Government of Virgin Islands v. Berry, 79-2813
| Decision Date | 07 August 1980 |
| Docket Number | No. 79-2813,79-2813 |
| Citation | 631 F.2d 214 |
| Parties | GOVERNMENT OF the VIRGIN ISLANDS v. Don BERRY, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
Alexander A. Farrelly (argued), Birch, DeJongh & Farrelly, St. Thomas, V. I., for appellant.
Ishmael A. Meyers, U. S. Atty., James S. Carroll, III (argued), Asst. U. S. Atty., Charlotte Amalie, St. Thomas, V. I., for appellee.
Before ADAMS, MARIS and SLOVITER, Circuit Judges.
Appellant, Don Berry, appeals from the trial court's denial of his motion to withdraw his guilty plea to a charge of second-degree murder and from the judgment of conviction. He argues that the trial court abused its discretion in denying his motion and that the sentence imposed on him is a cruel and unusual punishment in violation of the Eighth Amendment. We find no abuse of discretion and no violation of the Eighth Amendment and therefore will affirm the judgment.
On August 21, 1979, a three-count information was filed charging Berry, Elton Rollins and Dale Francois with first-degree murder, V.I.Code Ann. tit. 14, § 922(a)(2) (1964), robbery in the first degree, id. § 1862(2) (Supp.1978), and conspiracy, id. § 551(1) (1964). The information alleged that on or about August 8, 1979, Berry, Rollins and Francois planned and carried out a robbery of marijuana from Vincent "Irby" Bryan, in the course of which Bryan was shot and killed. When the three defendants were arraigned on August 22 and 23, they entered not guilty pleas. Jury trial was set for all three defendants on October 9, 1979. On September 21, Berry moved for severance, partly on the ground that a statement by Rollins inculpated Berry. Thereupon, the court scheduled a separate trial for Rollins, while Berry and Francois were to be tried jointly.
On October 5, Rollins pleaded guilty to second-degree murder under a superseding information pursuant to a plea agreement providing, in part, that he would give full and complete cooperation to the government, including testimony at trial. When the court accepted the guilty plea, it had before it two statements Rollins had given to the police. Although Rollins denied all knowledge of the events in his first statement, in the second statement, he admitted that he, Francois and Berry planned to rob Bryan, but asserted that they did not plan to kill him. He also stated that Berry had unexpectedly shot Bryan during the robbery.
On October 9, a jury was selected for the joint trial of Berry and Francois. On that same day, an amended information was filed, containing a fourth count charging Berry with second-degree murder, and Berry pleaded guilty to this charge. At the guilty plea hearing the judge explained to Berry that the guilty plea was an admission that he had committed the offense, that is, that Berry had "participated in that occurrence that caused the death by shooting," although it was not necessarily an admission that Berry had actually pulled the trigger. The judge explained that for second-degree murder there was a minimum sentence of five years' imprisonment but no maximum sentence, and that since the murder conviction would be Berry's second felony conviction, the government could file a habitual criminal information against Berry, in which case there would be a minimum sentence of ten years' imprisonment and a possible life sentence. V.I.Code Ann. tit. 14, § 61, 1978 V.I.Sess.Laws 247.
The court asked Berry's counsel, Alexander Farrelly, what he understood the plea agreement to be. Farrelly responded that the agreement was that the government would not allocute at sentencing, and that there was no agreement that Berry would testify. James Carroll, representing the government, objected that his understanding was that Berry would cooperate with the government and that he would testify if necessary. Farrelly said that he "would let (Berry) speak for himself, sir, because I only know what he told me just now." Berry stated that he was willing to testify on his own behalf. The court explained that if the court accepted the plea of guilty there would be no trial of Berry himself, and that what the government wanted was for Berry to take the stand against Francois. The court asked whether Berry was willing to do this, and Berry responded that he was.
The court then summarized the agreement as being that Berry would plead guilty to second-degree murder, the government would drop the other charges, the government would not allocute at sentencing, and Berry would take the stand and testify under oath. Berry stated that "the main reason why I take up the bargain in the first place is because Rollins and Francois involving me in this whole thing." The court explained to Berry the difference in penalties between first and second-degree murder. If convicted of the latter there was a possibility of parole after ten years, whereas if convicted of the former there was a mandatory sentence of life imprisonment without parole. V.I.Code Ann. tit. 14, § 923 (Supp.1978). The court stated that it was not interested in why Berry was offering to plead guilty but only in whether the plea agreement, as understood by Berry, had been stated fully. Berry responded that it had been and that he accepted it.
