Barker v. U.S.

• Citation: 579 F.2d 1219
• Decision Date: 12 July 1978
• Docket Number: Nos. 77-1276,77-1317,s. 77-1276
• Parties: Wayne Ernest BARKER, Appellant, v. UNITED STATES of America, Appellee. UNITED STATES of America, Appellee, v. Wayne Ernest BARKER, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 1219

579 F.2d 1219

Wayne Ernest BARKER, Appellant, v. UNITED STATES of America, Appellee.

UNITED STATES of America, Appellee, v. Wayne Ernest BARKER, Appellant.

Nos. 77-1276, 77-1317.

United States Court of Appeals, Tenth Circuit.

Submitted May 9, 1978.

Decided July 12, 1978.

Roger M. Theis, Asst. U. S. Atty., Topeka, Kan. (James P. Buchele, U. S. Atty., and Bruce E. Miller, Asst. U. S. Atty., Topeka, Kan., on the briefs), for appellee.

James D. Oliver, Wichita, Kan. (Philip S. Frick, Wichita, Kan., on the reply briefs), of Foulston, Siefkin, Powers & Eberhardt, Wichita, Kan. (Pro se briefs filed by appellant).

Before BARRETT and McKAY, Circuit Judges, and BRATTON, District Judge. ^*

BARRETT, Circuit Judge.

Wayne Ernest Barker (Barker) appeals his conviction, following his guilty plea, of receipt by a convicted felon of a firearm which had been transported in interstate commerce, in violation of 18 U.S.C. § 922(h). ¹ Prior to sentencing, Barker unsuccessfully moved to withdraw his guilty plea. Consolidated with this direct appeal is Barker's appeal from the denial of his motion to vacate his sentence, pursuant to 28 U.S.C. § 2255.

We will first consider Barker's direct appeal of the firearm conviction. In September of 1976, Barker, who had been convicted in Ohio in 1958 on a felony charge of armed robbery, was found possessing a .38 caliber revolver. He was subsequently indicted for violation of 18 U.S.C. § 922(h). At his arraignment, he pled not guilty. Trial was set for November 8. Barker was allowed to remain free on bond. While he was awaiting trial, Barker's apartment in Houston, Texas, was searched. Some illicit items, including a sawed-off shotgun and several bags of marijuana, were seized in the course of the search.

On the morning of trial and after the jury had been empaneled and the Government's twelve witnesses were present, Barker and the United States Attorney's representative entered into a plea agreement. Barker agreed to withdraw his plea of not guilty and to enter a plea of guilty. In exchange, the Government agreed that it would not oppose Barker's release on bond until sentencing and that it would not seek to have his bond increased. The Government further agreed not to use any of the potentially incriminating evidence seized in his apartment in the course of any hearing dealing with Barker's release on bond.

Prior to accepting Barker's guilty plea, the trial court undertook a full hearing pursuant to Rule 11, Fed.R.Crim.Proc., 18 U.S.C. The court carefully ascertained that Barker's plea was made in an intelligent and voluntary manner. When the court questioned Barker about his mental competence, Barker stated that he had been evaluated at one time, but that since then he had been found to be competent and that he was presently competent. Barker was represented by competent counsel during the entire proceeding. With the advice and assistance of his attorney, Barker read and executed a "Petition to Enter Plea of Guilty and Order Entering Plea," pursuant to Rules 10 and 11, Fed.R.Crim.Proc., 18 U.S.C. In this document, he again acknowledged that his guilty plea was entered as a matter of his free will and that he was aware of the consequences of the plea. During this hearing, Barker did not contest the existence or validity of his prior Ohio felony conviction. He assured the trial court that he fully understood all of the elements of the crime with which he was charged. Sentencing was then set down for December 20, 1976. Barker was again released on bond.

On December 13, a week prior to the sentencing date, Barker, Pro se, moved to have his guilty plea withdrawn. He based his motion on several grounds: that he was not guilty; that he had been coerced into making his plea because he had strong personal reasons for remaining free on bond; and that the evidence obtained from the search of his apartment, which the Government had promised not to use in exchange for the plea, had been illegally obtained. He alleged that he had entered the guilty plea because of Government "coercions, pressures and in order to stay out of jail." The trial court denied his motion and proceeded to sentence Barker to three years imprisonment.

