Heiden v. United States

• Decision Date: 02 November 1965
• Docket Number: No. 19536.,19536.
• Citation: 353 F.2d 53
• Parties: George Richard HEIDEN, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

353 F.2d 53 (1965)

George Richard HEIDEN, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 19536.

United States Court of Appeals Ninth Circuit.

November 2, 1965.

George Richard Heiden, Jr., in pro. per.

Jo. Ann D. Diamos, U. S. Atty., Henry L. Zalut, Asst. U. S. Atty., Phoenix, Ariz., for appellee.

Before CHAMBERS, BARNES HAMLEY, JERTBERG, MERRILL, KOELSCH, BROWNING, DUNIWAY and ELY, Circuit Judges.

MERRILL, Circuit Judge:

Appellant having pleaded guilty and waived counsel, was convicted of the crime of bank robbery and sentenced to a term of 20 years' imprisonment by the District Court for the District of Arizona. Under Title 28 U.S.C. § 2255, he seeks to set aside his sentence, contending that he had not intelligently pleaded or waived counsel. Among his many contentions in this respect is his assertion that he was misinformed as to the consequences of his plea and believed that the maximum sentence would be for ten years.

Rule 11, F.R.Cr.P., provides in part:

"The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge."

At no time, either on arraignment or subsequently, did the District Court, pursuant to this Rule, determine that the plea was made with an understanding of the nature of the charge. At no time did the court inquire into the degree to which waiver of counsel was intelligently made.

Hearing on appellant's petition in the present proceedings was granted by the court below. At this hearing an agent of the Federal Bureau of Investigation and an Assistant United States Attorney each testified that he had disclosed to appellant that the crime charged carried a 20-year sentence. The appellant himself was interrogated at length. He adhered to his claim that the extent of sentence had been misrepresented to him. The District Court found in part "that petitioner's waiver of counsel at the time of his arraignment was made intelligently and with full knowledge of his rights * * * that petitioner's plea of guilty entered at the time of his arraignment was made voluntarily and with full knowledge of the nature of the charge against him and of the maximum penalty to be imposed."

There is no question but that the record amply supports the court's findings and supplies basis for disbelief of the appellant. The question is whether such findings can suffice to eliminate prejudice resulting from failure of the court, at the time of arraignment and waiver of counsel, to make the necessary ascertainment of understanding. In our judgment, they do not.

In Johnson v. Zerbst, 304 U.S. 458, 465, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1937), the Court states:

"The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record" (emphasis supplied).

Rule 11 is mandatory. Munich v. United States, 337 F.2d 356 (9th Cir. 1964). It is contemplated by that Rule, and is the holding in Johnson v. Zerbst, that the fact that a plea was intelligently entered and that counsel was intelligently waived must be ascertained at the time of arraignment or of waiver and not after the fact. When this...