Pilkington v. United States

• Court: U.S. Court of Appeals — Fourth Circuit
• Writing for the Court: SOBELOFF, , SOPER, Circuit , and WINTER
• Citation: Pilkington v. United States, 315 F.2d 204 (4th Cir. 1963)
• Decision Date: 02 March 1963
• Docket Number: No. 8706.,8706.
• Parties: Vincent L. PILKINGTON, Appellant, v. UNITED STATES of America, Appellee.

315 F.2d 204 (1963)

Vincent L. PILKINGTON, Appellant, v. UNITED STATES of America, Appellee.

No. 8706.

United States Court of Appeals Fourth Circuit.

Argued October 9, 1962.

Decided March 2, 1963.

Lewis T. Booker, Richmond, Va. (court-assigned counsel), for appellant.

James A. Oast, Jr., Asst. U. S. Atty. (C. V. Spratley, Jr., U.S. Atty., on brief), for appellee.

Before SOBELOFF, Chief Judge, SOPER, Circuit Judge, and WINTER, District Judge.

SOBELOFF, Chief Judge.

The question presented by this appeal concerns the availability of post-conviction relief when the District Court, in the course of criminal proceedings, after advising a youthful criminal defendant that he is subject to a maximum of five years imprisonment for the particular crime charged, accepts a plea of guilty without further explanation of the possible sentence and proceeds to impose sentence under the Federal Youth Corrections Act, 18 U.S.C.A. § 5005 et seq., under which the defendant is subject to a potential maximum sentence of six years confinement.¹

The appeal is by Vincent L. Pilkington, a federal prisoner, from an order of the District Court denying without a hearing his petition for post-conviction relief. (The petitioner stated that he was proceeding under 28 U.S.C.A. § 2255.) He alleged that in July, 1958, he was charged with stealing $800.00 from a United States Navy Base Exchange; that upon being taken before the District Court he was advised by the Judge that the maximum penalty for the offense was five years imprisonment; that he subsequently pleaded guilty in reliance upon this representation; that the court then sentenced him under the Federal Youth Corrections Act to a term of from sixty days to six years confinement; and that prior to the imposition of sentence, there had been no mention to him of the provisions of the Youth Corrections Act or a possible six-year maximum sentence.

The files and records relating to Pilkington's 1958 criminal trial contain an amplification of the facts, although the essential allegation of his petition is not contradicted. Pilkington, then 20 years of age, was arrested by an agent of the Federal Bureau of Investigation on July 21, 1958, and taken before a United States Commissioner that same day. On the following day, July 22, he was brought before the District Court. The transcript of the July 22 proceedings reveals that the court advised Pilkington as follows:

"THE COURT: In order that I may explain to you more fully what the charges apparently are as related by the Assistant United States Attorney, I shall summarize the specific sections of the law that he has just referred to. Under Section 661 of Title 18, United States Code, it is provided that, `Whoever, within the special maritime and territorial jurisdiction of the United States, takes and carries away, with intent to steal or purloin, any personal property of another shall be punished as follows:

`If the property taken is of a value exceeding $100, or is taken from the person of another,\' it shall be punished `by a fine of not more than $5,000, or imprisonment for not more than five years, or both * * *.\'"

The court then advised the defendant of his right to indictment by a grand jury and his right to counsel. Upon being informed by the defendant that counsel was desired and that the defendant lacked funds to employ his own, the court agreed to appoint a lawyer to represent him. At the end of the hearing, Pilkington indicated his concern over the possible length of the sentence if he was convicted, and asked the court: "What if this is your first offense as an adult?" The Judge replied that he could not tell Pilkington what the sentence would be before hearing the evidence and reading the probation officer's report.

Pilkington was next brought before the court on August 22, 1958, at which time he was represented by the court-appointed attorney. After indictment by a grand jury had been waived, a criminal information filed, and arraignment waived, the defendant entered a plea of guilty. The Judge inquired, "Do you enter that plea of guilty voluntarily on your part and with no promises or assurances as to what disposition I will make of the case?" However, before accepting the plea, the Judge added nothing to what he had said a month earlier with respect to the possible sentence. An agent of the Federal Bureau of Investigation then testified for the purpose of establishing the prima facie existence of the crime, and Pilkington testified as to his prior difficulties with the law. Pilkington was then sentenced to be committed to the custody of the Attorney General pursuant to the provisions of the Federal Youth Corrections Act. After pronouncing sentence the Judge explained that it was indeterminate in duration but that the defendant "must be discharged on or before six years from this date." As far as the transcript discloses, this was the only mention of a possible six-year sentence, and the first mention of any particular length of term after the Judge had advised Pilkington a month earlier that five years imprisonment was the maximum possible sentence.