Subsequently, Barker moved for reconsideration of the denial of his plea withdrawal motion. In denying this motion, the trial court issued a memorandum and order detailing the reasons for the denial of Barker's motion to withdraw his guilty plea: Barker had been represented by able counsel; he had been accorded a full Rule 11 hearing; he had entered his plea with complete understanding of the offense charged and the consequences of the plea; he had entered the plea willingly; and that Barker had not been forced, coerced or threatened to enter the guilty plea. The trial court concluded that Barker had, in effect, been playing games with the court:

We believe that Mr. Barker's plea of guilty and subsequent attempt to withdraw that plea did not result from any "coercion" or "involuntariness." It appears to the Court that Mr. Barker was attempting to manipulate the Government and the Court so that he could obtain that to which he was not entitled six weeks of freedom on bond without any adverse consequences.

(R., Vol. I, at 83.)

Undaunted, Barker later filed a memorandum objecting to the trial court's finding that he was mentally competent at the time he entered the guilty plea. Barker charged that the United States Attorney's office and the probation officer who had completed a presentence investigation report did not advise the court of the fact that he had been institutionalized in an Ohio mental hospital prior to his 1958 trial. Thereupon, the trial court directed that Barker be committed to the Springfield Medical Center, there to undergo a psychiatric examination, pursuant to 18 U.S.C. § 4244, in order to determine if Barker had been mentally competent when the guilty plea was tendered and the sentence was entered. The results of the Springfield examination were that Barker was determined to have been mentally competent when he entered his plea and when he was sentenced.

On appeal Barker and his attorney, in separate briefs, raise various contentions of error, including that: (1) the trial court applied an improper standard when it denied Barker's motion to withdraw his plea; (2) the trial court abused its discretion in refusing to allow his withdrawal of the guilty plea, and (3) the trial court erred in failing to conduct a full hearing on the issue of the effect of Barker's mental competence relating to his ability to enter a valid plea. A myriad of peripheral issues are also raised; however, only the dispositive issues will be discussed.

I.

Barker argues that the trial court applied an improper legal standard in denying his motion to withdraw his guilty plea by employing the criterion used in instances when a defendant moves to have his guilty plea withdrawn after sentencing.

Rule 32(d), Fed.R.Crim.Proc., 18 U.S.C., provides:

A motion to withdraw a plea of guilty or Nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice, the court may set aside the judgment of conviction and permit the defendant to withdraw his plea.

Hence, a pre-sentencing withdrawal motion is to be measured by different criteria than a motion made after sentencing. The test to be applied when a motion to withdraw is made before sentencing is that of "fairness and justice." Dorton v. United States, 447 F.2d 401 (10th Cir. 1971), quoting Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). On the other hand, a post-sentencing motion to withdraw should be granted only to prevent manifest injustice.

Barker bases his argument relative to the use of improper standard on the trial court's language contained in its memorandum and order denying the withdrawal motion:

We are not convinced that he would have presented legal ground sufficient to Mandate allowance of his motion for withdrawal . . .

(R., Vol. I, at 82.)

There is no situation here which would Require us to allow withdrawal of the guilty plea.

(R., Vol. I, at 86.)

Thus, Barker seems to contend that the use of the words "mandate" and "require" are indications that the trial court applied the stringent standard of "manifest injustice," rather than the more liberal standard of "fair and just." We must reject his contention.

Ordinarily "mandate" and "require" mean "to command," "to demand," and "to insist upon." (The American Heritage Dictionary, at 793 and 1105.) In choosing this language the trial court did not mean that it could permit withdrawal of the guilty plea only if manifest injustice were present. The court was, instead, simply expressing recognition that withdrawal of a plea of guilty is not an absolute right, but rather one resting solidly in the discretion of the trial court. The trial court correctly observed that inasmuch as Barker's plea was entered in a voluntary and intelligent manner, it was neither unfair nor unjust to deny his withdrawal motion.

II.

Barker contends that the trial court abused its discretion by refusing to permit him to withdraw his guilty plea, even though he had presented valid justifications therefor. Barker argues that: the plea agreement was based on representations of fact and law which were shown to be mistaken and untrue; the plea was not knowingly and intelligently made, inasmuch as he was not informed of his defenses or advised that he would waive them by a guilty plea; and there were other factors which supported the withdrawal motion.

Even though the general rule is that motions to withdraw guilty pleas before sentencing are to be freely allowed and treated with liberality, (Dorton, supra,) still the decision thereon is within the sound discretion of the trial court. Johnson v. United States, 485 F.2d 240 (10th Cir. 1973). Thus, unless it is shown that the trial court acted...