Bettis v. United States

• Decision Date: 10 September 1974
• Docket Number: No. 6990.,6990.
• Citation: 325 A.2d 190
• Parties: Jesse V. BETTIS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

325 A.2d 190

Jesse V. BETTIS, Appellant, v. UNITED STATES, Appellee.

No. 6990.

District of Columbia Court of Appeals.

Argued September 19, 1973.

Decided September 10, 1974.

COPYRIGHT MATERIAL OMITTED

William R. Weissman, Washington, D. C., appointed by this court, with whom Joel E. Hoffman, Washington, D.C., also appointed by this court, and James Douglas Welch and Thomas W. Brunner, Washington, D.C., were on the briefs, for appellant.

Frederick C. Moss, Asst. U. S. Atty., with whom Harold H. Titus, Jr., U. S. Atty., and John A. Terry and James F. Flanagan, Asst. U. S. Attys., were on the brief, for appellee.

Before NEBEKER and HARRIS, Associate Judges, and HOOD, Chief Judge Retired.

HARRIS, Associate Judge:

A six-count indictment was returned against appellant. Based upon of fenses allegedly committed on three separate dates, he was charged with burglary in the second degree, grand larceny, and petit larceny. D.C.Code 1973, §§ 22-1801(b), 22-2201, and 22-2202. A plea of guilty to one burglary charge (involving the felonious entry of his mother's home) was accepted by the court, and appellant was committed to the custody of the Attorney General for a Youth Corrections Act (YCA) evaluation under 18 U.S.C. § 5010(e) (1970). Thereafter, he was sentenced as an adult. Several months later, he filed a pro se motion seeking to have his guilty plea withdrawn. The motion was denied without a hearing. We reject the arguments ably advanced on appellant's behalf, and affirm.

I

When the trial court was advised of appellant's desire to plead guilty to one of the charges (and of the government's related intention to dismiss the remaining charges), a hearing was conducted pursuant to Superior Court Criminal Rule 11. In part, the hearing transcript reflects:

THE COURT: Mr. Bettis, do you understand that you are charged with having, on or about May 25, entered the dwelling of Ada Frazier with intent to steal property. Do you understand that's the charge?

MR. BETTIS: Yes.

THE COURT: Do you understand that you have a right to trial by Court or by jury on that charge?

MR. BETTIS: Right.

THE COURT: Do you understand that if you plead guilty you won't have any right of appeal?

MR. BETTIS: No. I didn't understand that.

[DEFENSE COUNSEL]: If I may

[Pause]

MR. BETTIS: I understand.

[DEFENSE COUNSEL]: I think he understands that since there isn't any right to — there won't be any trial either by the Court or by the jury that there could be no appeal on a guilty plea.

THE COURT: Do you understand that the maximum penalty for this charge would be — could be 2 to 15 years?

MR. BETTIS: Yes.

THE COURT: You have consulted thoroughly with your lawyer about this?

MR. BETTIS: Right.

The court accepted the guilty plea, and the government stated the factual basis for the charge. In the ensuing discussion, defense counsel noted that appellant was 21 years of age. He then stated:

I have advised [appellant] that he could be sentenced under the Federal Youth Correction Act up to a period of 4 years in jail with 2 additional years under supervision. I further advised him, since this is a daylight burglary, I understand that it is possible that he could be sentenced under Title 2 of the Narcotic Addict Rehabilitation Act [18 U.S.C. § 4251 et seq. (1970)], and that under that act could he incarcerated up to 10 years, so he is aware that not only could he get 15 — straight 15 years but he might be sentenced under these other alternatives.

The court decided upon a commitment for evaluation under § 5010(e) of the YCA. The government then advised the court that appellant had a robbery charge pending in the United States District Court for the District of Columbia, and noted that the § 5010(e) evaluation "could be completed while he was awaiting whatever disposition on those robbery charges in District Court."

The Classification Committee at The Youth Center subsequently recommended that appellant be sentenced as an adult. That was concurred in by the Superintendent, and by the District of Columbia Board of Parole. The trial court reached the same conclusion. On August 14, 1972, appellant was sentenced to imprisonment as an adult for two to six years. Meanwhile, appellant was found guilty of the robbery charge in the District Court. Several months after his sentencing in the instant case, the District Court imposed a three to nine year sentence in the robbery case, to be served consecutively to the sentence previously imposed in the Superior Court.

