Cherrie v. United States, 3977.

• Decision Date: 29 December 1949
• Docket Number: No. 3977.,3977.
• Citation: 179 F.2d 94
• Parties: CHERRIE v. UNITED STATES.
• Court: U.S. Court of Appeals — Tenth Circuit

179 F.2d 94 (1949)

CHERRIE v. UNITED STATES.

No. 3977.

United States Court of Appeals Tenth Circuit.

December 29, 1949.

B. Mack Bryant, Wichita, Kan., for appellant.

John S. Miller, Asst. U. S. Atty., Cheyenne, Wyo. (John C. Pickett, U. S. Atty., Cheyenne, Wyo., was with him on the brief) for the United States.

Before PHILLIPS, Chief Judge, and HUXMAN and MURRAH, Circuit Judges.

PHILLIPS, Chief Judge.

This is an appeal from the denial of a motion filed under 28 U.S.C.A. § 2255 to vacate a sentence of imprisonment.

Cherrie was apprehended upon charges of violating 18 U.S.C.A. § 415 now § 2314.

Thereafter, on June 24, 1948, he signed a written waiver of indictment, the material portions of which are set out in marginal Note¹.

On the same day, an information was filed. It contained four counts, each charging a violation of 18 U.S.C.A. § 415 now § 2314. Cherrie was brought before the court, and the following colloquy occurred between the court and Cherrie:

"The Court: * * * You are held under a charge of transporting a falsely made security, a check dated October 5, 1945, drawn on the United States National Bank, Denver, Colorado, payable to P. J. Ryan, signed by M. F. Johnson for the Drilling and Exploration Company of Denver in the amount of $158 to be transported in interstate commerce from the City of Evanston in the County of Unita in the State and District of Wyoming to the City of Denver. And in the second count transporting a false security from the City of Rawlins in the County of Carbon in the state and District of Wyoming to the City of Denver. Third count 13th of October 1945 in the District of Wyoming a check dated October 5, 1945 caused to be transported in interstate commerce from the City of Laramie to the City of Denver. Fourth count transporting a false security in the sum of $158.18 in interstate commerce from the City of Cheyenne in the County of Laramie to the City of Denver. Under this form of charge upon which you are held you have the right to have your case presented to a grand jury in which event you can plead guilty or not guilty and if not guilty, be entitled to trial by jury but the law provides you can waive an indictment and consent to be prosecuted by an information filed by the United States Attorney in which event you have the identical rights under an information as you have under an indictment. You understand that? A. Yes, sir.

"The Court: Under these circumstances do you desire to waive an indictment? A. Yes, sir.

* * * * * *

"The Court: Are you ready to plead to this information of which I have heretofore outlined in regard to the charge against you without the assistance of counsel to which you are entitled? A. Yes, sir.

"The Court: And at this time do you plead guilty or not guilty? A. Guilty."

The court then continued the matter for a pre-sentence investigation, and on August 5, sentenced Cherrie to imprisonment for three years on each count, to run concurrently.

The report of the probation officer disclosed that Cherrie was sentenced to a term of 2 to 20 years in the Washington State Reformatory in 1941 and was paroled after serving 11 months of his sentence.

The motion to vacate was predicated on the ground that Cherrie did not voluntarily, intelligently, and competently waive his right to the benefit of counsel when he signed the written waiver of indictment and when he entered his plea of guilty to the several counts of the information. In disposing of the motion, the trial judge, in a written memorandum, recited the proceedings on June 24, 1948, and stated that he personally remembered what occurred at such proceedings, and further said: "This personal recollection impressed me with the intelligence of the defendant and that he knew what he was doing at the time so that he intelligently waived the assistance of counsel after he had been advised that he was entitled to it by law."

It will be observed that Cherrie signed the waiver of indictment without the advice of counsel, and that when he was brought before the court, the only statement advising him of his constitutional right to counsel for his defense was by the indirect statement: "Are you ready to plead to this information of which I have heretofore outlined in regard to the charge against you without the assistance of counsel to which you are entitled?"

In Von Moltke v....