Houmis v. U.S.
| Decision Date | 03 May 1977 |
| Docket Number | No. 76-1333,76-1333 |
| Parties | Mark HOUMIS, Appellant, v. UNITED STATES of America, Appellee. . Submitted Under Third Circuit Rule 12(6) |
| Court | U.S. Court of Appeals — Third Circuit |
Blair A. Griffith, U. S. Atty., W. D. Pa., Pittsburgh, Pa., David M. Curry, First Asst. U. S. Atty., Edward J. Schwabenland, Asst. U. S. Atty., for appellee.
Mark Houmis, pro se.
Submitted Under Third Circuit Rule 12(6) May 3, 1977
Before GIBBONS and HUNTER, Circuit Judges, and LAYTON, Senior District Judge. *
This is an appeal from the denial by the United States District Court for the Western District of Pennsylvania of a petition to vacate a sentence.
On September 26, 1973, Mark Houmis pled not guilty to a seven-count indictment charging counterfeiting in violation of 18 U.S.C. §§ 371, 471-72.
On December 4, 1973, Houmis decided to change his plea to guilty on Count II of the indictment and a hearing was held pursuant to Rule 11, F.R.Cr.P. Sentencing was postponed until January 11, 1974, at which time Houmis was sentenced to a term of 8 years, 5 years of which were to run concurrently with a 5 year sentence which he was then serving on another charge.
After several unsuccessful efforts to obtain relief from this sentence, on January 3, 1975, Houmis petitioned for relief under 28 U.S.C. § 2255. A second hearing was held in May 1975. On December 30, 1975, the court denied relief and Houmis has appealed.
The principal grounds for appeal are (1) that the sentence was inconsistent with a plea bargain made between Houmis and the United States Attorney prior to the Rule 11 hearing; and (2) that Houmis was denied the effective assistance of counsel at the hearing because his attorney was then representing two other defendants in the same case under circumstances indicating that he was acting under a conflict of interest.
Because both the record and the district court's opinion reflect substantial confusion regarding whether the defendant understood the agreement, and thus leave doubt whether any "meeting of the minds" ever resulted from plea negotiations, we cannot reach the first issue, and need not reach the second. Instead we are remanding with instructions that the defendant be given an opportunity to withdraw his plea.
At the plea hearing, Houmis took the position that he agreed to plead guilty on two conditions: (1) that Barbara Ross and Sandy Antosz, two other joint defendants in the same case, be relieved from prosecution and (2) that he would receive no more than a 5 year sentence to run concurrently with another sentence that he was then serving. The pertinent portions of the record of the plea hearing follow:
Sheinman: (defense counsel) "What he (defendant) meant was, your Honor, that Sandra Antosz and Barbara Ross should have the complaints dismissed against them because he felt that they didn't do anything wrong . . . and if the United States Attorney's office would go along with a sentence that he (defendant) would have not in excess of what he was doing, 1 concurrent with his time. . . .
I assume that is true, isn't it?"
(Emphasis supplied.)
Curry: (United States Attorney) "That is correct, your Honor." 2 (Emphasis supplied.)
Later, during the hearing, Sheinman goes on to say:
"And I approached Mr. Curry the other day, I said that Mr. Houmis wanted to do this (plead guilty) and whether Mr. Curry would state to the court that he wouldn't have any objection to the court imposing a sentence . . . not in excess of what he is doing, to go concurrent with what he is under."
Curry: "That is substantially correct, your Honor . . . I have stated to him that the Government's position is, that the establishment the determination of an appropriate penalty is purely within the discretion of the court." 3
However, to demonstrate that the defendant did not clearly understand the effect of this warning, we point to the colloquy which followed later in the hearing:
Houmis: "Am I pleading voluntarily?"
The Court: "Yes."
Houmis: "Yes, because of "
The Court, not allowing him to finish: "And have any threats been made to you?"
Houmis: " 4 (Emphasis supplied.)
At this point, Curry interposed:
To which Curry replied:
The Court: "That's what's been represented to you, Mr. Houmis?"
Houmis: "It was represented to me that I wouldn't "
At this critical juncture, Houmis is prevented from an answer by an interruption on the part of Sheinman:
Sheinman: "Yes, I think we are, your Honor. And I think maybe, if you call upon him, he might say things and might not get it out just as, perhaps, as maybe as fluently as his counsel, or he might get it out more. I told him that I was going to ask the Government, if I made this statement to the Court, the Court would do it, would they not have any objections, and he said he would not. We do understand, and I think Mark understands, that the final decision is still with the Court.
Is that about fair, Mark?" (Emphasis supplied.)
Houmis: "Yes." 5
A plausible argument can be made that Houmis understood that, despite the recommendation of the United States Attorney, the court was free to impose whatever penalty it saw fit. This is what Curry stated with reasonable clarity at least twice. But it is equally apparent that Houmis may not have understood the effect of Curry's statement that, like most laymen, he regarded the promise not to object as though tantamount to an agreement on a 5 year concurrent sentence. Thus, he answered, "(t)his promise that I wouldn't get any extra time exceeding my sentence that is why I am pleading guilty." And at the most critical point in the proceeding where Houmis is again about to explain his understanding of the agreement "It was represented to me that I wouldn't ," the court allowed Houmis to be interrupted by his counsel, "(l)et me see if I can explain this to him."
The district court's opinion contains similarly contradictory conclusions regarding the defendant's understanding of the plea agreement. At one point the court noted, "(t)he record shows that the defendant did apparently think that he would receive no greater a period of imprisonment than that already imposed by Judge Rosenberg." 6 (Emphasis supplied.) Yet the court later found "that the petitioner at all times was aware that the final disposition of this matter was for the court." 7 These conclusions might properly be read as consistent were the record to show that Houmis, after displaying a firm understanding of the court's role in sentencing, felt that in all probability, the court would, in fact, impose a sentence both concurrent and coterminous with that already being served. However, the record supports no such proposition.
Paradiso v. United States, 482 F.2d 409 (3d Cir. 1973) is a case with somewhat similar facts. There we took the occasion to say:
We believe that it is appropriate at this time for the district courts of the circuit to take similar prophylactic measures to cope with this problem. In connection with their rule 11 inquiry on a plea of guilty, district judges should in essence inform the defendant that plea...
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