U.S. v. Graves, 94-3834

Citation98 F.3d 258
Decision Date10 October 1996
Docket NumberNo. 94-3834,94-3834
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Dale E. GRAVES, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Bradley W. Murphy (argued), Office of the U.S. Attorney, Peoria, IL, for Plaintiff-Appellee.

Dale E. Graves, Medical Center for Federal Prisoners, Springfield, MO, D. Michael Rickgauer (argued), Williams & Associates, East Peoria, IL, for Defendant-Appellant.

Before POSNER, Chief Judge, and COFFEY and EASTERBROOK, Circuit Judges.

POSNER, Chief Judge.

Between August 1993 and July 1994, a 61-year-old man named Dale Graves, who had no previous criminal record (other than for driving offenses) but had suffered a stroke the previous year, robbed the same bank in Peoria three times at gunpoint. He was caught leaving the bank the third time, was prosecuted, pleaded guilty to three counts of aggravated bank robbery and one count of using or carrying a gun during the commission of a violent felony, and was sentenced to 112 months in prison. He appealed. His lawyer filed an Anders brief (a brief in support of a motion to withdraw from the case on the ground that there are no nonfrivolous grounds for an appeal, see Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)), which discussed a single--and frivolous--issue, concerning the fine imposed on Graves. We directed the lawyer to order, and review, the transcript of the guilty-plea proceeding and to file a further brief, discussing compliance with Rule 11 of the Federal Rules of Criminal Procedure, which governs the conduct of guilty-plea hearings. He did so, filing a second Anders brief, which recited that there had been no violations of Rule 11. But later, in response to a further order directing him to consider two specific Rule 11 issues--violation of Rule 11(c)(5) and misrepresentation of the availability of good-time credits for the gun offense--he filed not another Anders brief but instead a brief on the merits, urging reversal on the basis of the misrepresentation only.

The district judge had failed to inform Graves, as Rule 11(c)(5) required him to do, that any statement that Graves made at the plea hearing could be made the basis for, or otherwise used in, a prosecution against him for perjury. As there is no current or prospective prosecution of Graves for perjury, the violation of Rule 11(c)(5) was harmless. E.g., United States v. Bachynsky, 949 F.2d 722, 727 (5th Cir.1991); United States v. Gomez-Cuevas, 917 F.2d 1521, 1526 (10th Cir.1990); United States v. Pinto, 838 F.2d 1566, 1569 (11th Cir.1988) (per curiam); cf. McCleese v. United States, 75 F.3d 1174, 1181 (7th Cir.1996). If the violation of the rule weren't harmless, because there was a prospect of a perjury trial, still the proper sanction would be exclusion of the statement from that trial rather than throwing out the guilty plea. Advisory Comm. Note to 1982 Amendment of Fed.R.Crim.P. 11, subdivision (c)(5) (last paragraph); see United States v. Conrad, 598 F.2d 506, 509 and n. 1 (9th Cir.1979).

The issue of misrepresentation arises from the judge's having told Graves, on the basis of a confident but incorrect (see 18 U.S.C. § 3624(b)(1)) statement by Graves's lawyer (the same lawyer who has represented him throughout the appeal), that Graves could not get any good-time credits on the sentence for the gun offense, which accounted for 60 of the 112 months to which the judge sentenced him. Again the misrepresentation was harmless, but not, as the government argues, because it must have made pleading guilty seem a worse choice than it was. Had Graves known he could get good-time credits, he would, according to the government, have been all the more eager to plead guilty. But that is not necessarily so. The misrepresentation concerning the severity of the sentence was a misrepresentation about the consequences of going to trial as well as about the consequences of avoiding trial by pleading guilty. Graves had used a gun in all three of his robberies, so he could have been tried for three gun offenses and if convicted would have received consecutive sentences. 18 U.S.C. § 924(c)(1). The harsher he thought the sentences would be (and unavailability of good-time credits would make them harsher), the more reluctant he would be to go to trial.

While discovering that the gun statute is not quite so harsh as he was led to believe could theoretically have made Graves less eager to plead guilty by making the consequences of going to trial and losing less fell, common sense tells us that the possibility is too remote to justify allowing him to withdraw his plea on the ground that had he known the truth he would have opted for a trial instead. A misrepresentation that makes the defendant think that the sentence which he is inviting by pleading guilty is longer than it really is will rarely induce a plea, for normally the heavier the sentence invited by the plea the less likely the defendant will be to plead rather than roll the dice for trial. We cannot find a case which relieves the defendant from his plea in such circumstances--indeed we find only two reported appellate cases in which the defendant sought to be relieved from his plea because the sentence imposed pursuant to the plea was lighter than he had been led to expect. United States v. Raineri, 42 F.3d 36, 42 (1st Cir.1994); United States v. Smith, 440 F.2d 521, 532 (7th Cir.1971) (dissenting opinion). The fact that the judge isn't required to inform the defendant concerning good-time credits, e.g., United States v. Garcia, 698 F.2d 31, 33 (1st Cir.1983), is some indication that judges do not believe that the availability or not of such credits is likely to influence the defendant's decision to plead guilty or go to trial.

We have thus far assumed that Graves wants to vacate his guilty plea; but this is not certain. The filing of a notice of appeal on behalf of a defendant indicates that the defendant wants to challenge the judgment of the district court. But the judgment in a federal criminal case is the sentence, and ordinarily when a defendant pleads guilty and then appeals all he is challenging is the sentence and not the anterior conviction. The fact that the first Anders brief discussed only a sentencing issue (the amount of the fine) was consistent with the standard pattern. It was this court that injected the issue of the validity of the plea of guilty into the appeal. Even if the plea were infected by error at the plea hearing, if the defendant preferred pleading guilty to going to trial it would be improper for the judge to throw out the plea on his own initiative; the judge is not supposed to engage in plea bargaining or to disregard the bargain struck. See Fed.R.Crim.P. 11(e)(1), (3), (4); United States v. Barnes, 83 F.3d 934, 939 (7th Cir.1996); United States v. Ritsema, 89 F.3d 392, 402 (7th Cir.1996); United States v. Andrade-Larrios, 39 F.3d 986, 988-90 (9th Cir.1994); United States v. Olesen, 920 F.2d 538, 540-41 (8th Cir.1990). Eventually Graves's lawyer did file a brief on the merits challenging the validity of the plea on the ground of misrepresentation of its consequences, and by doing so recreated an adversary setting. We assume he did this with Graves's acquiescence, but that acquiescence has legal significance only if Graves is mentally competent to participate in the appeal process to the extent of deciding that he wants to withdraw his guilty plea and take his chances with either a further round of plea bargaining or a trial. Competence is presumed, but we are about to see that there is reason to doubt Graves's competence to plead guilty, and this implies doubt as well about his competence to decide to challenge his guilty plea on appeal.

Ordinarily, it is true, the fact that a defendant is incompetent does not affect the appeal. See ABA Criminal Justice Mental Health Standards 7-5.4 (2d ed. 1980 & 1986 supp.). A defendant's participation in the appeal is generally quite limited, because the decisions involved in prosecuting an appeal are almost entirely of a technical legal character. But challenging a plea of guilty involves the additional consideration that if the challenge succeeds the defendant may well end up with a heavier sentence (for the sentence imposed pursuant to the plea may have reflected a "good" plea bargain compared to the results of a trial), and this is a risk of which the defendant must be made aware before the appeal is taken. If there is reason to believe that he was incompetent to assess the risk, a determination of competence should be made before the appeal is allowed to proceed....

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