Oksanen v. United States

• Citation: 362 F.2d 74
• Decision Date: 16 June 1966
• Docket Number: No. 18131.,18131.
• Parties: Andrew Leo OKSANEN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

362 F.2d 74 (1966)

Andrew Leo OKSANEN, Appellant, v. UNITED STATES of America, Appellee.

No. 18131.

United States Court of Appeals Eighth Circuit.

June 16, 1966.

COPYRIGHT MATERIAL OMITTED

Frank T. Knox, of Lanier, Knox & Shermoen, Fargo, N. D., Lanier, Knox & Shermoen, Fargo, N. D., on the brief, for appellant.

Richard V. Boulger, Asst. U. S. Atty., Fargo, N. D., John O. Garaas, U. S. Atty., Fargo, N. D., on the brief, for appellee.

Before MATTHES, MEHAFFY and GIBSON, Circuit Judges.

GIBSON, Circuit Judge.

This is an appeal from the United States District Court of North Dakota. The District Court granted appellant's motion to vacate and set aside his sentence for violation of 18 U.S.C. § 2312 (Dyer Act), on the basis that appellant did not have counsel present at the time of original sentencing in 1955. The District Court, however, refused to set aside appellant's plea of guilty and re-sentenced appellant to a term of three years, with sentence suspended on conditions of probation. Appellant seeks relief by appealing from this judgment.

The Government has questioned our jurisdiction herein, arguing that the appeal should have been taken from the denial of the motion to withdraw the guilty plea and not, as appellant has done, from the final judgment of the trial court. This argument is obviously without merit. Rule 37, Fed.R.Crim.P. clearly allows appeal from a final judgment of the trial court. This final judgment naturally includes all of the prior actions of the trial court to which the appellant is objecting. In this case the judgment specifically includes the setting aside of the sentence, the denial of the motion to withdraw the guilty plea, and the resentencing of appellant. The appeal of this judgment places before us these prior actions of the District Court.

In fact it could be argued that the Government's suggestions would be improper. When the trial court has entered a final judgment, appeal from one of the motions prior to the final judgment would normally be an appeal from a non-appealable interlocutory order. As we stated in Jones v. Thompson, 128 F.2d 888, 889 (8 Cir. 1942):

"Motions to vacate orders, motions for rehearings or for new trials, and like motions are addressed to the discretion of the trial court and are intended to call its attention to errors allegedly committed by it and to afford an opportunity for their correction. Orders granting or denying such motions are not appealable. Conboy v. First National Bank of Jersey City, 203 U.S. 141, 145 27 S.Ct. 50, 51 L.Ed. 128 (other citations omitted)."

We agree with the cases cited by the Government that the denial of the motion to vacate a sentence or withdraw a plea is appealable when it is the final action of the court on the subject. This does not mean, however, that when the trial court consolidates all of its prior actions in a final judgment, this final judgment is not appealable. Undoubtedly, the contrary is true. The final judgment of the District Court is appealable under Rule 37, and this Court has jurisdiction to examine the merits of the appeal.

This case originally arose on January 31, 1955. On that date appellant first appeared before the District Court charged with violating 18 U.S.C. § 2312 (Dyer Act). Accompanied by his court-appointed attorney, appellant waived formal indictment and entered a plea of guilty to the information. Following a pre-sentence investigation the Court on February 16, 1955 sentenced appellant to three years with sentence being suspended and a three year probation imposed. The record indicates that no counsel was present with appellant at the time this sentence was imposed.

Appellant's next appearance before the Court came nearly three years later, on January 3, 1958. On this occasion the District Court ordered probation revoked on the basis of a state car theft conviction in the state of Minnesota on a charge committed about a month after the original 1955 conviction, and ordered probation for another three-year period.¹ No mention was made of absence of counsel at the prior sentencing. Soon thereafter appellant was again convicted and incarcerated in Minnesota under a multiple offender statute in 1958. Then, seven years later, on June 11, 1965, while still imprisoned in Minnesota, appellant filed a motion to vacate the judgment of February 16, 1955, which motion was treated by the Court as a writ of error coram nobis. Simultaneously therewith appellant moved for leave to withdraw the guilty plea entered January 31, 1955. The District Court held a hearing on appellant's motions and ordered vacated the sentence of February 16, 1955 on the basis that appellant was without the aid of counsel at the time the sentence was imposed. This action by the trial court was well founded and is not contested on this appeal. See, Davis v. United States, 226 F.2d 834 (8 Cir. 1955) cert. denied 351 U.S. 912, 76 S.Ct. 702, 100 L.Ed. 1446. The trial court, however, refused to grant leave to withdraw the guilty plea and re-sentenced appellant for a further term of three years, suspended with probation. Appellant appeals from these two actions of the trial court arguing that: 1. Under the circumstances of this case the trial court abused its discretion in not allowing appellant to withdraw his plea; 2. Because appellant had already served his sentence of February 16, 1955, the sentencing of appellant the second time on the same offense constituted double jeopardy.

