Charles Daniel Everett v. United States

336 F.2d 979, 119 U.S. App. D.C. 60, 1964 U.S. App. LEXIS 4494

Opinions

BURGER, Circuit Judge.

Appellant entered a guilty plea to Counts 3 and 4 of a six-count indictment; prior to sentence he sought leave to withdraw these pleas and go to trial on these two counts. After an extended colloquy with appellant in the course of the hearing, the District Court permitted withdrawal of the guilty plea as to Count 3 but declined it as to Count 4 because no valid reason or basis for withdrawal had been claimed or shown. On the remaining guilty plea to Count 4 he sentenced appellant to nine years imprisonment under the Youth Corrections Act, 18 U.S.C. § 5010(c) (1958).

The six-count indictment charged three offenses arising out of unrelated robberies and one attempted robbery on a fourth occasion, spanning a period from April 1962 to January 1963.

At arraignment under Fed.R.Crim. P. 10 on February 25, 1963, appellant entered a plea of not guilty as to all six counts and was released on bail. Two months later, with retained counsel, he withdrew the pleas of not guilty to Count 3 (robbery) and Count 4 (assault with intent to commit robbery) and entered pleas of guilty as to both of these counts.¹ Before accepting these guilty pleas, the District Judge, pursuant to Fed.R.Crim.P. 11² and Resolution of the Judges of the U. S. District Court for the District of Columbia promulgated June 24, 1959 thereunder,³ con ducted an extensive interrogation of appellant as to the facts of the alleged crimes and his reasons for pleading guilty thereto. Appellant freely admitted the charges: as to Count 3 he said, “I went in and robbed the place * * * by myself * * * [and took] about $200.00, sir”; as to Count 4 he said, “Well I entered the liquor store and I demanded money, sir; and well I just remember being shot; that’s about all.” •He stated further that he had brandished •a gun both times but did not shoot it; that on the latter occasion one of the liquor store employees had shot him; and that he had been apprehended the following day when he had gone to the hospital for treatment of the gunshot wound. The District Judge interrogated appellant carefully as to his awareness of the possible sentence; appellant reiterated his guilt⁴ and said he was pleading guilty because he was guilty and not because the Government had moved to dismiss four other counts should he plead guilty to Counts 3 and 4.⁵

Three weeks later, appellant, with his retained counsel, filed a motion under Fed.R.Crim.P. 32(d)⁶ to withdraw his guilty pleas to Counts 3 and 4. On June 27, 1963, the District Court conducted a hearing on the motion and at this time appellant said he was innocent of the Count 3 robbery charge and had pleaded guilty to that count only because he “was so confused and worried * * * [and] wanted to try to get this over as soon as possible.” As to Count 4, however, he stated to the Court: “Well, Your Honor, I am guilty of that charge. I did attempt to rob this place. That’s all.” ⁷ The District Judge granted the motion to withdraw the plea as to Count 3 but denied the motion as to Count 4 ⁸ on which guilt was admitted.

Appellant is now represented by court-appointed counsel who urges that the District Court committed reversible error in refusing to permit withdrawal of the guilty plea to Count 4 in the circumstances shown here.

We disagree emphatically. We have held that withdrawal of a guilty plea, made by a defendant unrepresented by counsel, “should be freely allowed” when he seeks withdrawal before sentencing. Poole v. United States, 102 U.S.App.D.C. 71, 75, 250 F.2d 396, 400 (1957).⁹ More recently, in Gearhart v. United States, 106 U.S.App.D.C. 270, 273, 272 F.2d 499, 502 (1959), Judge Washington, speaking for a unanimous court, noted that:

“[T]he Supreme Court in broad dictum already had said that ‘The court in exercise of its discretion will permit one accused to substitute a plea of not guilty and have a trial if for my reason the granting of the privilege seems fair and fust.’ * * -x-

“This is not to say that the District Court lacks all discretion in dealing with a motion of the present sort. But discretion must be exercised on the basis of sound information, soundly viewed. Where the accused seeks to withdraw his plea of guilty before sentencing, on the ground that he has a defense to the charge, the District Court should not attempt to decide the merits of the proffered defense, thus determining the guilt or innocence of the defendant. In certain situations, where the issue raised by the motion to withdraw is one of tangential, nature, resolvable apart from the-merits of the case, the District Court, may appropriately hold a factual, hearing to determine whether the-accused has a ‘fair and just’ reason for asking to withdraw his plea of' guilty.”

