Paige v. United States, 14860.
| Decision Date | 10 June 1971 |
| Docket Number | No. 14860.,14860. |
| Citation | 443 F.2d 781 |
| Parties | Albert Allen PAIGE, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Ralph S. Spritzer, Philadelphia, Pa. (Court-assigned), for appellant.
David H. Hopkins, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., on brief), for appellee.
Before BOREMAN, CRAVEN and RUSSELL, Circuit Judges.
Albert Allen Paige appeals from an order of the district court denying his motion under 28 U.S.C. § 2255 to vacate and set aside two judgments of conviction. We vacate the order and remand for further proceedings.
Paige was tried on January 8, 1968, before the district court without a jury and he was found guilty of a violation of the federal narcotics laws. Following this conviction, the court did not specifically advise Paige of his right to appeal, as required by Rule 32(a) (2), Fed.R. Crim.P.
On February 19, 1968, Paige appeared before the same court and entered a plea of guilty to one count of another indictment charging him with another violation of federal narcotics laws. Prior to entering the plea Paige was not advised by the court that under 26 U.S.C. § 7237 his conviction upon the guilty plea would be treated as a second offense, which would increase his potential sentence and would make him ineligible for parole. In fact, the court indicated that it would not treat Paige's conviction on the guilty plea as a second offense. Subsequently, just before the time set for sentencing, the Government filed an information directing the court's attention to the fact that the charge to which Paige had pleaded guilty on February 19 was a second offense. At the conclusion of his sentencing proceeding Paige was told that the conviction upon his guilty plea would be treated as a second offense.
In challenging his first conviction, Paige claims that he was denied his right to appeal by the trial court's failure to advise him of this right, as required by Rule 32(a) (2), Fed.R.Crim. P., which, in part, is as follows:
"After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of his right to appeal and of the right of the person who is unable to pay the cost of an appeal to apply for leave to appeal in forma pauperis. * * *" (Emphasis added.)
The Government concedes that the court did not technically comply with Rule 32(a) (2), but asserts that Paige had notice of his right to appeal because Paige's counsel during the sentencing proceeding told the court that one of Paige's state court convictions would be appealed, and the sentencing court in Paige's presence said, "Of course, he's got a right to appeal." In context, the court obviously referred to the defendant's right to appeal the state court conviction. The Government argues that, since Paige was thus apprised of his right to appeal, remanding for resentencing and reinstatement of his right to appeal would, in effect, be placing form over substance. We cannot agree.
Rule 32(a) (2) is specific in its command. It is obviously designed to insure that a convicted defendant be advised precisely of his right to appeal and to avoid a situation where the Government claims a defendant is otherwise aware of his right to appeal while the defendant denies such knowledge. The three circuits which have considered the failure of a sentencing court to advise a convicted defendant of his right to appeal as required by Rule 32(a) (2) have held that such failure requires a remand for resentencing and reinstatement of the right to appeal. United States v. Benthien, 434 F.2d 1031 (1 Cir. 1970); Nance v. United States, 422 F.2d 590 (7 Cir. 1970); United States v. Smith, 387 F.2d 268 (6 Cir. 1967). We find ourselves in agreement.
Paige attacks the validity of his second conviction, contending that his guilty plea was involuntary due to the district court's failure to advise him fully of the consequences of his guilty plea as required by Rule 11, Fed.R.Crim.P. It is clear that technical...
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