As to point one, the Government argues that appellant is seeking to withdraw his plea of guilty after sentencing and he should not be allowed to do so absent a showing of "manifest injustice" as set out in Rule 32(d) Fed.R.Crim.P.:

"A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea."

We are not in accord with the Government on this point. The showing of "manifest injustice" as required by Rule 32(d) is directed solely at the setting aside of the judgment of conviction. Once the procedural bar of the outstanding judgment has been properly removed, as here by a showing of a lack of counsel at sentencing, the decision of whether the prior guilty plea may be withdrawn is addressed to the sound discretion of the trial court. "Manifest injustice" plays no part in this decision. Friedman v. United States, 200 F.2d 690 (8 Cir. 1952) cert. denied 345 U.S. 926, 73 S.Ct. 784, 97 L.Ed. 1357; Delegal v. United States, 271 F.2d 279 (5 Cir. 1959), cert. denied 361 U.S. 962, 80 S.Ct. 591, 4 L. Ed.2d 544.

Taking a different approach to the same problem, the 1955 absence of counsel would seem to be a jurisdictional bar to the trial court's act of sentencing. Any acts by the court after its jurisdiction has been destroyed are considered void. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Boruff v. United States, 310 F.2d 918 (5 Cir. 1962); Thompson v. King, 107 F.2d 307 (8 Cir. 1939). Therefore, since this motion to set aside the plea came prior to any valid sentence it need not be supported by a showing of "manifest injustice."

Rejection of the Government's argument on this point, however, does not require a reversal of the District Court. As a general rule, a person who pleads guilty to a charge has no right to withdraw his plea. This plea is a conviction as conclusive as a jury verdict, and binds the one who enters it. Friedman v. United States, supra. It is true that under some circumstances leave to withdraw a plea of guilty may be granted. However, the granting of such leave is addressed to the sound discretion of the trial court and will not be reversed unless it is demonstrated that the trial court abused its discretion. Friedman v. United States, supra; Bartlett v. United States, 354 F.2d 745 (8 Cir. 1966). In determining what circumstances warrant the withdrawal of a guilty plea, "The issue for determination is whether the plea of guilty was voluntarily, advisedly, intentionally and understandingly entered, * * *." Friedman v. United States, supra, page 696 of 200 F.2d. As applied to this case we believe the record clearly demonstrates that appellant's plea of guilty represented his free and voluntary act made with an understanding of the nature of the offense and the consequences of his plea. As a result, he is not entitled to the relief he seeks.

Appellant contends that he was unaware of the consequences of his plea. The trial court did not think too highly of this contention, and we believe with good cause. At the time appellant entered his guilty plea he was represented by counsel, with whom he admittedly conferred. The learned trial judge obviously believed that appellant was fully aware of the charge and fully understood that he was pleading guilty thereto. The trial court's action is entitled to considerable weight. It cannot be said that appellant did not understand the nature of the crime charged, for it appears that he had been convicted and incarcerated for the very same type of crime some two years prior to his guilty plea herein. Furthermore, appellant was certainly no stranger to the bar of justice. A partial list of his activities prior to his plea include some fifty arrests for drunkenness, a conviction for car theft in 1952 and a Dyer Act conviction in 1953. With this kind of experience it is very doubtful that appellant was confused by courtroom procedure or was unaware of the consequences of a guilty plea. From the record before us, although lacking in formal education, appellant seems relatively bright and well informed. In this and in earlier appearances before the Court, appellant had no difficulty in understanding the questions put to him and responding intelligently thereto. Finally, the fact that over ten years have lapsed since appellant first entered his plea...