Far from showing a “ ‘fair- and just’ reason” for a change of plea to Count 4, appellant demonstrated by his repeated statements that he had no reason other than wanting a trial on a charge of which he admitted his guilt.¹⁰ Unlike Gearhart, appellant offered no defense to the charge,¹¹ nor did he allege. involuntariness or any other factor which would militate against the correctness and truth of his guilty plea to Count 4 which was entered when he was represented by retained counsel.¹² His contention is virtually a claim of an absolute right to withdraw a guilty plea prior to imposition of sentence.¹³ No court has ever so held; our use of the language “freely allowed” plainly implies the existence of some circumstances in which a defendant is not entitled to withdraw a plea of guilty before sentencing, and negates any absolute right to do so.¹⁴ Overwhelming authority holds, as has this court, that withdrawal of a guilty plea before sentencing is not an absolute right¹⁵ but a decision within the sound discretion of the trial court which will be reversed by an appellate court only for an abuse of that discretion¹⁶

A defendant who stands before a court freely admitting his attempted robbery does not remotely meet the standard of offering a “fair and just reason” for withdrawing his plea of guilty prior to sentence.¹⁷ He must give some reason other than a desire to have a trial the basic purpose of which is to determine the very facts the defendant has just volunteered to the court on the record and while attended by his own counsel.¹⁸

The record reveals a guilty plea, intelligently and voluntarily made with assistance of retained counsel and candid admission of all essential elements of the crime in open court; this is hardly a predicate for an appellate holding that the District Judge abused his discretion in refusing to permit a withdrawal. We are not disposed to encourage accused persons to “play games” with the courts at the expense of already overburdened calendars and the rights of other accused' persons awaiting trial, whose cases may lose both their position on the calendar and the Court’s time and facilities which are thus diverted for no useful purpose.¹⁹'

Affirmed.

Footnotes

1

. On the basis of these two guilty pleas, the United States Attorney’s Office moved the dismissal of the remaining four counts. Ruling on this motion has been held in abeyance by the District Judge pending disposition of this appeal.

2

. Fed.R.Ckim.P. 11 provides in part: “The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge. * * * ”

3

. Resolved, that it is the consensus of opinion of the Judges of this Court that in all cases in which defendant enters a plea of guilty the defendant should be interrogated by or under direction of the Court to establish the following facts:

1. That defendant has been advised and understands that he has a right to a speedy trial by jury with the aid of counsel, but will have no such right if his plea of guilty is accepted.

2. That he will have the assistance of counsel at the time of sentence if the plea is accepted.

3. That defendant understands the nature of the charges against him which should bo stated to him in brief by the Court notwithstanding a prior reading of the indictment.

4. That defendant did in fact commit the particular acts which constitute the elements of the crime or crimes charged.

5. That the guilty plea has not been induced by any promise or representation by anyone as to what sentence will be imposed by the Court

6. That he has not been threatened or coerced by anyone into making the guilty plea.

7. That no promises of any kind have been made to him to induce the guilty plea.

8. That he has an understanding of the consequences of entering the plea of guilty.

9. That he is entering the plea voluntarily and of his own free will because be is guilty and for no other reason.

10. That be bas discussed tbe entry of bis plea of guilty fully with bis attorney.

It Is Fubtiiek Resolved, that it is the •consensus of opinion of tbe Judges of this Court that [a] plea of guilty shall be accepted only when the Court is satisfied that he is guilty and that he is entering the plea voluntarily and of his own free will, and with an understanding of his rights, of the charges against him, and the consequences of entering the plea.

4

. See note 3, supra, at Pt. 5.

5

. See id. at Pt. 9. See note 1, supra.

6

. “A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.” Fed.R.Cbim.P. 32(d).

7

. Count 6 charged carrying an unlicensed pistol which had been used in the attempted robbery. It was in this “attempt to rob” that appellant was allegedly shot by the liqnor store employee.

8

. In his statement to the Court at the time of sentencing appellant said: “Well, I haven’t anything to say about my sentence, but I have something to say about why I did this crime. * * * Well, the only reason why I did this crime, Your Honor, was because of my pregnant wife and unborn child. And she needed medical care, and I just didn’t have any means to try to get her in the hospital.” The Judge noted that he had information that indicated that appellant had been unemployed and his wife pregnant at the time of the offense; further colloquy revealed that appellant’s wife had gone to Jamaica to live with her father.

9

. We characterized our Poole holding in Gearhart v. United States, 106 U.S.App.D.C. 270, 273, 272 F.2d 499, 502 (1959), thus: “Where a guilty plea had been received from a defendant appearing without counsel, we said: ‘Leave to withdraw a guilty plea prior to sen- fencing should be freely allowed.’ ” And see McJordan v. Huff, 77 U.S.App.D.C. 171, 133 F.2d 408 (1943). See also Alexander v. United States, 78 U.S.App.D.C. 34, 35-36, 136 F.2d 783, 784-785 (1943).