Following his commitment to the custody of the Attorney General, the defendant was confined in an institution for young offenders and was released conditionally at sometime not specified in the record. After remaining at large for eight months, he was apprehended as a parole violator and returned to custody, and is now in the Federal Penitentiary at Lewisburg, Pennsylvania. In the appellant's brief it is asserted that as of the date of its filing, August 24, 1962, he had been in confinement under sentence almost exactly four years, but in this he was in error because apparently he included the eight months he had been under conditional release.

We think that the above-recited allegations, together with the facts appearing from the District Court record, were sufficient to require a hearing on Pilkington's petition with findings of fact and conclusions of law by the District Court. Enough is shown to create a doubt concerning the voluntariness of the guilty plea. This is, as we have pointed out on several recent occasions, an issue raising constitutional questions that can be considered in a proceeding under 28 U.S. C.A. § 2255. Aiken v. United States, 282 F.2d 215 (4th Cir., 1960); Reed v. United States, 291 F.2d 856 (4th Cir., 1960); Aiken v. United States, 296 F.2d 604 (4th Cir., 1961). See also, Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830 (1941); Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302 (1942); Behrens v. Hironimus, 166 F.2d 245 (4th Cir., 1948); Alexander v. United States, 290 F.2d 252 (5th Cir.), cert. denied, 368 U.S. 891, 82 S.Ct. 144, 7 L.Ed. 2d 89 (1961); United States v. Salerno, 290 F.2d 105 (2d Cir., 1961).

More particularly, where, in petitions under 28 U.S.C.A. § 2255, it has been alleged that pleas of guilty were entered because the defendant was misled by statements of the presiding judge or prosecuting officials, or even under some circumstances of his own attorney, with regard to the nature of the charge or the possible penalty involved, hearings on such allegations have been ordered. United States v. Davis, 212 F.2d 264 (7th Cir., 1954); Kennedy v. United States, 249 F.2d 257 (5th Cir., 1957), cert. denied, 359 U.S. 994, 79 S.Ct. 1126, 3 L.Ed.2d 982 (1959); Heideman v. United States, 281 F.2d 805 (8th Cir., 1960); Aiken v. United States, 282 F.2d 215 (4th Cir., 1960). And in Meredith v. United States, 208 F.2d 680, 682 (4th Cir., 1953), affirming the denial of a motion under 28 U.S.C.A. § 2255, where the voluntariness of the guilty plea was attacked for alleged misleading advice concerning the possible sentence, this court underscored the fact that "there is no contention that the judge or the United States Attorney made any promises to him or misled him in any way." In the present case, on the other hand, Pilkington specifically alleges that he was misled by the Judge's statement that the maximum penalty could not exceed five years, whereas he is actually subject to six years under the sentence imposed.

In its brief and argument the Government strongly relied on the case of Cunningham v. United States, 256 F.2d 467 (5th Cir., 1958), but we think it affords little support to the Government's position. Its value as a precedent in this case has, it seems to us, been destroyed by the more recent unanimous decision of the Supreme Court in Jones v. Cunningham, 83 S.Ct. 373.

In the Fifth Circuit case the defendant was convicted of stealing property valued at less than $100.00, an offense for which the maximum penalty specified in the statute is imprisonment for one year. The defendant, however, was sentenced under the Youth Corrections Act which provides for a possible maximum penalty up to six years. Two issues were discussed in the Fifth Circuit's majority opinion. The first was whether the Youth Corrections Act applied to misdemeanors; the second was whether, if the Act applied, it deprived a youthful defendant of equal protection under the Fifth Amendment and violated the prohibition against cruel and unusual punishment contained in the Eighth Amendment, in permitting a sentence that could run as long as six years, for an offense the statutory maximum limit of which is one year. Both questions were answered adversely to the appellant. In the case now before us the constitutionality of the Youth Corrections Act is not challenged, only the validity of the sentence insofar as it may exceed what the court told the defendant, on entry of the plea, was the maximum sentence possible for the offense.

The Fifth Circuit's majority opinion did not, in our view, adequately answer the defendant's other point, which is of interest here, namely, that when he pleaded guilty nothing was said to him about the Youth Corrections Act, and only later did the judge mention for the first time the Youth Corrections Act and the range...