Horsley v. U.S., 77-2297
| Decision Date | 23 May 1978 |
| Docket Number | No. 77-2297,77-2297 |
| Citation | 583 F.2d 670 |
| Parties | Howard HORSLEY, Appellant, v. UNITED STATES of America. . Submitted under Third Circuit Rule 12(6) |
| Court | U.S. Court of Appeals — Third Circuit |
G. William Bills, Jr., Pittsburgh, Pa., for appellant.
Blair A. Griffith, U. S. Atty., David B. Atkins, Jr., Bruce A. Antkowiak, Asst. U. S. Attys., Pittsburgh, Pa., for appellee.
Before ALDISERT, GIBBONS and HIGGINBOTHAM, Circuit Judges.
This appeal from the district court's denial of Howard Horsley's motion pursuant to 28 U.S.C. § 2255 presents the question whether the trial judge's failure personally to advise an accused of the nature and elements of the offense with which he was charged and to which he pleaded guilty requires that plea to be vacated. Because the record reveals that the plea colloquy did not satisfy the requirements of Federal Rule of Criminal Procedure 11, 1 resulting in prejudice to the appellant, we reverse the decision of the district court and remand the case with instructions that Horsley be permitted to plead anew.
In July 1976 ten defendants, including appellant Horsley, were indicted and charged with conspiracy and substantive violations of the federal narcotics law. Horsley was named as a defendant in count one (conspiracy to distribute heroin in violation of 21 U.S.C. § 846) and count five (possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1)). After initially pleading not guilty before a magistrate, appellant changed his plea on November 8, 1976, to one of guilty to the first count. The trial judge questioned the defendant pursuant to Rule 11, and ultimately accepted the plea. Horsley subsequently received the maximum statutory sentence: 15 years imprisonment to be followed by a special parole term of three years, to run consecutively with any sentence being served by appellant at that time.
Acting at first Pro se, and thereafter through retained counsel, appellant filed a § 2255 motion to vacate the sentence, along with a motion to withdraw the guilty plea. Both motions centered on the allegation that the trial judge failed to advise Horsley of the elements of the offense with which he was charged and that, as a result, the guilty plea was not knowingly and voluntarily entered.
In accord with the Rule 11 mandate that the court inform defendant of, and determine that he understands, the nature of the charge, the court questioned the appellant as follows:
Q. And you have indicated to (the prosecuting attorney) that you received a copy of the indictment in this case and had an opportunity to go over it with your attorney?
A. Yes, sir.
Q. Do you fully understand the charges against you?
A. Yes, sir.
Q. Do you understand the indictment charges you with conspiracy with respect to heroin, and that is the count you are pleading to?
A. Yes, sir.
Q. Have you told Mr. Bogdon all the facts in connection with this charge?
A. I have.
Q. And are you satisfied with Mr. Bogdon as your attorney?
A. Yes.
Our review of the correctness of this Rule 11 proceeding begins with McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). The Supreme Court there concluded that "a defendant is entitled to plead anew if a United States district court accepts his guilty plea without fully adhering to the procedure provided for in Rule 11." Id. at 463-64, 89 S.Ct. at 1169. The Court specifically stated that the Rule requires a district judge to inquire personally into the defendant's understanding of the charge. Id. at 467, 89 S.Ct. 1166.
This court has similarly insisted on strict compliance with Rule 11. In Woodward v. United States, 426 F.2d 959, 962-63 (3d Cir. 1970), we stated:
Routine questioning or a single response by the defendant that he understands the (nature of the) charge is insufficient. To satisfy itself that the defendant actually does comprehend the charges, the court must explain the meaning of the charge And what basic acts must be proved to establish guilt. . . . Because Rule 11 requires that the court address the defendant personally, questioning by the United States Attorney or representation of the defendant by counsel will not discharge the court's duty to interrogate the defendant itself.
(Footnotes omitted and emphasis added). Accord, Paradiso v. United States, 482 F.2d 409 (3d Cir. 1973); United States v. Cantor, 469 F.2d 435 (3d Cir. 1972); United States v. Zampitella, 416 F.Supp. 604 (E.D.Pa.1976).
