Kienlen v. United States, 9104.

• Decision Date: 25 May 1967
• Docket Number: No. 9104.,9104.
• Citation: 379 F.2d 20
• Parties: Maurice Anton KIENLEN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

379 F.2d 20 (1967)

Maurice Anton KIENLEN, Appellant, v. UNITED STATES of America, Appellee.

No. 9104.

United States Court of Appeals Tenth Circuit.

May 25, 1967.

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Howard Washburn, Kansas City, Kan., for appellant.

Thomas E. Joyce, Asst. U. S. Atty., Kansas City, Kan., for appellee.

Before MURRAH, Chief Judge, HICKEY, Circuit Judge, and CHRISTENSEN, District Judge.

MURRAH, Chief Judge.

Appellant was sentenced on a plea of guilty to a one count indictment charging him and a co-defendant with bank robbery in violation of 18 U.S.C. § 2113 (a) and (d). He filed a motion for a new trial which was also treated by the court as notice of appeal. The motion for new trial was overruled because untimely filed, but the appeal was allowed. Counsel was appointed and the appeal perfected to this court. Contemporaneously with his motion for new trial, appellant filed a petition for writ of habeas corpus in the sentencing court which was treated as a 2255 motion to vacate sentence. An attorney was appointed and extensive evidentiary hearings were held. The petition was denied, and appellant has not appealed from that order.

On this appeal Kienlen first attacks the sufficiency of the indictment, contending that it failed to state an offense under 28 U.S.C. § 2113(a) because it did not allege the deposits of the bank were insured by the Federal Deposit Insurance Corporation. The indictment did, however, allege that the bank "was at that time a member of and insured by the Federal Deposit Insurance Company of the United States." We held a nearly identical indictment valid in Bailey v. United States, 10 Cir., 340 F.2d 602. In accord, Hewitt v. United States, 8 Cir., 110 F.2d 1, cert. den. 310 U.S. 641, 60 S.Ct. 1089, 84 L.Ed. 1409; Rawls v. United States, 10 Cir., 162 F.2d 798, cert. den. 332 U.S. 781, 68 S.Ct. 47, 92 L.Ed. 364; Steffler v. United States, 7 Cir., 143 F.2d 772, cert. den. 323 U.S. 746, 65 S.Ct. 73, 89 L.Ed. 597.

The indictment is also assailed because it fails to allege that the appellant assaulted and put lives in danger by the use of a dangerous weapon "while committing an offense in violation of 18 U.S.C. 2113(a)." It is thus apparently contended that the indictment failed to state a violation of 2113(d), which authorizes punishment not to exceed 25 years as opposed to the 20 year maximum sentence authorized by 2113(a). The one sentence indictment charged the taking of money belonging to the bank, a violation of 2113(a), and further charged that "in taking said money they did assault and put in jeopardy the lives * * * of employees by use of dangerous weapons, to-wit: loaded revolvers, in violation of 18 U.S.C. 2113 (a) and (d)." This indictment clearly describes substantially in the language of the statute a violation of both 2113(a) and (d). It is entirely sufficient to inform the accused of the nature of the offenses charged. See Flores v. United States, 10 Cir., 338 F.2d 966. And, moreover, while the sentence for violation of the various offenses described in 2113 may not be pyramided, i. e. see Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370, the total sentence of 12 years imposed in this case is well within the maximum prescribed for violation of either 2113(a) or (d).

Appellant also contends that his sentence was excessive. He points out that the 12 year sentence given him was nearly twice that assessed his co-defendant, and alleges that this resulted from confusion concerning the enhanced penalty provided by 2113(d). But, to repeat, the sentence was well within the maximum prescribed by both 2113(a) and (d). The record reveals no "confusion" or any other occurrence which would warrant our interference with the trial court's judgment. See Martin v. United States, 10 Cir., 364 F.2d 894.

Kienlen next contends that his plea of guilty was not voluntarily and intelligently entered. This proposition could and should have been raised by a F.R.Crim.P. 32(d) motion under which, to correct manifest injustice, the court may, after sentence, set aside the judgment of conviction and permit the defendant to withdraw his guilty plea. Indeed, the appellant did in his pro se motion for new trial (which was denied by the court because untimely filed and treated as notice of appeal) use language which can be read to invoke 32(d). While the court did not consider the motion for new trial as a 32(d) motion, he did consider the identical issue of voluntariness of the plea under the contemporaneous motion for 2255 relief. We shall thus treat the postsentence pleadings in this case as in the nature of a 32(d) motion and this as an appeal from denial of relief thereunder, i. e. Cf. Bartone v. United States, 375 U.S. 52, 84 S.Ct. 21, 11 L.Ed.2d 11. And, in light of the presentence record and the record of the 2255 evidentiary hearing, both of which are a part of this record on appeal, we shall consider the question whether it is manifestly unjust to preclude withdrawal of the guilty plea based upon a finding that it was voluntarily and understandably entered.

