Ristagno v. U.S., 3:97-CV-0813.
| Decision Date | 24 March 1998 |
| Docket Number | No. 3:97-CV-0813.,No. CR-90-308-1.,3:97-CV-0813.,CR-90-308-1. |
| Citation | 32 F.Supp.2d 184 |
| Parties | Samuel RISTAGNO, Sr., Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Middle District of Pennsylvania |
Samuel Ristagno, Loretto, PA, pro se.
John C. Gurganas, AUSA, for defendant.
Pending before the Court is a motion for habeas corpus relief filed by Petitioner pursuant to 28 U.S.C. § 2255 and a "Memorandum of Law" in support of his motion to vacate his sentence. (Doc. 71). The Government filed a response to the Petitioner's petition on August 13, 1997. (Doc. 79). Ristagno filed a traverse to the governments response on September 2, 1997. (Doc. 80). For the reasons set forth infra, we shall grant the Petitioner's habeas corpus motion to the extent that we vacate the sentence.1 However, the Petitioner's same sentence will be reimposed and the Petitioner's time to file an appeal will begin on the date of this order. The Petitioner's petition will be denied with respect to his ineffectiveness claim, Sixth Amendment Confrontation Clause claim, and his contention that the sentencing court imposed an improper sentence.
On October 24, 1990, the Petitioner was arrested following a drug investigation conducted by the Federal Bureau of Investigation, the Pennsylvania Attorney General's Office, the Pennsylvania State Police, and the Wilkes-Barre Drug Task Force. (Doc. 79). As a result of a lengthy investigation conducted by the above named police agencies, Samuel Ristagno, Sr. was arrested on October 24, 1990 and subsequently indicted on November 20, 1990. The Petitioner was charged with one count of conspiracy to distribute cocaine and fourteen substantive counts of cocaine distribution and*or possession with intent to distribute cocaine. Id. at p. 8.
On February 6, 1991, the United States filed a motion for an arrest warrant and revocation of the Petitioner's pre-trial release based upon an investigation of the Petitioners involvement with the distribution of drugs subsequent to his arrest. Id. at pp. 8-9. A bail revocation hearing was held on February 7, 1991 at which time this Court concluded that Ristagno had engaged in criminal conduct in violation of the terms of his bail. (Doc. 77, p. 76).
On the day that the Petitioner was scheduled to go to trial, he indicated his desire to plead guilty to the charges listed in the indictment. A hearing was held in which the Petitioner changed his plea to guilty and the Court ordered the United States Probation Office to prepare a presentence investigation report in preparation for sentencing. (Doc. 79, p. 10). The presentence investigation report was prepared and Ristagno objected to the conclusions made by the United States Probation Office.
This Court conducted a sentencing hearing on October 9, 1991 at which time Ristagno placed his objections on the record. We determined that the conclusions reached by the United States Probation Office were valid and overruled the Petitioner's objections. The Petitioner was sentenced to a 235 month term of incarceration which is to be followed by a four year term of supervised release. The Petitioner did not appeal the imposition of this sentence. Id. at p. 11. At sentencing, this Court failed to inform Ristagno of his right to appeal.
At the time of the Petitioner's sentencing, Federal Rule of Criminal Procedure 32(a)(2) read as follows:
(2) Notification of Right to Appeal. After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of the defendant's right to appeal, including any right to appeal the sentence, and of the right of a person who is unable to pay the cost of an appeal to apply for leave to appeal in forma pauperis. There shall be no duty on the court to advise the defendant of any right of appeal after sentence is imposed following a plea of guilty or nolo contendere, except that the court shall advise the defendant of any right to appeal the sentence. If the defendant so requests, the clerk of the court shall prepare and file forthwith a notice of appeal on behalf of the defendant.