The court informed Berry that he had a right to go to trial and make the government prove its case beyond a reasonable doubt, and that by pleading guilty he was giving up this right. After finishing its explanation, the court gave Berry an opportunity to ask questions. The following dialogue occurred:
Defendant Berry: You are talking about if I plead guilty to Second Degree Murder, I won't have no trial. Is that what you say?
The Court: That is right. You don't need a trial.
Defendant Berry: Okay.
The Court: Because, you see, once you plead guilty and I accept it, you are convicted of the offense and there is no need for a trial because you are admitting you did it. You didn't understand that?
Defendant Berry: That is what I was telling you too. When I plead guilty to Second Degree Murder, me ain't mean that I do it.
The Court: What do you mean?
Defendant Berry: I telling you the extent that the two other defendants involving me in this here, I don't have no other alternative but to plead because of the possibility of the burden what the government could put on me which is life imprisonment, and that is what I am trying to avoid.
The government then stated that it withdrew its offer because Berry's position precluded his testifying truthfully for the government. The court responded:
I accept an offered plea. I am satisfied if he understands by pleading guilty he is admitting he did what is charged as I have explained it to him, and there will be no trial because he is convicted of the offense in his plea of guilty. Have I made that clear to you, sir?
Defendant Berry: Yes.
The Court: And you know a plea of guilty means you admit you did it?
Defendant Berry: Yes.
The Court: Are you offering to plead guilty?
Defendant Berry: Yes.
The court then read the information to Berry, Berry pleaded guilty, and the court accepted the plea. Sentencing was set for November 7.
Berry was not called upon to testify at Francois' trial, which was before a jury. At the trial, both the United States Attorney and defense counsel for Francois in their opening statements identified Berry as the person who shot Bryan. Rollins testified that Berry shot Bryan. Francois did not testify. Francois was found not guilty on October 11.
On October 26, Berry filed a motion under Fed.R.Crim.P. 32(d) to withdraw his plea of guilty. Berry and his counsel Farrelly submitted affidavits in support of this motion. Farrelly averred that on the basis of conversations with counsel for Rollins and counsel for Francois and after attending a hearing on a motion for suppression made by Rollins, he formed the belief, which he conveyed to Berry, that "both Rollins and Francois would implicate (Berry) seriously in the shooting of Mr. Bryan; and would say that Berry was the person who killed Mr. Bryan." Because of this belief, Farrelly recommended to Berry that he negotiate a plea bargain. Both Farrelly and Berry assumed that Francois would testify. In his affidavit, Berry stated that he had several times discussed with Farrelly the possibility of entering a guilty plea, but that he always "expressed little or no interest 'because he had not killed anybody.' " In a Memorandum of Law in support of the motion, Berry argued that he pleaded guilty while "() on a representation which never eventuated," apparently meaning that his entry of a guilty plea was based on a belief that Francois would testify, and that he "lacked the understanding and was never informed that Francois could not be compelled to testify thus negating defendant's ability to make a voluntary and intelligent choice among alternatives."
On November 7, the court denied Berry's motion. Berry was sentenced to 35 years' imprisonment. Rollins was sentenced to 12 years' imprisonment.
On appeal, Berry argues that the sentence imposed on him constitutes a cruel and unusual punishment in violation of the Eighth Amendment. We reject this claim, particularly in light of the recent decision in Rummel v. Estelle, 445 U.S. 263, 100 S.Ct. 1133, 63 L.Ed.2d 382 (1980). There the Court upheld the constitutionality of the Texas recidivist statute under which a life sentence with the possibility of parole within 12 years was imposed after defendant's third felony conviction. The three felonies for which defendant had been convicted were fraudulent use of a credit card to obtain $80 worth of goods or services, passing a forged check in the amount of $28.36, and obtaining $120.75 by false pretenses. Id. at 272, 100 S.Ct. at 1135. The Court noted that "(o)utside the context of capital punishment, successful challenges to the proportionality of particular sentences have been...
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