Macon v. United States, 23201.

• Decision Date: 07 August 1969
• Docket Number: No. 23201.,23201.
• Citation: 414 F.2d 1290
• Parties: Willie Charles MACON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

414 F.2d 1290 (1969)

Willie Charles MACON, Appellant, v. UNITED STATES of America, Appellee.

No. 23201.

United States Court of Appeals Ninth Circuit.

August 7, 1969.

Willie Charles Macon, pro. per., for appellant.

Edward E. Davis, U. S. Atty., Lawrence Turoff, Asst. U. S. Atty., Phoenix, Ariz., for appellee.

Before HAMLIN, MERRILL and ELY, Circuit Judges.

MERRILL, Circuit Judge:

For acts committed upon an Indian Reservation, located in Arizona, appellant was charged with burglary under the Assimilative Crimes Act, 18 U.S.C. § 1152. He pleaded guilty and was sentenced to five years imprisonment. In these proceedings, for the second time, he seeks relief under 28 U.S.C. § 2255. The District Court denied his motion without evidentiary hearing on the ground that it simply presented again the claims advanced by him on his first motion.

Appellant's first 2255 motion also was denied without evidentiary hearing. By that motion appellant claimed that his guilty plea had been induced by promises of leniency. The allegations were, however, in general and conclusionary terms. There was no factual allegation respecting the substance of any promise nor the circumstances under which it had been made.

In these proceedings appellant again advances this claim. Again, it is wholly lacking in factual allegations sufficient to warrant either hearing or response by the Government.

One new claim is advanced: that the trial court did not ascertain whether the guilty plea was intelligently entered as required by Rule 11, F.R. Cr.P. Relying upon McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) and Heiden v. United States, 353 F.2d 53 (9th Cir. 1965), appellant contends that his sentence and plea should, for this reason, be set aside.¹

The record supports appellant's contention that the trial court failed to comply with the requirements of Rule 11, in that it failed adequately to ascertain appellant's understanding of the nature of the charge against him and the consequences of his plea. This alone, however, is not sufficient to bring the rule of McCarthy and Heiden into play. Those cases hold that an alleged lack of understanding need not be proved once it has been established that the trial court failed to make the ascertainment of understanding required by Rule 11. The cases contemplate, however, that lack of understanding shall at least be alleged. In Heiden it was stated:

"Prejudice, then, is established when lack of understanding in a specific and material respect is sufficiently alleged and such asserted lack, if it existed, would have been disclosed by a proper examination by the trial judge." 353 F.2d at page 55.

Here, appellant alleged that his understanding of the crime with which he was charged was that it was second-degree burglary while in fact he was charged with the greater crime of "Burglary on an Indian Reservation." Appellant, however, was correct in his original understanding. He was charged with second-degree burglary and the sentence imposed was the maximum provided for that crime under Arizona law.

In his brief appellant includes an unsworn assertion of further misunderstanding: he believed that trespass, or entry without breaking, was sufficient to constitute the crime (assuming, of course, the requisite intent to commit a felony therein). Again, in this respect, appellant was correct in his understanding. Under Arizona law, breaking is not a necessary element of the crime of burglary. State v. Owen, 94 Ariz. 350, 385 P.2d 227 (1963); McCreary v. State, 25 Ariz. 1, 212 P. 336 (1923).

We note that appellant has not alleged a belief that something less than five years was, under law, the maximum sentence he could suffer. Indeed, his claim of a belief that he would be treated with leniency suggests knowledge of the legal maximum and an understanding that a lesser sentence would result not from law but from an exercise of sentencing discretion.

Appellant has, then, failed to allege lack of understanding in any respect and accordingly has failed to allege that any prejudice resulted from the trial court's departure from the requirements of Rule 11.

Judgment affirmed.

ELY, Circuit Judge (dissenting):

I respectfully dissent. Since the sentencing judge accepted the plea of guilty without personally communicating any advice whatsoever to the accused, there was, as the majority recognizes, manifest failure to comply with the requirements of Rule 11, Fed.R.Crim.P. Notwithstanding, the majority affirms upon its conclusion that Macon did not, in his petition, allege that he was unaware, before he entered his plea, of all the possible consequences which might follow that plea. This approach, so narrowly technical, is an avenue which I cannot take, especially since, as the majority also recognizes, Macon would not have been required to prove the allegation had it been made. Heiden v. United States, 353 F.2d 53 (9th Cir. 1965). Moreover, I believe that the petition did, in effect, contain the allegation. It clearly alleged the court's failure...