Larry L. Barton v. United States of America, Edward H. Parry v. United States

458 F.2d 537, 1972 U.S. App. LEXIS 10357
CourtCourt of Appeals for the Fifth Circuit
DecidedMarch 31, 1972
Docket71-2507
StatusPublished
Cited by14 cases

This text of 458 F.2d 537 (Larry L. Barton v. United States of America, Edward H. Parry v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Larry L. Barton v. United States of America, Edward H. Parry v. United States, 458 F.2d 537, 1972 U.S. App. LEXIS 10357 (5th Cir. 1972).

Opinions

COLEMAN, Circuit Judge:

The denial of relief under 18 U.S.C., § 2255 will be affirmed.

On January 10, 1969, Edward H. Parry and Larry L. Barton were separately indicted (Barton in Case No. 69-5 and Parry in Case No. 69-6) for the robbery of the federally insured United National Bank of Cocoa Beach, Florida. Both appellants were charged in two counts with the violation of subsections (a) and (b) of 18 U.S.C., § 2113.1

[539]*539At their arraignment, January 15, 1969, both men pled not guilty to all counts of the two-count indictments. Trial was set for February 17, 1969. Ten days prior to trial date both Parry and Barton again appeared before the Court, asking that they be allowed to change their pleas.

As to Barton the Court accepted a change of plea from “not guilty” to “guilty” as to Count One of the indictment. Count Two was dismissed upon the motion of the United States Attorney.

In Parry’s case the Court accepted a change of plea on both counts from “not guilty” to “guilty”.

In response to questions propounded by the Court at this proceeding, both Parry and Barton represented that they: (1) had discussed the nature of the proceedings with their attorneys, (2) had not been threatened, (3) had received no promises, (4) had never been addicted to narcotics, (5) knew exactly what they were doing, and (6) were pleading guilty because they were indeed guilty of the crimes with which they were charged.

These pleas, however, did not cover all of appellants’ entanglements with the law. Both were also under federal indictments in the District of Maryland and in the Eastern District of Pennsylvania, charging them with violation of the federal bank robbery statutes, subsections (a), (b) and (c) of 18 U.S. C., § 2113. An information had also been filed in the Eastern District of New York charging them with violating subsections (a) and (d) of that same Code section. Pursuant to Rule 20 of the Federal Rules of Criminal Procedure, both Barton and Parry consented to have these cases transferred for plea and sentence from the named districts to the Middle District of Florida.2

On March 6, 1969, these appellants appeared before the Court for arraignment in the Rule 20 cases and for sentencing in all cases. Prosecution by indictment was waived in the case transferred from the Eastern District of New York. When asked by the Assistant United States Attorney as to their pleas, both appellants pled guilty to each count of the indictments filed in the cases transferred from the District of Maryland and from the Eastern District of Penn[540]*540sylvania, and to each count of the information filed in the case transferred from the Eastern District of New York.

Again, in response to questions asked by the Court both men stated that they: (1) had not been threatened, (2) had received no promises of anything, (3) were satisfied with the advice and representation of their attorneys, (4) had never been addicted to narcotics and were not at that time under the influence of any narcotic or sedative, and (5) were voluntarily pleading guilty because they were in fact guilty of the crimes with which they were charged.

After the acceptance of these guilty pleas, the appellants were given the maximum sentence allowable on each count of the various indictments. For example, in Case No. 69-23, the case transferred from the Eastern District of New York, the Court sentenced the appellants to twenty-five years imprisonment on Count One and to another twenty-five years imprisonment on Count Two. However, the sentences imposed in each indictment or information were to run concurrently with all other sentences that were imposed. Thus, the aggregate of all sentences was, subject to the parole eligibility provisions of the United States Code, imprisonment for a maximum of twenty-five years.

Subsequently, appellants filed a motion to vacate and set aside the judgments of conviction, 28 U.S.C., § 2255. In their motion, the appellants alleged that: (1) the guilty pleas in all eases, the consent to transfer of case for plea and sentence in Case Nos. 69-22, 69-23, and 69-24, and the waiver of indictment in Case No. 69-23 were neither voluntarily nor understandingly entered because they were incorrectly informed as to the maximum sentence which could be given them; (2) the subsections of 18 U.S.C., § 2113 did not create separate offenses, as a result of which a court is prohibited from imposing more than one sentence for the violations of these subsections; and (3) at the time of executing the consents to transfer in Cases numbered 69-22, 69-23, and 69-24, the waiver of indictment in 69-23, and at the time of pleading guilty to one or more of the counts in each indictment, they were mentally incapacitated from prior prolonged use of the drug LSD.

After numerous delays, an evidentiary hearing was held on the § 2255 motion. The District Court agreed that the appellants should be resentenced in accordance with United States v. White, 5 Cir., 1971, 440 F.2d 978. Resentencing was scheduled for August 27, 1971. In all other respects Barton and Parry were denied § 2255 relief.

From this order the appellants have appealed and make the following Specifications of Error:

The sentencing Court did not comply with the mandate of Rule 11 in that: (1) the Court permitted Government counsel to address appellants personally as to the required determination that their pleas were made voluntarily with understanding of the nature of the charge, and to inform appellants of the consequences of such a plea; (2) the sentencing Court corroborated Government counsel’s misinformation as to the consequences which could be imposed on pleas of guilty to the subsections of 18 U.S.C., § 2113; (3) the sentencing Court did not satisfy itself that there existed a factual basis for the pleas, and the reporter’s transcript of said proceedings so reflects; and (4) the sentencing Court erred in its adjudication of Allegation “E” (the LSD allegation), as said allegation was not before the Court at time of evidentiary hearing, and the reporter’s transcript of that proceeding so reflects.

I

Because the pleas here in issue were accepted prior to the decision of McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (April 2, 1969), the “automatic prejudice’’ rule of that case is of no avail to these appellants, Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969). However, pre-Mc-[541]*541Carthy pleas may be attacked as to vol-untariness, and when it can be shown that a plea was not voluntarily and understandingly entered then such a plea will be invalidated.

The record reveals that the sentencing Court personally addressed each appellant in order to determine that his plea was made voluntarily and with an understanding of the nature of the charges. Both appellants answered the Court’s questions unhesitatingly, placing no qualifications upon their answers.

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Bluebook (online)
458 F.2d 537, 1972 U.S. App. LEXIS 10357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/larry-l-barton-v-united-states-of-america-edward-h-parry-v-united-ca5-1972.