549 F.2d 1293 (9th Cir. 1977), 75-3297, United States v. Segal

Docket Nº:75-3297.
Citation:549 F.2d 1293
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Rea Lyn SEGAL, Defendant-Appellant.
Case Date:February 02, 1977
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1293

549 F.2d 1293 (9th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,

v.

Rea Lyn SEGAL, Defendant-Appellant.

No. 75-3297.

United States Court of Appeals, Ninth Circuit

February 2, 1977

Page 1294

William M. Goodman, Asst. Federal Public Defender (argued), of San Francisco, Cal., for defendant-appellant.

Malcolm Stuart Segal, Asst. U.S. Atty. (argued), of San Francisco, Cal., for plaintiff-appellee.

Before BROWNING and WALLACE, Circuit Judges, and EAST, [*] District Judge.

WALLACE, Circuit Judge:

Segal pleaded guilty to the fraudulent use of a fictitious name and address in violation of 18 U.S.C. § 1342 and was placed on probation. The district court subsequently found that the terms of her probation had been violated, revoked probation and imposed a jail sentence to begin subsequent to a state sentence she was then serving. On appeal she raises two questions. She contends first that she was denied the protections guaranteed by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and Rule 11, Fed.R.Crim.P., which are claimed to apply to her probation revocation hearing and, second, that imposition of a sentence to run consecutive to a state sentence was an abuse of discretion. We affirm.

I

After Segal's guilty plea, sentencing was continued to allow preparation of a presentence report and to provide time for her to

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work out an acceptable plan for making restitution to persons she defrauded. Segal experienced difficulty complying with her payment plan and, ten months later, appeared in district court with her attorney for a report. After she and her attorney offered mitigating arguments, the district judge suspended imposition of sentence and placed Segal on probation with various terms including that she make restitution in an amount and manner to be determined by her probation officer. The judge warned Segal several times during the hearing that if she failed to comply with the conditions of probation he would be forced to impose a tough prison sentence.

Nine months later, her probation officer filed a petition for revocation, alleging that Segal had violated the probation conditions by failing to make scheduled restitution payments, to submit monthly reports and to report an arrest (although the charges were dismissed). She was also charged with serving 30 days in jail for a state probation violation. The court held a hearing at which Segal was warned again that if she did not cooperate she would be quickly placed in prison. Her counsel requested and was granted a continuance in order to prepare evidence in mitigation of the alleged violations. Apparently the court later decided not to revoke probation.

A second petition for revocation of probation was filed 17 months later alleging that Segal failed to notify the probation officer of a change of address, to submit monthly reports and to pay restitution. A supplemental petition was filed seven months thereafter stating that Segal was convicted in a state court of forgery and sentenced to one year in a county jail, and also convicted by another state court on one count of forgery and one count of fraud, with a one-year sentence imposed to run concurrently with the prior state conviction.

A hearing was held on the two petitions with Segal and her counsel present. In response to the court's inquiry, Segal and her attorney acknowledged that they had discussed the charges. Segal then admitted four of the five charges, denying that she had failed to notify her probation officer of a change of address. Her counsel conceded that there was no point in contesting the four admitted violations and waived a hearing on the nonadmitted violation in light of the other admissions. The court viewed the admissions as having been made voluntarily and knowingly.

Segal and her attorney both argued in mitigation of the violations. The court, however, revoked probation and imposed a sentence of three years, to run consecutively to the sentences she was then serving in a county jail.

II

The first question before us is whether Segal was entitled to the protections of Boykin v. Alabama and Rule 11 at the time her probation was revoked and sentence was imposed. She contends that she did not receive the benefit of these protections when she admitted violations of the terms of her probation.

The protections of Boykin and Rule 11 are designed to provide objective and easily reviewable evidence that guilty pleas have been made voluntarily and knowingly. In Boykin, the Supreme Court held that it was a violation of due process for a state trial court to accept a guilty plea without an affirmative showing that the plea was voluntary and intelligent. It was ruled impermissible to presume from a silent record the waivers of three rights forfeited by a guilty plea the Sixth Amendment rights to a jury trial and to confront one's accusers, and the Fifth Amendment privilege against compulsory self-incrimination. 395 U.S. at 243, 89 S.Ct. 1709.

