Sherman v. United States

• Decision Date: 28 November 1967
• Docket Number: No. 21603.,21603.
• Citation: 383 F.2d 837
• Parties: Thomas Joseph SHERMAN, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

383 F.2d 837 (1967)

Thomas Joseph SHERMAN, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 21603.

United States Court of Appeals Ninth Circuit.

September 25, 1967.

Rehearing Denied November 28, 1967.

David L. Irons, Honolulu, Hawaii, for appellant.

Herman T. F. Lum, U. S. Atty., James F. Ventura, Asst. U. S. Atty., Honolulu, Hawaii, for appellee.

Before MADDEN, Judge of the Court of Claims, and BARNES and MERRILL, Circuit Judges.

MERRILL, Circuit Judge:

This case raises two questions relating to the tentative sentence provided by 18 U.S.C. § 4208(b):¹ (1) Does the right of allocution² attach at the time of defendant's commitment under the tentative sentence as well as at final sentencing; (2) under what standard should leave to withdraw a plea of guilty³ be granted during the period between the tentative and the final sentences?

On July 7, 1966, in the District Court for the District of Hawaii, appellant, with court-appointed counsel present, entered a plea of guilty to an indictment charging that he had made a long-distance telephone call by falsely representing himself to be the owner of a telephone credit card, in violation of 18 U.S.C. § 1343. The plea was made with the understanding of both appellant and his counsel that the pro forma maximum sentence would be imposed under § 4208 (b) in order that appellant might have the benefit of a study under § 4208(c), a benefit appellant expressed a desire to have.

Appellant was sentenced as anticipated and was ordered committed for study to the federal correctional institution at Lompoc, California. On this occasion appellant was not afforded the opportunity to make a statement in his own behalf pursuant to Rule 32(a)(1). Three days later, while awaiting transportation to the mainland, appellant underwent a change of mind and wrote the district judge seeking an "extension of the statutory time for a motion for new trial." The trial judge being absent no action was taken. On July 17 appellant wrote the trial judge asking for a hearing on change of plea. By the time this letter was received by the trial judge appellant had already left for Lompoc. The judge deferred action until appellant's return to Hawaii.

While in Lompoc appellant filed a motion to vacate sentence under 28 U.S.C. § 2255, upon the ground that he had been denied his right of allocution.

Following the study in Lompoc appellant returned to Hawaii for final sentencing. From October 25 to 27 hearing was had on his motions, with appellant represented by new counsel. The motions were denied. The original sentence was affirmed, subject to appellant's express eligibility for parole. On this occasion appellant was afforded the opportunity to make a statement in his own behalf.

Appellant has taken this appeal from judgment and from the order denying relief under § 2255.

1. Appellant asserts as error failure to grant him the right of allocution on original imposition of sentence.

The Government correctly points out that this is not a ground for collateral attack under § 2255. Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). Accordingly, on the appeal from the order denying relief under § 2255, the District Court must be affirmed.

This failure, however, if it be error, can be challenged on appeal from final sentencing, even though appeal also lay from the original sentencing. Corey v. United States, 375 U.S. 169, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963).

The Government contends that right of allocution does not attach to the original sentence. It emphasizes that that sentence was no more than a preliminary commitment and was wholly tentative. The right of allocution, it points out, coming after guilt has been established and at the sentencing stage, contemplates an opportunity for the defendant to bring mitigating circumstances to the attention of the court. Thus, it asserts, under § 4208(b) the crucial point at which to allow the defendant to speak is the time of final sentencing, since it is only then that mitigation is relevant. It is settled that allocution is necessary at the time of final sentencing under § 4208(b), even though it has been provided at the original commitment. See Behrens v. United States, 375 U.S. 162, 165, 84 S.Ct. 295, 297, 11 L.Ed.2d 224 (1963), where it was stated:

"It is only then that the judge\'s final words are spoken and the defendant\'s punishment is fixed. It is then that the right of the defendant to be afforded an opportunity to make a statement to the judge in his own behalf is of most importance."

This does not, however, render allocution wholly irrelevant at the time of original commitment. Since appeal lies from the order, it is in our judgment such a sentencing as is covered by Rule 32(a) (1). It was, then, error to fail to afford appellant the opportunity to speak.

Under the circumstances of this case, however, that error was harmless. Appellant had made it clear that commitment for study under 18 U.S.C. § 4208 (b) was what he sought and the opportunity to speak at the time of final sentencing, under these circumstances, afforded him every right contemplated by the rule.

2. Appellant asserts that failure to grant his motion to withdraw his guilty plea was error, since the District Court proceeded as though this were a case where sentence had already been imposed, and where change of plea should be allowed under Rule 32(d) only "to correct manifest injustice." Appellant contends that if, as the Government so strongly asserts with respect to the right of allocution, it is the final sentence that counts, it is at that point that the manifest injustice standard should attach and that prior to that point the presentencing discretionary standard should apply.

We agree. What the manifest injustice rule seeks to avoid is an opportunity for the defendant to test the severity of sentence before finally committing himself to a guilty plea. Such a testing cannot be had under § 4208(b) until final sentence has been imposed.

The District Court made it clear, however, that in...