Hughes v. United States

• Decision Date: 07 February 1967
• Docket Number: No. 18494.,18494.
• Citation: 371 F.2d 694
• Parties: Thomas HUGHES, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

371 F.2d 694 (1967)

Thomas HUGHES, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 18494.

United States Court of Appeals Eighth Circuit.

February 7, 1967.

Harry Roth, St. Louis, Mo., filed brief and argued for appellant.

William C. Martin, Asst. U. S. Atty., St. Louis, Mo., for appellee; Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., was with Mr. Martin on the brief.

Before VAN OOSTERHOUT, BLACKMUN and MEHAFFY, Circuit Judges.

VAN OOSTERHOUT, Circuit Judge.

This is an appeal by the defendant Hughes from his conviction upon a plea of guilty to Count One of an indictment charging him with carrying heroin from Dallas, Texas, to St. Louis, Missouri, in violation of 26 U.S.C.A. § 4724(b) and the resulting ten-year imprisonment sentence imposed. As grounds for reversal, defendant urges the trial court committed prejudicial error in the following respects: (1) Denial of his motion to suppress evidence (seized heroin). (2) Denial of his request to withdraw his plea of guilty.

We hold that the court did not abuse its discretion or commit error in denying defendant's request to withdraw his guilty plea, and his conviction based upon his guilty plea must be affirmed.

In Smith v. United States, 8 Cir., 359 F.2d 481, we considered the law applicable to withdrawal of a plea of guilty. We approvingly quoted from Everett v. United States, 119 U.S.App.D.C. 60, 336 F.2d 979, 983, as follows:

"`Overwhelming authority holds, as has this court, that withdrawal of a guilty plea before sentencing is not an absolute right 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 discretion.\'"

We upheld the trial court's refusal to permit an appeal in forma pauperis from the court's order refusing permission to withdraw the guilty plea, stating that the proposed appeal was frivolous and without merit.

United States v. Ptomey, 3 Cir., 366 F.2d 759, concisely states the appropriate test that should govern in our present case as follows:

"The withdrawal of a plea of guilty is not a matter of right. A motion for leave to withdraw a plea of guilty and substitute a plea of not guilty is addressed to the sound discretion of the court and should be denied if the defendant knew and understood what was being done and there were not present any circumstances of force, mistake, misapprehension, fear, inadvertence or ignorance of his rights and understanding of the consequences of his plea." 366 F.2d 759, 760.

The defendant after his arrest expressed a desire to be represented by a Las Vegas attorney who had represented him on a prior criminal charge. When it became apparent that such representation would not be forthcoming, the court appointed counsel to represent the defendant. Such counsel filed a motion to suppress as evidence the seized heroin. After an evidentiary hearing, such motion was overruled.

Thereafter defendant retained Mr. Roth to represent him and at the defendant's request, the court-appointed counsel was discharged. Mr. Roth served as retained counsel of defendant's choice in the trial court and upon appeal is serving as court-appointed counsel.

When this case was reached for trial pursuant to assignment on July 5, 1966, defendant in the presence of his counsel advised the court that he desired to withdraw his plea of not guilty and enter a plea of guilty. The court advised the defendant on the nature of the charge and the possible penalties, and as a result of interrogation ascertained that the defendant admitted he committed the crime charged; that he understood the consequences; that his plea was not induced by any threats or promises, and was voluntarily and intelligently made. The court then accepted the guilty plea and deferred sentencing, awaiting a probation report. Count Two of the indictment was then dismissed at the request of the Government.

Defendant, when he appeared before the court for sentence on July 18, 1966, asked leave to withdraw his guilty plea. He stated that he had heard that his Las Vegas attorney had come to St. Louis to see him and that he was not permitted to do so. Inquiries by the court developed that the Las Vegas attorney...