Throughout this period, appellant wrote a considerable number of letters to the trial judge. One was written October 9, 1972, and was accompanied by a pro se motion for reduction of sentence. The motion was denied. On November 14, 1972, another pro se motion was sent by appellant to the trial court. It was short, imprecise, and conclusory, and sought withdrawal of the guilty plea.¹ No hearing was held on the motion, and it was denied on November 28. Appellant noted his appeal from that order pro se; we appointed counsel to represent him.

II

Appellant contends that the Rule 11 guilty plea hearing was fatally defective in two particulars. One challenge is related to the District Court's later imposition of a consecutive sentence on the robbery charge which was before it. Rule 11 provides in part that the trial court may not accept a guilty plea until it determines, after addressing the defendant personally, "that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea."² A failure to satisfy the requirements of the rule may result in setting aside a guilty plea. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). Appellant argues that his plea must be set aside because the Superior Court judge did not advise him that the District Court judge later might impose a consecutive sentence, so appellant's plea in Superior Court was not tendered with understanding of its full consequences. We disagree.

The first consideration is a practical one. At the time of the Rule 11 hearing, it was appellant — rather than the Superior Court judge — who was peculiarly aware of his own District Court case. The record reflects that the plea was accepted before the trial court was made aware that a District Court proceeding was pending. Rule 11 scarcely may be interpreted to require a trial judge to be certain a defendant understands the possible future consequences of something of which the court properly is unaware.

Nor does appellant's argument withstand legal analysis. Rule 11 does not require an explanation by the trial court of all collateral consequences of a guilty plea. E. g., Smith v. United States, 116 U.S. App.D.C. 404, 324 F.2d 436 (1963), cert. denied, 376 U.S. 957, 84 S.Ct. 978, 11 L. Ed.2d 975 (1964); United States v. Cariola, 323 F.2d 180 (3d Cir. 1963). The Superior Court judge was not required to go beyond the case before him. With respect to it, he properly satisfied himself that appellant's plea was tendered voluntarily and with an awareness of its direct consequences. See Brady v. United States, 397 U.S. 742, 754-755, 90 S.Ct. 1463, 25 L.Ed. 2d 747 (1970). There was no obligation to explore the possibility of consecutive sentences arising from separate indictments.³ Hinds v. United States, 429 F.2d 1322 (9th Cir. 1970). In no sense could it validly be said that the later District Court sentence was a "consequence" of the Superior Court guilty plea.

Appellant further contends that the Rule 11 hearing was fatally flawed by the trial court's statement that there could be no appeal from the plea. It is claimed that the plea did not remove the right to appeal from an unlawful sentence, and hence that appellant was misled. However, assuming the technical inaccuracy of the court's statement, the fact that it was somewhat over-restrictive could not be said to have induced appellant to enter a plea of guilty. (Appellant does not so argue; the claim of prejudice on this point is understandably rather vague.) The Rule 11 hearing cannot he said to have been invalidated by the references by the court and appellant's trial counsel to the lack of a right to appeal, for as a practical matter virtually every possible avenue of appeal is waived by a guilty plea.⁴ And, while it is true that no appeal was taken from appellant's adult sentence, we resolve the merits of that question infra.

III

Going beyond the claimed infirmities in the Rule 11 hearing, appellant contends that the trial court abused its discretion in denying the motion for withdrawal of the guilty plea. We cannot agree.

One point must be stressed. Appellant addressed numerous letters and two motions to the trial judge, and the briefs submitted in this court on his behalf reflect thorough professional care. In none of those documents is there any suggestion that appellant may be innocent of the charge to which he pleaded guilty. In considering a motion for withdrawal of a plea of guilty, such a factor not only is important, but may be conclusive. E.g., Smith v. United States, supra. As the Circuit Court stated in Edwards v. United States, 103 U. S.App.D.C. 152, 155, 256 F.2d 707, 710, cert. denied, 358 U.S. 847, 79 S.Ct. 74, 3 L.Ed.2d 82 (1958):

Appellant does not try to say he did not do the act charged. He pleads only that, unknown to him, he might have been able to suppress the truth as to certain evidence of his crime, and thus, perhaps defeat justice. He cannot be heard to this end after a voluntary, knowing plea of guilty.

We need not decide whether the lack of a claim of innocence alone would defeat appellant's claim, although obviously it is a compelling consideration. Involved is Superior Court Criminal Rule 32(e) [identical to Fed.R.Crim.P. 32(d)], which states:

A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the...