Harris v. United States, 73-1852.
| Decision Date | 04 March 1974 |
| Docket Number | No. 73-1852.,73-1852. |
| Citation | 493 F.2d 1213 |
| Parties | Richard Page HARRIS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Michael H. Irvine, Cedar Rapids, Iowa, for petitioner-appellant.
Evan L. Hultman, U. S. Atty., and Robert L. Sikma, Asst. U. S. Atty., Sioux City, Iowa, for respondent-appellee.
Before GIBSON, STEPHENSON and WEBSTER, Circuit Judges.
Certiorari Denied June 10, 1974. See 94 S.Ct. 3076.
Petitioner-Appellant, Richard Page Harris, contends that he was not made aware of the consequences of his guilty plea in violation of Fed.R.Crim.P. 11. The contention1 is raised on appeal from the denial of his motion to vacate sentence. 28 U.S.C. § 2255. We affirm.
Pursuant to a Writ of Habeas Corpus ad prosequendum, appellant was temporarily in the custody of the United States Marshal at Cedar Rapids, Iowa having been transferred from Bakersfield County Jail, California. He was then serving an indeterminate sentence of from one to fourteen years on state charges.
Harris pled guilty to the crime of interstate transportation of falsely made and forged securities. He was sentenced to 10 years imprisonment by United States District Judge McManus.2
Harris, in substance, complains that because 18 U.S.C. § 35683 leaves a federal judge powerless to impose a federal sentence to run concurrently with any state sentence, the impact of that statute must be made known to the defendant when he pleads in order that he understand the "consequences of his plea." Fed.R.Crim.P. 11. He cites United States v. Myers, 451 F.2d 402 (CA9 1972). Myers held that 18 U.S.C. § 3568 affects the maximum imprisonment and is therefore one of the consequences of the plea covered by Rule 11. The court held that Myers' rights had been violated because he "had no reason to know that the sentencing judge did not have discretion to determine when the federal sentence would begin, nor to impose a federal sentence concurrent with any state confinement" and "the defendant was unaware of the facts which he needed to make an assessment (he didn't know when his federal sentence would begin)."
Of course, compliance with Rule 11 depends in each case upon the complexity of the charge and the surrounding circumstances, including the defendant's age and record and whether he was represented by counsel. Eagle Thunder v. United States, 477 F.2d 1326, 1328 (CA8 1973).
We impose no requirement "that the Judge mount the bench with a script in his hand." Sappington v. United States, 468 F.2d 1378, 1380 (CA8 1972). However, there must be substantial compliance with Rule 11. This mandates that the district court must be satisfied that the defendant understands the consequences of his plea which includes an understanding of the maximum penalty possible for the offense. United States v. Richardson, 483 F.2d 516, 519 (CA8 1973).
We have not passed on the issue raised in Myers, supra, as to whether under Rule 11 a defendant in state custody must be informed that his federal sentence will not start to run until such time as he is released from state custody and received at the federal institution for service of such sentence.4 We find it unnecessary to reach that issue here.
We are satisfied from this record that the defendant, Harris, was fully aware that his sentence could run consecutively with his state sentence. He indicated to the court "I was hoping the sentence would run with the sentence in the state of California." Prior to sentence his attorney made a plea for a concurrent sentence.5 Harris is a man in his forties with a criminal record extending back to his teen years. At the time of his guilty plea in Iowa appellant was faced with felony charges in at least three federal courts. Moreover, one of the charges was dismissed by reason of a plea bargain upon his guilty plea in Iowa.
Under all the circumstances we find there was substantial...
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Kincade v. U.S.
...of operation of section 3568 not plain error permitting consideration of the issue for the first time on appeal.); Harris v. United States, 493 F.2d 1213 (8th Cir.), cert. denied, 417 U.S. 949, 94 S.Ct. 3076, 41 L.Ed.2d 670 (1974) (prisoner aware sentence could be consecutive to state sente......
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U.S. v. Degand, No. 79-1549
..."Hope" of a different result can hardly be said to deprive a guilty plea of its voluntary character. See, e. g., Harris v. United States, 493 F.2d 1213, 1214 (8th Cir.), Cert. denied, 417 U.S. 949, 94 S.Ct. 3076, 41 L.Ed.2d 670 (1974). Furthermore, the erroneous advice of counsel as to the ......