10

. Indeed, although appellant at the April 25th hearing asserted his innocence of the charge contained in Count 3, he not only never claimed to be innocent of the charge in Count 4, but readily admitted it. Failure to make such an assertion of innocence, although not in itself dispositive, certainly militates against withdrawal. See United States v. Nagelberg, 323 F.2d 936 (2d Cir. 1963) (per curiam) (alternative ground), vacated on another ground, 377 U.S. 266, 84 S.Ct. 1252, 12 L.Ed.2d 290 (1964) (per curiam); United States v. Hughes, 325 F.2d 789, 792 (2d Cir.) (dictum that defendant must deny guilt), cert. denied, 377 U.S. 907, 12 L.Ed.2d 178, 84 S.Ct. 1167 (1964); cf. Zaffarano v. United States, 330 F.2d 114, 115 (9th Cir. 1964) (post-sentence motion), pet. for cert. filed, 32 U.S.L. Week 3433 (U.S. June 10, 1964) (O.T. 1964 No. 170); Smith v. United States, 116 U.S.App.D.C. 404, 408-409, 324 F.2d 436, 440-441 (1963) (same), cert. denied, 376 U.S. 957, 84 S.Ct. 978, 11 L.Ed.2d 975 (1964) ; Watts v. United States, 107 U.S.App.D.C. 367, 370-371, 278 F.2d 247, 250-251 (1960) (same) ; United States v. Paglia, 190 F.2d 445, 447 (2d Cir. 1951) (same), overruled on other grounds, United States v. Taylor, 217 F.2d 397 (2d Cir. 1954) ; United States v. Norstrand Corp., 168 F.2d 481, 482 (2d Cir. 1948) (same) ; Roberto v. United States, 60 F.2d 774, 775 (7th Cir. 1932) (same) ; United States v. Cooper, 222 F.Supp. 661, 663 (D.D.C.1963) (same), appeal dismissed, No. 17026, D.C.Cir., Jan. 6, 1964 (per curiam) ; United States v. Bice, 84 F.Supp. 290, 292 (D.Md.) (same), aff’d, 177 F.2d 843 (4th Cir. 1949) (per curiam). See generally Note, 112 U.Pa.L.Rev. 865, 877 n. 74 (1964). Of course, the mere assertion of a defendant’s innocence will not require that leave to withdraw a guilty plea be granted prior to sentencing. United States v. Hughes, supra; see United States v. Nigro, 262 F.2d 783, 786-788 (3d Cir. 1959); United States v. Lester, 247 F.2d 496, 501 (2d Cir. 1957); United States v. Panebianco, 208 F.2d 238, 239 n. 1 (2d Cir. 1953) (per curiam), cert. denied, 347 U.S. 913, 74 S.Ct. 478, 98 L.Ed. 1069 (1954); United States v. Colonna, 142 F.2d 210, 211 (3d Cir. 1944); cf. United States v. Fox, 130 F.2d 56, 60 (3d Cir.), cert. denied 317 U.S. 666, 63 S.Ct. 74, 87 L.Ed. 535 (1942).

11

. See Kadwell v. United States, 315 F.2d 667, 668 n. 2, 671 (9th Cir. 1963); Briscoe v. United States, 102 U.S.App.D.C. 145, 251 F.2d 386 (1958) (per curiam); High v. United States, 110 U.S.App.D.C. 25, 28-29, 288 F.2d 427, 430-432 (dictum), cert. denied, 366 U.S. 923, 81 S.Ct. , 6 L.Ed.2d 383 (1961) ; cf. United States v. Lias, 173 F.2d 685, 688 (4th Cir. 1949) (alternative ground) (post-sentence permission to withdraw granted below and gov’t appeal dismissed).

12

. Indeed the record discloses that the effort to withdraw the plea and stand trial on all six counts was against the advice of appellant’s retained counsel in the District Court. This was sound advice. Were appellant to stand trial on •all charges, he could receive sentences cumulating more than 40 years imprisonment. We can only assume that court-appointed counsel is acting here solely at appellant’s insistence on this course of action.

13

. Far more reasonable rationales have been rejected by the Court of Appeals for the Second Circuit:

“[Appellant] argues that leave to withdraw a guilty plea must be granted when a defendant’s claim of innocence is not frivolous and it will not be inequitable to the government — because of intervening destruction of evidence or otherwise — to afford a defendant a trial * *

United States v. Hughes, supra note 10.

“[Appellant] vigorously contends, however, that where the defendant insists that he is innocent of the charges contained in the indictment and offers ‘any’ explanation for his having pleaded guilty, the trial court should grant his motion to withdraw his plea of guilty * *

United States v. Colonna, supra 10 at 211 of 142 F.2d.