In view of the clear prescription of these cases that the court Personally inform the defendant of the nature of the charges and the acts which would render him guilty, we must hold that the district court's reliance on appellant's private reading of the indictment and discussions of it with his attorney constitutes error. The court correctly noted that "even reading the indictment to a defendant can satisfy this requirement." Appendix at 5B. We do not quarrel with the court's conclusion that additional explanation of the charge is discretionary and may take into account the totality of the circumstances. Id. However, prior decisions of this court preclude us from permitting the district court to abdicate to the appellant and his attorney responsibility for minimal compliance with Rule 11.
While we conclude that the district court did not comply with the requirements of Rule 11, we must recognize that this appeal is a § 2255 collateral attack on the plea rather than a direct appeal from the judgment of conviction. The government urges us to adopt a "more relaxed" standard of review in the § 2255 context. Appellee's Brief at 6. Its contention is that a litigant who did not appeal his conviction should be required, in the context of a later collateral attack, to demonstrate prejudice flowing from the asserted technical error. Id. at 7.
Indeed, Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974), requires that a different standard be applied in the collateral proceeding than would control the direct appeal. Davis suggests that collateral relief is not available "in the absence of any indication that the defendant was prejudiced" or that the error of law was a "fundamental defect which inherently results in a complete miscarriage of justice." Id. at 346, 95 S.Ct. at 2305. The cases on which we rely in deciding that the district court failed to satisfy Rule 11 requirements were decided before Davis; it is clear that Davis emphasizes the necessity of considering whether the defendant suffered prejudice.
Several courts of appeals have adopted a two-tiered standard in the light of Davis and have denied collateral relief notwithstanding violation of Rule 11. Foremost is Del Vecchio v. United States, 556 F.2d 106 (2d Cir. 1977), notable for its analysis of the differing policies predominating in direct and collateral review. The commendable policy of insuring "that a defendant acted voluntarily and knowledgeably before taking the grave step of pleading guilty and waiving various constitutional rights" should be strictly enforced on direct appeal because violation of the policy will result in the "modest" social price of a short delay caused by allowing the defendant to replead. Id. at 109. Id. The court then held that "a defendant must at least show prejudice affecting the fairness of the proceedings or the voluntariness of the plea in order to succeed in a collateral attack based upon a Rule 11 violation." Id. at 111. The violations found in Del Vecchio all centered around failure to inform the defendants of potential sentence and parole terms. Because "the sentence imposed on Del Vecchio 15 years imprisonment and three years special parole was substantially less than the total of 210 years he was advised was the possible maximum sentence," the court concluded that Del Vecchio was not prejudiced, noting "no case in this circuit in which a guilty plea has been vacated on collateral attack for failure to advise of a special parole term where the prison sentence, combined with the special parole term, was less than the possible maximum of which defendant had been advised." Id.
Although we agree with the Second Circuit's choice of the controlling legal precept mandated by Davis, i. e., that there be a showing of prejudice in a § 2255 proceeding, it is apparent that we differ in interpreting the precept. In Berry v. United States, 412 F.2d 189 (3d Cir. 1969), anticipating the rule that would later be announced in Davis, we rejected the notion that the defendant sustained no prejudice because he received a lighter sentence than the erroneously stated possible maximum. Indeed, the trial court in Berry had adopted the conclusion later to be reached in Del Vecchio and we refused to accept it:
The court's reasoning is based on a false conception of "prejudice." Whether prejudice resulted from the entry of the guilty plea is not measured by the severity or leniency of the sentence imposed; prejudice inheres when an accused pleads guilty, thus convicting himself of a criminal offense, without understanding the significance or consequences of his action.
At base, the difference between our court and the Second Circuit is demonstrated by a reference to Roscoe Pound's three-step analysis of the decisional process: (1) choosing the controlling legal precept, (2) interpreting the chosen precept, and (3) applying the precept so chosen and interpreted to the case at hand. 2 We agree as to the first step and disagree as to the second and the third. 3
Thus, although...
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