Baker v. U.S., 85-5561

• Decision Date: 15 January 1986
• Docket Number: No. 85-5561,85-5561
• Citation: 781 F.2d 85
• Parties: David Wayne BAKER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 85

781 F.2d 85

David Wayne BAKER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 85-5561.

United States Court of Appeals Sixth Circuit.

Argued Dec. 10, 1985.

Decided Jan. 15, 1986.

David Wayne Baker, Sandstone, Minn. pro se.

Errol Cooper, Jr., argued, Lexington, Ky., for petitioner-appellant.

Louis DeFalaise, U.S. Atty., Lexington, Ky., John M. Compton, argued, for respondent-appellee.

Before KENNEDY and GUY, Circuit Judges and WOODS ^*, District Judge.

CORNELIA G. KENNEDY, Circuit Judge.

Baker appeals from the District Court's order overruling his motion to vacate his sentence pursuant to 28 U.S.C. Sec. 2255. Appellant Baker is proceeding pro se on appeal except for purposes of oral argument.

On August 7, 1984, Baker and a co-defendant pleaded guilty to an indictment for violations of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 2(a) and (b), distributing cocaine. The plea was entered pursuant to an agreement in which the United States agreed to move for dismissal of another indictment of a similar offense on a later occasion. At a sentencing hearing on September 21, 1984, Baker was sentenced to fifteen years' imprisonment, the maximum under the statute. Baker filed a Fed.R.Crim.P. 35 motion for reduction of the sentence. The District Court denied his motion on March 7, 1985. On April 23, 1985, Baker moved the court to vacate the sentence pursuant to 28 U.S.C. Sec. 2255. The court overruled this motion on June 3, 1985.

Baker raises three issues on appeal. He alleges that his guilty plea was not knowing and voluntary as it was induced by erroneous information about the maximum possible sentence he could receive and as his plea bargain included a promise, later broken, that the government would stand mute and take no stance at his sentencing. Affidavits offered by Baker relate that the defense attorneys involved (Baker's and his co-defendant's) understood that the government had agreed to take no stance and/or to stand mute. The government did, in fact, make a statement at sentencing; it did not request any particular sentence. Baker further alleges that he was deprived of effective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), as his attorney advised him he could receive up to 75 years if he were found guilty on both indictments and his sentence was enhanced because of a prior marijuana distribution conviction, at that time on appeal. Finally, Baker alleges that the District Court erred in overruling his present motion without holding an evidentiary hearing.

I.

Baker correctly argues that for a guilty plea to be valid it must be both knowing and voluntary. Brady v. United States, 397 U.S. 742, 747, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970). Pursuant to Fed.R.Crim.P. 11, the District Court properly examined Baker as to his competence to plead, his understanding of the consequences of his actions in pleading guilty, and his voluntariness, before accepting the plea. Baker claims, however, that his plea was not knowing and voluntary because he was wrongfully "threatened" with enhancement of his sentence if he went to trial and because he agreed to plead in part because of a broken promise by the government to stand mute and take no stance at his sentencing.

The first allegation is without merit. Baker does not allege in his petition or supporting memo, nor do his affidavits contend, that anyone but defense counsel informed him of the chance of enhancement to 75 years. The record reflects that the court itself properly informed Baker of the maximum jail sentence he could receive before accepting the plea. The court stated:

Do you understand that the maximum possible sentence that could be handed down by the court would be imprisonment for a term of 15 years, ... or in case if you have a prior offense, a maximum sentence of incarceration of 30 years.... ¹

Tr. 18.

Baker's second allegation, that his plea bargain was based in part on the government's promise to take no stance and to stand mute at sentencing, and that since this promise was not kept his plea was not voluntary, is also without merit. The transcript reveals that the court asked Baker, "Has anyone made any kind of a promise or made any kind of representation to you to induce you to enter this plea of guilty?" Defendant replied, through retained counsel, "Your honor, the government has agreed to file a motion to dismiss indictment number 84-22 upon entering the plea of guilty here." The colloquy continued:

THE COURT: Both counts?

MR. JOLLY: Yes.

THE COURT: Any other understanding?

MR. JOLLY: No other understanding whatsoever.

THE COURT: Is this correct, Mr. Dause?

MR. DAUSE: That's correct, your honor.

THE COURT: Mr. Baker, is that your understanding?

