Freeman v. United States

• Decision Date: 26 November 1965
• Docket Number: No. 19961.,19961.
• Parties: Harry Floyd FREEMAN, Appellant, v. UNITED STATES of America, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

350 F.2d 940 (1965)

Harry Floyd FREEMAN, Appellant, v. UNITED STATES of America, Respondent.

No. 19961.

United States Court of Appeals Ninth Circuit.

September 13, 1965.

Supplemental Order November 26, 1965.

Harry F. Freeman, in pro. per.

Manuel L. Real, U. S. Atty., John K. Van de Kamp, Asst. U. S. Atty., Chief, Crim. Div., J. Brin Schulman, Asst. U. S. Atty., Asst. Chief, Crim. Div., Robt. M. Talcott, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before CHAMBERS and BROWNING, Circuit Judges, and MUECKE, District Judge.

MUECKE, District Judge.

This is an appeal from an order of the United States District Court for the Southern District of California, entered December 11, 1964, denying appellant's Motion to Vacate and Set Aside his sentence, pursuant to 28 U.S.C.A. § 2255 (1948).

An indictment was returned by the Grand Jury for the Southern District of California on April 11, 1960 charging appellant with a violation of the Dyer Act, 18 U.S.C.A. § 2312 (1948). On April 18, 1960, appellant, represented by counsel, was arraigned and entered a plea of guilty before the Honorable Myron D. Crocker. On May 16, 1960 appellant was sentenced by Judge Crocker to the custody of the Attorney General for a period of five years, with an accompanying order that a study be made of him, pursuant to 18 U.S.C.A. § 4208 (1958), Fixing Eligibility for Parole. On August 15, 1960, the appellant, with counsel, again appeared before Judge Crocker, who, on the basis of the results of the study, modified the sentence previously imposed on appellant so as to commit him to the custody of the Attorney General for treatment and supervision pursuant to the Youth Corrections Act, 18 U.S. C.A. § 5010(b) (1950).

An examination of the reporter's transcript of this sentencing proceeding reveals that the Court informed the appellant of the nature, scope, and purpose of the Youth Corrections Act. However, at least as far as the record is concerned, the Court failed to advise appellant that the maximum sentence under the Youth Corrections Act was one year longer than that possible under the Dyer Act, i. e. six years, rather than five years.¹ It appears the Court actually misinformed appellant by twice stating to him that the maximum sentence was four years:

"So that is what I have in mind for you, is an indeterminate type of sentence, in which as soon as you show the authorities you can accept your responsibilities they can release you, whether it be a day, or a month, or a maximum of four years." (Emphasis added). (S. C. T. 6)

After the imposition of sentence, the Court again admonished the appellant:

"So if you want to grow up and assume your responsibilities you will be out in a short while. Otherwise you will be there as long as four years." (Emphasis added) (S. C. T. 8)

Appellant was paroled on November 29, 1962, pursuant to 18 U.S.C.A. § 5017(c), having served approximately two and one-quarter years. Immediately thereafter he was taken into custody by the State of New York to answer charges there pending against him. A sentence of imprisonment for four months resulted, execution of which was suspended. On October 3, 1963 appellant was convicted of violation of 18 U.S.C.A. § 2312, Dyer Act), in the United States District Court for the Western District of Texas and was sentenced to imprisonment for a term of three years.

On March 11, 1965, a hearing was held to determine whether appellant had violated the conditions of his parole by virtue of his latest conviction. On April 12, 1965, the Board of Parole revoked appellant's parole. Appellant is presently confined at the Federal Correctional Institution, Danbury, Connecticut, serving the three year sentence imposed as the result of his 1963 conviction in the Western District of Texas, as well as the remainder of his original sentence under the Youth Corrections Act.

The question presented by this appeal is whether the petitioner has a remedy under 28 U.S.C.A. § 2255 by virtue of the fact the trial judge may not have informed him that under the Youth Corrections Act the statute subjected the defendant to a possible maximum sentence of six years confinement.

This issue has been decided by both the Fourth and Fifth Circuits. The Fourth Circuit, in Pilkington v. United States of America, 315 F.2d 204 (4th Cir. 1963) has held that a defendant who pleads guilty in reliance on a representation by the sentencing judge that the maximum penalty for the offense charged was five years imprisonment, and who then was sentenced under the provisions of the Youth Corrections Act without being informed of a possible six year sentence, was entitled to a hearing to determine the voluntariness of his plea of guilty.

The Fifth Circuit, in Marvel v. United States of America, 335 F.2d 101 (5th Cir. 1964) has adhered to the contrary viewpoint, relying on its earlier decision in Cunningham v. United States of America, 256 F.2d 467 (5th Cir. 1958), which held that the appellant, having been advised by the court of the existence and benefits of the Youth Corrections Act and of the opportunity of being committed as a youthful offender "in lieu of the penalty of imprisonment otherwise provided by law", tacitly assented to the range of allowable punishments under the Youth Corrections Act. Thus, there exists a direct conflict between the Fourth and Fifth Circuits.

We have previously approved of the Pilkington decision. In Young Hee Choy v. United States, 322 F.2d 64 (9th Cir. 1963) we stated, footnote nine:

"We believe that where a defendant pleads guilty to an offense where the maximum penalty is less than six years and is eligible for sentencing under the Federal Youth Corrections Act, he should be advised that he could be sentenced under the Federal Youth Corrections Act and that he could not be unconditionally released prior to six years. Pilkington v. United States, 315 F.2d 204 (4th Cir. 1963)."

On a second appeal by the same appellant, Young Hee Choy v. United States, 344 F.2d 126 (9th Cir. 1965), we noted that the facts of that case differed sharply from those in Pilkington, because the sentencing judge had pointed out to the appellant that the original sentence was for imprisonment for a period of two years and that under the Youth Corrections Act the sentence would be for an indefinite period, during which he might be released conditionally not more than four years after his conviction and unconditionally not more than 6 years after his conviction.

This was not done in the instant case. Therefore, we specifically now hold that a defendant who pleads guilty to an offense where the maximum penalty is less than six years and is eligible for sentencing under the Federal Youth Corrections Act, should be advised that he could be sentenced under the Federal Youth Corrections Act and that he could be "released conditionally under supervision on or before the expiration of four years from the date of his conviction and * * * discharged unconditionally on or before six years from the date of his conviction." 18 U.S.C.A. § 5017(c) (1950).

Appellant is being deprived of his liberty for a longer period than he was informed at the time his plea of guilty was entered. Rule 11, Federal Rules of Criminal Procedure, demands that the Court not accept a plea of guilty "without first determining that the plea is made voluntarily with understanding of the nature of the charge." This provision is merely an enunciation of the admonition by the United States...