While not requiring a particular ritual, Rule 11 does provide instructions for federal courts in order to achieve a similar purpose. The district judge is required to address the defendant personally and determine that the plea is made voluntarily and with the understanding of the nature of the charges against him and the consequences of the plea. Failure to comply with Rule 11 entitles a federal defendant to have his guilty plea set aside and his case remanded

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for another hearing at which he may plead anew. McCarthy v. United States, 394 U.S. 459, 468-72, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).

Before analyzing the Boykin and Rule 11 claims, it is important to identify what Segal does not argue. She does not allege a Boykin or Rule 11 violation at the time she pleaded guilty. We presume, in the absence of a showing of plain error, that the district court followed the law. See Davis v. United States, 425 F.2d 673, 674 (9th Cir. 1970); Fed.R.Crim.P. 52(b). Although the plea-taking record is not before us, we may assume, in the absence of any contrary contention, that the record affirmatively shows that the guilty plea was voluntary and intelligent, cf. United States v. Pricepaul, 540 F.2d 417, 422-424 (9th Cir. 1976), and that Segal was fully advised of her rights as required by Rule 11. Finally, Segal does not argue that her guilty plea was involuntary or not intelligently entered. Thus we begin with the premise that the full panoply of rights to which Segal was entitled were properly provided to her at the time she pleaded guilty.

Though not specifically articulated, Segal's contention appears to be that in spite of a valid and unassailable plea of guilty with all the court and congressionally mandated trappings, when imposition of a sentence has been suspended and she has been admitted to probation, she is again entitled to the protections of Boykin and Rule 11 three years and eight months later when her probation is revoked and a sentence imposed. The government's answer is not that Boykin and Rule 11 were complied with when Segal admitted her probation violations, but that those protections are not required in a probation revocation hearing.

III

The argument pertaining to Rule 11 is easily answered. By its terms, the court must advise a defendant "(b)efore accepting a plea of guilty." Fed.R.Crim.P. 11(c). It is the taking of the plea, not the imposition of sentence or the revocation of probation, to which the rule is addressed. Indeed, the advisory committee notes make no reference to protection from an admission of wrongdoing outside the context of a plea of guilty to a criminal charge. If the Supreme Court and Congress wish to extend the application of Rule 11 to new areas, they are free to do so. But it would be officious meddling for a court of appeals to amend the rule. We decline to do so.

IV

The more difficult question is whether Boykin safeguards apply at this stage. No decision of the Supreme Court or of our court has been cited to us nor have we found one which answers this precise question. However, from the authority reviewed, we believe a reasoned answer must be no.

A

Although mute on the issue before us, the Supreme Court has provided some guidance in a number of decisions concerning what process is due in proceedings along a continuum starting with criminal prosecutions and ending with the correctional process. For purposes of our analysis, we differentiate among four types of proceedings where the Court has required differing levels of due process. In decending order of the amount of process which is due are: (1) criminal prosecutions, e. g., Boykin v. Alabama, supra ; (2) probation revocation hearings with imposition of a sentence theretofore suspended, e. g., Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); (3) probation revocation hearings with the sentence already established and parole revocation hearings, e. g., Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) and Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); and (4) prison disciplinary proceedings, e. g., Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) and Baxter v. Palmigiano, 425 U.S. 308, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976). By analyzing what is required in a probation revocation setting, taking account of the additional

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process due when a suspended sentence is imposed, we shall determine whether Segal's due process rights were infringed.

Morrissey v. Brewer, supra, articulated hearing requirements for parole revocation. The same rights were later extended to probationers in revocation proceedings:

Probation revocation, like parole revocation, is not a stage of a criminal prosecution, but does result in a loss of liberty. Accordingly, we hold that a probationer, like a parolee, is entitled to a preliminary and a final revocation hearing, under the...

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