MR. BAKER: That's my understanding.

BY THE COURT:

Q. Mr. Baker, did anyone attempt to prophesize what the court might do in passing sentence in this case upon your decision to plead guilty to this indictment, did they tell you what the court would do?

A. Oh, no, sir.

Tr. 19.

Baker, either himself or through his attorney, had the opportunity to inform the court of the government's alleged promise to stand mute and take no stance. As the second circuit stated in United States v. Corsentino, 685 F.2d 48 (2d Cir.1982), "It is not uncommon for federal prosecutors in this Circuit and elsewhere to include in their plea agreements with defense counsel a commitment to 'take no position' at sentencing." 685 F.2d at 49. There is no reason to believe that such a revelation in this case would have shocked the court below or would otherwise have prejudiced defendant. It was incumbent upon him to reveal to the court all the terms of the plea agreement when expressly asked to do so by the court.

The Supreme Court has addressed this issue at length in Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). In Blackledge, defendant claimed in his petition for habeas corpus that he was promised a maximum sentence of ten years by his attorney, who had allegedly consulted with the prosecutor and the judge. He was in fact sentenced to 17-21 years. The Supreme Court held that defendant was entitled to an evidentiary hearing "[i]n the light of the nature of the record ... and of the ambiguous status of the process of plea bargaining at the time the guilty plea was made...." 431 U.S. at 76, 97 S.Ct. at 1630. The "nature of the record" alludes to the fact that the record of the plea hearing consisted only of a printed form that the clerk checked off as defendant answered each question and the fact that there was no transcript whatsoever of the sentencing hearing. 431 U.S. at 66-67, 97 S.Ct. at 1625-1626. The "ambiguous status" of the plea bargaining process refers to the fact that defendant was arraigned 37 days after Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). In Santobello the Supreme Court recognized the legitimacy of plea bargaining, a process that had been shrouded in secrecy up to that time. 431 U.S. at 76-77, 97 S.Ct. at 1630-1631.

The Blackledge Court noted that under the North Carolina procedure afforded defendant,

[n]o transcript of the proceeding was made. The only record was a standard printed form. There is no way of knowing whether the trial judge in any way deviated from or supplemented the text of the form. The record is silent as to what statements Allison, his lawyer, or the prosecutor might have made regarding promised sentencing concessions. And there is no record at all of the sentencing hearing three days later, at which one of the participants might well have made a statement shedding light upon the veracity of the allegations Allison later advanced.

431 U.S. at 77, 97 S.Ct. at 1631.

The instant case is manifestly distinguishable from Blackledge. In fact, this case exemplifies the type of "commendable procedures" the Blackledge Court states would show "whether any bargain did exist...." 431 U.S. at 79-80, 97 S.Ct. at 1632-1633. On the record at the plea hearing, Baker was advised that he must answer the questions truthfully, under penalty of perjury. The court inquired into his competence to plead and into his understanding of the plea process and of his rights were he to go to trial. The court then inquired into the terms of the bargain, supra, and received the response that the government had agreed only to move to dismiss indictment 84-22. The court then asked defense counsel and prosecutor and Baker if there were any other terms. All three denied there were, on the record. The sentencing hearing was also conducted on the record, which is available for scrutiny. ²

Two earlier cases relied upon in Blackledge are also clearly distinguishable from the instant case. In Fontaine v. United States, 411 U.S. 213, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973), petitioner alleged his plea was coerced because of physical abuse, illness, heroin addiction and a prolonged interrogation. The Court, per curiam, stated that "[o]n this record" it could not conclude with assurance that petitioner was entitled to no hearing under section 2255. 411 U.S. at 215, 93 S.Ct. at 1462. No allegation of any coercion even approaching that in Fontaine has been made by Baker. He merely alleges that the government promised to stand mute and to take no stance at sentencing, and then did not do so. In Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962), petitioner claims the prosecutor promised him a lenient sentence and then threatened him if he even told his own lawyer about the deal. 368 U.S. at 489-90, 82 S.Ct. at 511-12. The Machibroda Court remanded for a hearing, but noted that district courts do have discretion in these matters and that "this case is not far from the line." 368 U.S. at 496, 82 S.Ct. at 514. In stark contrast to Machibroda, the petitioner before us admits in his allegations that all parties before the court knew of the alleged...