s in this area 4. The suggested of the to defense counsel out that actual vindictiveness is an issue we suade us hearing your jury's client as to that he "advise novo, giving review de little deference to must Waring perjury then what the crime of is.” interpretation of the cold state the district court's testified that he did not know whether he was McKines, See United States v. court record. sentencing driving A the truck when it crashed. Cir.), denied, cert. permitted to consider his belief that the is U.S. -, (1991). L.Ed.2d 617 112 S.Ct. perjury. defendant has committed United States 2610, 2617, 41, 53, Grayson, ing plea failing should be allowedto withdraw his to disclose facts that would have sentencing might reject plea agreement the eve of because there be caused him to say driving primarily a witness who would he was not months earlier. That was a blun- crashed, Waring by prosecutor; the truck when it after had der it is not a basis for driving inferring prejudice against Waring. admitted the truck at the hear- ing. Third, vindictive, to find that a sentence is greater certainly good it must be than a "baseline" sen There was cause for Jones, incredulity. testimony tence. See United States v. As Lonardo's at the (D.C.Cir.1993)(en bane). poatconviction hearing clear, At the state made sentencing, Judge prior felony first Elliston told when the PSR revealed the con five-year disclose, he would receive a sentence if he victions his client had failed to Lo- pleaded guilty predicted likely that a nardo knew that Elliston would impose fifteen-year reject Waring's would a ten- to and that after trial. `Whichis the baseline? If the plea hearing admission would make defense charge very court had not told what sentence he of the at trial difficult. The guilty, Waring desperate would receive on his motion to withdraw was no doubt a attempt intelligently escape Though could not have decided whether this dilemma. we accept approve Judge pungency, the court's offer to let him with do not Elliston's plea. finding draw the Does that sentence then we cannot make a of unconstitutional judge may accurately become a baseline that the not vindictiveness because he charac triggering terized the weakness of that motion. See exceed after a trial without a find Bartlett, of vindictiveness? We think not. Such a S.E.C. v. infringe Supreme Cir.1970)("A appro rule would the line of record which reflects an "unequivocallyrecognize priate ground Court cases that for a trial court's observations propriety extending leniency personal bias"). constitutional refutes Judge claim of And as exchange context, for a and of not Posner said in another "mild extending leniency judicial intemperateness suspend to those who have not does not demonstrated those attributes on which le operation of the substantial-evidence niency Jersey, Sullivan, is based." Corbitt v. New rule." Pearce v. (7th Cir.1989). 492, 500, Neither does it overcomethe U.S. 58 L.Ed.2d (1978). appropriate presumption judicial impartiality. baseline in this See predicted fifteen-year Walker, 513, case was the ten- to United States v. 920 F.2d Therefore, (8th Cir.1990)("a improper sentence after trial. the few comments do actually imposed reversal"); Honeywell, was not vindictive. not merit Inc., Smith v. 1067, (8th Cir.), cert. Finally, reject we the district court's con- denied, 576, 105 S.Ct. Judge anger clusion that Elliston's at the (1984); Commissioner, L.Ed.2d 516 Davis v. sentencing hearing first motivated the ten- (8th Cir.1984)("Oh, 734 F.2d 1302 come on" year imposed many sentence he months la- improper judicial remark). not a biased or simply many superven- ter. There were ing too Second, angry, permit finding even if Elliston was events to as to causa- angry tion-Waring accepting we infer from the record that he was the court's subse- attorneys failing quent plea; at the to disclose War- invitation to withdraw his the ing's prior plea hearing, making persistent finding felonies before the court the offender Waring moving concluding it, not at plea. to withdraw the to trial and rather plea hearing began, Judge jury, Waring's Before the than the tence; must determine sen- many Effiston had reviewed the PSR and knew he and the facts relevant to sen- reject tencing during would the and then Elliston learned Waring plea. evidentiary offer a chance to withdraw his the trial and the second sentenc- Waring's ing hearing. presumption judi- This made motion to withdraw little Given the formality impartiality, more than a point. from the court's stand- cial we will not assume that a closing judicial As the court's remarks made officer's action was based an clear, annoyed attorneys grudge, he was at the for unconstitutional rather than the trial, speedy very going have a “we are on the proper legal basis that he stated quickly.” taken. See at the time the action was record 134, 139, 106 McCullough, 475 U.S. Texas v. the facts court referred to The district (1986); 89 L.Ed.2d 104 United above, following ad- further stressed the 617, 620 Templeman, 965 F.2d States v. (1) judge knew that factors: the trial ditional — U.S. -, denied, Cir.), cert. felon before Waring was a twice-convicted (1992); Harris v. Mis 121 L.Ed.2d 387 Waring requested questioning when Cir.), souri, de cert. (2) judge plea; the trial withdrawal of his nied, -, U.S. Waring’s sentence out threatened to increase Vose, (1992); Johnson L.Ed.2d Waring his consti- anger because asserted (1st Cir.1991); Taylor v. Kin (3) by jury; trial tutional cheloe, 599, 608 by Waring judge further threatened trial reasons, foregoing we conclude all the For sentence him to predicting that a would Waring’s ten-year sentence was not years. Waring was fifteen After ten or judicial vindictive- product of unconstitutional him guilty judge sentenced found rejected Waring’s The district court ness. years prison. to ten merits, has on the and he other contentions that the district court I cannot conclude Therefore, judgment appealed. not cross finding bare facts demon- erred in that these court is reversed and the case of the district vindictiveness, trial and that strated judg- instructions to enter is remanded .with asserting Waring for judge penalized a writ of dismissing petition ment I am that the trial right to trial. convinced corpus. habeas tri- judge’s clear statement to before to five that he would be sentenced al GIBSON, Judge, R. Circuit JOHN sentence. The ten- established a baseline dissenting. ultimately imposed year respectfully I dissent. than this baseline. was harsher judgment I affirm the district would reasons, and on the basis of the For these corpus granting of habeas the writ carefully opinion the district articulated release, Waring is sentenced ordering unless court, granting affirm the of the writ. would exceeding period imprisonment not to a years. five painstakingly reviewed

The district court record trial record before us. That state

demonstrates that entered agreement providing an that he under years for receive sentence of two SCHNEIDER, Ronald Vernon involuntary manslaughter, that execution of Plaintiff-Appellant, suspended, that he would be jail placed sixty days in and be would serve years supervised probation. When on five ERICKSON, Warden, Robert A. attempted Waring appeared and to withdraw Defendant-Appellee. guilty plea, his the trial court refused No. 92-3174. pre- follow the investigation report, Appeals, Court of United States plea, re- completed after entered his Eighth Circuit. Waring had a criminal record. flected that June 1993. Submitted judge Waring he withdraw his told could so, if “I will plea, and said he did not do Decided Oct. 1993. you my disposition of this will be assure probation than because will much worse you years.” to five The trial plea, if

also told he withdrew

Case Details

Case Name: Walter Dean Waring v. Paul Delo, Superintendent, Potosi Correctional Center, Missouri Department of Corrections

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Nov 22, 1993

Citation: 7 F.3d 753

Docket Number: 92-2741

Court Abbreviation: 8th Cir.