As briefed in this court, the asserted involuntariness of the plea is said to arise from the fact that appellant's appointed counsel incorrectly advised him concerning the legal test of mental responsibility for the criminal act admittedly committed by the appellant. Specifically, it is pointed out that Kienlen originally pleaded not guilty by reason of insanity, but subsequently changed his plea to guilty after counsel advised him that mental responsibility in this circuit was governed by M'Naughten, when as a matter of law the controlling test is stated in Wion v. United States, 10 Cir., 325 F.2d 420.¹ He argues, in effect, that if he had been advised that the broader test of Wion was applicable, he would not have changed his plea. From this he contends that his plea was not knowingly and understandably entered, hence involuntary.

It is settled that one who enters a guilty plea has no right to withdraw it, and that an application under 32(d) is addressed to the sound discretion of the court. See Callaway v. United States, 10 Cir., 367 F.2d 140; Criser v. United States, 10 Cir., 319 F.2d 849; Pinedo v. United States, 9 Cir., 347 F.2d 142, cert. den. 382 U.S. 976, 86 S.Ct. 547, 15 L.Ed.2d 468; and see Lattin v. Cox, 10 Cir., 355 F.2d 397; Maez v. United States, 10 Cir., 367 F.2d 139; Oksanen v. United States, 8 Cir., 362 F.2d 74, a case involving a presentence 32(d) motion. And, "Mistakes of counsel are not grounds for relief unless the proceedings were a mockery or resulted in the deprivation of constitutional rights." Criser v. United States, supra, 319 F.2d 850. With these principles in mind we must look to the whole record before us to determine whether it is manifestly unjust to preclude withdrawal of appellant's guilty plea.

Kienlen's first appearance before the court was in December of 1965. At that time it was suggested that he had a history of mental difficulties and he was accordingly committed pursuant to 18 U.S.C. § 4244 to the Medical Center for Federal Prisoners at Springfield, Missouri, for a determination of his present mental capacity and his ability to assist in his own defense. After 90 days' observation and examination, he was found to be "mentally capable of comprehending his position and assisting counsel in his defense."

On March 18, 1966, appellant was brought before the court for arraignment. When informed of the results of the 4244 examination, he stated that he had no disagreement with that report.² Counsel, with whom appellant had previously conferred, was appointed to represent him, and appellant then entered his plea of not guilty by reason of insanity.

Appellant next came before the court about six weeks later for a hearing on certain defense motions. At the beginning of the hearing, appointed counsel stated that Kienlen had indicated a desire to change his plea. When the court asked counsel if he was satisfied that appellant knew what he was doing, counsel replied that he thought so, but stated that since the decision to plead guilty was Kienlen's alone, perhaps the court should question him. The court thereupon questioned Kienlen at some length, ascertaining that he understood and confirmed what his attorney had said relative to his desire to enter a change of plea. Kienlen stated his understanding that by a plea of guilty he would admit all the facts alleged in the indictment, waive his right to jury trial and subject himself to punishment within the maximum fixed by law, i. e. $10,000 or 25 years or both. He further stated that he had not been led to believe he would receive a lesser punishment by pleading guilty, that he had received no promises, and that he had not been threatened or abused in any way while in custody. The following colloquy then occurred.

"The Court: Is your memory clear about what happened on this day in question?

"Defendant Kienlen: Yes, sir, it is.

"The Court: And you related those facts to your attorney?

"Defendant Kienlen: Yes, sir.

"The Court: And is there any question in your own mind about your own sanity?

"Defendant Kienlen: No, sir, there is no question in my mind about my own sanity, but, sir, prior to this, I was very emotionally disturbed and everything, Your Honor, but I do realize that I did wrong but I feel at the time of the alleged offense and prior to it, the circumstances leading up to it, that I was emotionally disturbed.

"The Court: You had had some difficulty with your family or something of that sort?

"Defendant Kienlen: Yes, sir.

"The Court: And is this what you are telling me, that you were mad at the world and you just didn\'t give a hang?

"Defendant Kienlen: No, sir. I don\'t know actually how to go about it. It was with my child and my wife, and that is the big thing there, sir.

"The Court: But you did know what you were doing when you did it?

"Defendant Kienlen: Yes, sir, I did. With all these answers before him along with...