14

. See United States v. Hughes, supra note 10. And see the balancing process engaged in by the court in Kadwell v. United States, supra note 11, 315 F.2d at 670-671.

15

. Vasquez v. United States, 279 F.2d 34, 37 (9th Cir. 1960); United States v. Lester, supra note 10 at 500 of 247 F.2d; United States v. Panebianco, supra note 10, at 239 of 208 F.2d; Williams v. United States, 192 F.2d 39, 40 (5th Cir. 1951); Goo v. United States, 187 F.2d 62 (9th Cir.) (per curiam), cert. denied, 341 U.S. 916, 71 S.Ct. 735, 95 L.Ed. 1351 (1951); Bergen v. United States, 145 F.2d 181, 186 (8th Cir. 1944) ; United States v. Colonna, supra note 10; see United States v. Hughes, supra note 10; Rachel v. United States, 61 F.2d 360, 362 (8th Cir. 1932); Swift v. United States, 79 U.S.App.D.C. 387, 388, 148 F.2d 361, 362 (1945) (dictum); cf. Hoyt v. United States, 252 F.2d 460, 462 (10th Cir. 1958). And see Note, Withdrawal of Guilty Pleas, 55 Coittm.L.Rev. 366, 379 (1955).

16

. High v. United States, supra note 11, 110 U.S.App.D.C. at 29, 288 F.2d at 431; United States v. Hughes, supra note 10; United States v. Guerini, 296 F.2d 33, 34 (4th Cir. 1961); United States v. Moore, 290 F.2d 501 (2d Cir.) (per curiam), cert. denied, 368 U.S. 837, 82 S.Ct. 49, 7 L.Ed.2d 38 (1961); Vasquez v. United States, supra note 15; United States v. Nigro, supra note 10 at 787, 262 F.2d; United States v. Lester, supra note 15; United States v. Marcus, 213 F.2d 230, 232 (7th Cir.), cert. denied, 348 U.S. 824, 75 S.Ct. 39, 99 L.Ed. 650 (1954); United States v. Panebianco, supra note 15; Williams v. United States, supra note 15; Goo v. United States, supra note 15; Bergen v. United States, supra note 15 at 186-187, of 145 F.2d; Swift v. United States, supra note 15; United States v. Colonna, supra note 10; United States v. Fox, supra note 10 at 59-60 of 130 F.2d; Ward v. United States, 116 F.2d 135, 136 (6th Cir. 1940); Scheff v. United States, 33 F.2d 263, 264 (8th Cir. 1929); see United States v. Smiley, 322 F.2d 248, 249 (2d Cir. 1963) (per curiam); cf. Tomlinson v. United States, 68 U.S.App.D.C. 106, 108, 93 F.2d 652, 654 (1937), cert. denied sub nom., Pratt v. United States, 303 U.S. 642, 58 S.Ct. 645, 82 L.Ed. 1102 (1938); Hoyt v. United States, supra note 15; United States v. Lias, supra note 11. But cf. Kadwell v. United States, supra note 14.

In the recent Nagelberg case, the Supreme Court held that the District Court had discretion to permit the withdrawal of a guilty plea on a motion in which the Government had acquiesced because of defendant’s extensive cooperation. The Court vacated the judgment of the Court of Appeals, 323 F.2d 936 (2d Cir. 1963) (per curiam), and remanded the case to the District Court for further proceedings in conformity with its opinion; it did not direct that leave to withdraw the plea be granted. Nagelberg v. United States, 377 U.S. 266, 84 S.Ct. 1252, 12 L.Ed.2d 290 (1964) (per curiam).

17

. A defendant seeking leave to withdraw a guilty plea prior to sentencing bears the “burden of establishing grounds for the withdrawal.” United States v. Smiley, supra note 16; see United States v. Lester, supra note 10 at 501. Eor discussion of the grounds that may justify withdrawal of a guilty plea before sentencing, see Williams v. United States, supra note 15; Bergen v. United States, supra note 16; United States v. Colonna, supra note 10 at 211-212 of 142 F.2d; Ward v. United States, supra note 16 at 137 of 33 F.2d; Rachel v. United States, supra note 15.

18

. The dissent seems to assume that when the defendant at the time of sentencing explained his reasons for the crime, see note 8 supra, the District Court was required sua sponte to vacate its earlier denial of the motion to withdraw the guilty plea. No authority supports such a view. These reasons do not, as the dissent intimates, go to the existence of mens rea in the appellant: there is no criminal-responsibility issue here; rather, Everett’s reasons only explain his motives for doing a voluntary act. As such, they are irrelevant in our system of criminal justice.

19

. This court has considered numerous appeals in which challenged trial delay was-caused in part by unavailability of a. judge.