Fong v. United States
| Decision Date | 13 May 1969 |
| Docket Number | No. 23760.,23760. |
| Citation | 411 F.2d 1181 |
| Parties | Wayne FONG, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
A. Allan Franzke (argued), of Mautz, Souther, Spaulding, Kinsey & Williamson, Portland, Or., for appellant.
Tommy Hawk (argued), Asst. U. S. Atty., Sidney I. Lezak, U. S. Atty., Richard G. Helegson, Asst. U. S. Atty., Portland, Or., for appellee.
Before CHAMBERS and KOELSCH, Circuit Judges, and BEEKS, District Judge.
Wayne Fong appeals from an order denying his motion to vacate his judgment and sentence. We have jurisdiction under 28 U.S.C. § 2255.
On the day he was to go to trial in May of 1958 appellant pleaded guilty to one count of a twelve-count indictment, which count charged the unlawful sale of narcotics. Before accepting the plea the trial judge carefully ascertained that Fong knew both the nature of the charge to which he wished to plead, and that as a second offender he could be sentenced to imprisonment for a minimum term of ten years and a maximum term of forty years. The trial judge inadvertently failed to inform appellant that he could also be fined up to $20,000.00, and that he would be ineligible for parole. Thereafter, appellant was sentenced to twenty years' imprisonment and fined $1,000.00. Appellant now asserts that the judgment and sentence should be vacated because he was not informed that he would be ineligible for parole and that he could be fined, and because he was not accorded the right of allocution prior to the imposition of sentence.
Under the law as it existed at the time the plea was entered appellant was entitled to know the consequences of his plea.1 Clearly, the fine is a portion of the sentence and therefore a direct consequence of the plea. Consequently, since the Government has not sustained its burden of proving that defendant knew he could be fined as well as imprisoned, the judgment and sentence must be vacated insofar as it exacts a fine of $1,000.00.
Appellant urges retroactive application of Munich v. United States,2 the first case to construe ineligibility for parole as a consequence of the plea. After considering the factors relevant to the issue of retroactivity3 we decline the invitation to apply Munich retroactively.
Finally, appellant's reliance on the caveat of Hill v. United States4 is without merit, for here there are not such "other aggravating circumstances" as might cause application of that dicta.5
As modified, the decision is affirmed.
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...1970), effective May 1, 1971, but applicable only to future prosecutions. P.L. 91-513, Title III, § 1103. 2 Accord, Fong v. United States, 411 F.2d 1181 (9th Cir. 1969), cert. denied 396 U.S. 968, 90 S.Ct. 450, 24 L.Ed.2d 434 (holding that its earlier decision of Munich v. United States, 9t......
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...4 See 26 U.S.C. § 7237(d) (1). 5 We note that the Ninth Circuit later declined to apply the Munich case retroactively. See Fong v. United States, 411 F.2d 1181. However, we do not feel it is a new rule to recognize ineligibility for probation or parole as a material consequence of a plea, b......
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