Bachner v. U.S., s. 74-1210

• Citation: 517 F.2d 589
• Decision Date: 12 August 1975
• Docket Number: 74-1651 and 74-1732,Nos. 74-1210,s. 74-1210
• Parties: Frank E. BACHNER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee (two cases). UNITED STATES of America, Plaintiff-Appellee, v. Frank E. BACHNER, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 589

517 F.2d 589

42 A.L.R.Fed. 691

Frank E. BACHNER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee (two cases).

UNITED STATES of America, Plaintiff-Appellee, v. Frank E. BACHNER, Defendant-Appellant.

Nos. 74-1210, 74-1651 and 74-1732.

United States Court of Appeals Seventh Circuit.

Argued Feb. 27, 1975.

Decided June 5, 1975.

Rehearing and Rehearing En Banc Denied Aug. 12, 1975.

Edward Spitz, Chicago, Ill., Frank E. Bachner, Santo J. Volpe, Chicago, Ill., for petitioner-appellant.

James R. Thompson, U. S. Atty., Gary L. Starkman and Jeremy D. Margolis, Asst. U. S. Attys., Chicago, Ill. (Frederick H. Branding, Asst. U. S. Atty., Chicago, Ill., on the brief), for respondent-appellee.

Before HASTINGS, Senior Circuit Judge, and STEVENS and TONE, Circuit Judges.

TONE, Circuit Judge.

These appeals challenging two guilty pleas and sentences thereon arise, like many others, ¹ from omissions by trial judges to advise a defendant at a hearing on a plea of guilty of special provisions of the federal narcotics laws relating to sentencing, the old law's parole ineligibility provision in one case and the new law's requirement of a mandatory parole term in the other. In each case the District Court held the plea valid under all the circumstances, notwithstanding the omission. We affirm these judgments.

Before May 1, 1971, federal narcotics offenders were subject to mandatory minimum sentences and were ineligible, under former 26 U.S.C. § 7237(d), for probation or parole. Effective that date, the Comprehensive Drug Abuse Prevention and Control Act of 1970, 84 Stat. 1236, replaced the old law and repealed section 7237(d). Under the new act there was no mandatory minimum period of imprisonment and no prohibition against probation or parole. The new act did, however, require that a sentence provide for a minimum special parole term of at least three years. 21 U.S.C. § 841. One of the two convictions Bachner challenges on this appeal was for an offense under the old law, and the other was for an offense under the new law.

I.

The decisions on failure to advise of parole eligibility as a ground for relief under 28 U.S.C. § 2255 and the effect of Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) were reviewed by Judge Hastings in his opinion for this court in Gates v. United States, 515 F.2d 73 (7th Cir. 1975). As he pointed out, until the Supreme Court decided Davis the scope of review under section 2255 was uncertain. There was no doubt that relief could be granted for jurisdictional and constitutional errors, but, as the opinion of Mr. Justice Stewart for the majority and the dissenting opinion of Mr. Justice Rehnquist in Davis illustrate, there was disagreement about whether the remedy reached errors of law only and if so what kinds. Davis held that a nonconstitutional error of law could be raised under section 2255 but only if it is "a fundamental defect which inherently results in a complete miscarriage of justice" ² and "present(s) exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent." ³ 417 U.S. at 346, 94 S.Ct. at 2305.

Before Davis, a majority of the circuits, including ours (United States v. Smith, 440 F.2d 521 (7th Cir. 1971)), granted section 2255 relief to petitioners who were not informed of their ineligibility for parole when they pleaded guilty. Gates v. United States, supra, 515 F.2d at 79, n. 7. These cases, while viewing the error as affecting the defendant's understanding of the consequences of the plea and hence voluntariness, generally relied on Rule 11, as pointed out in Gates, and did not reach the constitutional question. ⁴ This rule has been extended by two courts to failure to advise of a mandatory special parole term (United States v. Richardson, 483 F.2d 516 (8th Cir. 1973); Roberts v. United States, 491 F.2d 1236 (3rd Cir. 1974)), and by one to advice of a greater maximum sentence than the statute actually provides (Kelsey v. United States, 484 F.2d 1198 (3rd Cir. 1973)). ⁵ The Fifth Circuit, however, held it unnecessary to advise of parole ineligibility (Trujillo v. United States, 377 F.2d 266 (5th Cir. 1967), cert. denied, 389 U.S. 899, 88 S.Ct. 224, 19 L.Ed.2d 221 (1967)), and in cases in which the defendant was misinformed as to the maximum penalty refused to apply an automatic rule and held that a case-by-case analysis should be made to determine whether the defendant would have entered a different plea if the actual penalty was known. United States v. Woodall, 438 F.2d 1317, 1329 (5th Cir. 1971) (in banc), cert. denied, 403 U.S. 933, 91 S.Ct. 2262, 29 L.Ed.2d 712 (1971); see United States v. Blair, 470 F.2d 331, 340 n. 20 (5th Cir. 1972), cert. denied, 411 U.S. 908, 93 S.Ct. 1536, 36 L.Ed.2d 197 (1973). The latter rule was followed by the District Court in this case.