"The circuit courts are divided on the question of what standard is used to review a sentencing court's failure to advise a defendant of his right to appeal." Thompson v. United States, 111 F.3d 109, 110 (11th Cir. 1997). A majority of circuit courts have held that the failure to advise a person of his right to appeal constitutes error per se. Id. However, two circuits have held that a petitioner must show some type of harm from the court's failure to notify a Defendant of his right to appeal. Id.; Tress v. United States, 87 F.3d 188 (7th Cir.1996); United States v. Drummond, 903 F.2d 1171 (8th Cir.1990), cert. denied, 498 U.S. 1049, 111 S.Ct. 759, 112 L.Ed.2d 779 (1991); see also Biro v. United States, 24 F.3d 1140 (9th Cir.1994). Our circuit court has addressed this issue on a number of different occasions and has adopted a harmless error standard under certain circumstances. Hoskins v. United States, 462 F.2d 271 (3d Cir.1972).
The Third Circuit has held that where a person is given notice of his right to appeal "and it can be inferred beyond a reasonable doubt that the defendant has full knowledge of his appeal rights, mere technical noncompliance with the provisions of 32(a)(2) should not require a resentencing absent a clear showing of prejudice." Id. at p. 274. The Third Circuit applied this prejudicial standard in Hoskins after it determined that a notice of the right to appeal was placed on the record in a formal judicial proceeding prior to sentencing. Although seven weeks had elapsed from the conclusion of Hoskins' trial and the sentencing hearing, the Third Circuit held that the defendant was fully informed of his appeal rights at the conclusion of his trial. Id. The circuit court reasoned that in circumstances where the interval of time between the proceeding in which the defendant was informed of his right to appeal and the sentencing hearing "is of a brief enough duration to ensure beyond a reasonable doubt that the notification will be fresh in the mind of the defendant at the time of the sentencing, the intent of the Rule should be held to have been complied with." Id.
However, the Third Circuit reached another conclusion in an earlier case where there was no notification on the record informing the defendant as to his right to appeal. United States v. Deans, 436 F.2d 596 (3d Cir.1971). In Deans, the district court failed to advise the defendant of his right to appeal his sentence at any formal judicial proceeding.(emphasis added). The government attempted to supplement the record with an affidavit by the defendant's trial counsel alleging that the defendant was informed of his right to appeal by the court and his attorney. The Third Circuit did not accept "trial counsel's four year-old recollection" and failed to find any indication on the record that the defendant was informed as to his right to appeal. Id. at p. 599. Our analysis of these two cases leads us to conclude that the standard set forth in Hoskins, only applies to a case where there exists evidence on the record that a defendant was informed of his right to appeal even if it was prior to sentencing. The Third Circuit has taken a different approach where there is no evidence on record that a defendant was informed of his right to appeal. In Deans, the Third Circuit held that where there was no evidence on the record which would indicate that the court informed a defendant of his right to appeal, Federal Rule of Criminal Procedure 32(a)(2) is not satisfied.
Based upon our review of the records pertaining to the Petitioner's case, we conclude that this court did not inform Ristagno of his right to appeal at the guilty plea or at the sentencing hearing. Under these circumstances, this court is constrained by the Third Circuit's analysis in Deans and must afford the Petitioner appropriate relief. Accordingly, we will vacate the Petitioner's sentence and reimpose the same sentence. It is our opinion that "conducting a formal sentencing hearing would be an empty exercise." Gaeta v. United States, 921 F.Supp. 864, 866 (D.Mass.1996). The record (including the PSI) fully establishes the reasonableness and the propriety of the sentence. It is at the low end of the proper range, and nothing has been brought to this Court's attention to change or alter these facts.
The Petitioner contends that his counsel was ineffective in that his attorney misled him into accepting a plea agreement. Specifically, Ristagno alleges that his attorney told him that if he proceeded to trial, he would receive a forty year sentence. Ristagno claims that he was advised to accept the plea agreement which would insure the minimum sentence by his acceptance of responsibility. The Petitioner also claims that his counsel was ineffective for failing to inform him that he had a right to appeal his sentence.2 (Doc. 71, p. 4).
The Government argues that the Petitioner has failed to demonstrate that his counsel was ineffective. (Doc. 79, p. 17).
A defendant has a Sixth Amendment right to "reasonably effective assistance" of counsel. The United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674, reh'g denied, 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984), held that the test for judging any claim of ineffectiveness of counsel is whether the counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. The Court developed a two-prong test requiring the defendant to show: (1) counsel's performance was deficient and, (2) the deficient performance prejudiced the defense. Prejudice has been defined as a ...
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