In Gates the court noted that the decisions of the various Courts of Appeals granting relief under section 2255 for failure to advise of parole ineligibility were decided before Davis and, after explaining the Davis test, applied that test to the case before it. Thus the court did not merely hold, on the authority of Smith (supra, 440 F.2d 521), that failure to advise of parole ineligibility without more automatically entitled the petitioners to relief. Instead it examined the circumstances surrounding the plea and sentence, noting that the petitioners not only had been insufficiently advised before pleading but had been told at the time they were sentenced that they would be eligible for parole, and concluded as follows:

"We hold that a § 2255 petitioner is entitled to relief where a court not only fails to inform him prior to his plea of his ineligibility for parole, but also incorrectly informs him at the time of sentencing that he will be eligible. These compound errors present 'exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.' Davis v. United States, supra, 417 U.S. at 436, 94 S.Ct. at 2305." Gates, supra, 515 F.2d at 80

The Gates opinion also maintained the principle, enunciated in Smith (supra, 440 F.2d at 526-527), that the quality and magnitude of the error are to be assessed as of the time of the plea and sentence, and not in the light of later events, thus rejecting the government's argument that the petitioners were not harmed by the inaccurate advice because they were sentenced to lesser penalties than the maximum of which the judge advised them. Gates, supra, 515 F.2d at 80.

Gates accordingly demonstrates that the correct application of the Davis standard to complaints relating to the defendant's understanding of the consequences of his plea requires an examination of the circumstances at the time of the plea and also at the sentencing hearing, when, as stated in United States v. Brown, 499 F.2d 829, 835 (7th Cir. 1974), cert. denied, 419 U.S. 1047, 95 S.Ct. 619, 42 L.Ed.2d 640 (1974), a motion to withdraw the plea could still have been made. From this examination the court must determine whether the error was of sufficient magnitude to amount to "a fundamental defect which inherently results in a complete miscarriage of justice" and "present(s) exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent." Davis, supra, 417 U.S. at 346, 94 S.Ct. at 2305. If we determine that it was not, we may then prove our answer by looking at what happened afterward to be sure the defendant did not suffer any prejudice. ⁶

II.

Frank Bachner, is the appellant in each of the three appeals before us. In Number 74-1210 he appeals from a judgment denying relief under 28 U.S.C. § 2255 from a conviction upon a plea of guilty to a three-count indictment charging transportation of a quantity of marijuana in violation of former 21 U.S.C. § 176a. Sentences for violation of that statute were subject to former 26 U.S.C. § 7237(d), which prohibited probation or parole for the offender. Bachner entered his plea of guilty on December 3, 1971 and was sentenced on January 4, 1972 to a ten-year term on each count, the terms to run concurrently. He was also fined $10,000 and assessed the costs of prosecution. He appealed, arguing that he should have been sentenced under the new act. This court affirmed by unpublished order on March 14, 1973.

Bachner contends in this proceeding that at the sentencing hearing the judge failed both to advise him of the nature of the charges and to determine that there was a factual basis for the plea, and also failed to advise him of the consequences of his plea by omitting to mention ineligibility for probation or parole and liability for costs, all in violation of Rule 11 and his constitutional rights.

The contentions as to failure to advise of the nature of the charges and to determine that there was a factual basis for the plea are wholly without merit. At the plea hearing the judge summarized the charges contained in the indictment and asked Bachner whether he understood those charges. Bachner answered that he did. The judge then asked, "Did you do the things that you are charged with doing in these three counts?" Bachner answered, "Yes, your Honor." At the sentencing hearing Bachner volunteered, "I am guilty of this. I realize what the danger was, to be very honest." While the explanation of the charges and the establishment of the factual basis for the plea might have been more detailed, the record is adequate, especially in view of the presence of competent retained counsel, to establish that Bachner comprehended the nature of the charges and made an understanding acknowledgment of their truth. Cf. Arias v. United States, 484 F.2d 577, 579-580 (7th Cir. 1973), cert. denied, 418 U.S. 905, 94 S.Ct. 3195, 41 L.Ed.2d 1153 (1974).

The contentions relating to adequacy of the advice about the consequences of the plea require more discussion. At the plea hearing the judge said he did not...