Shelton v. United States

Decision Date25 June 1957
Docket NumberNo. 16354.,16354.
Citation246 F.2d 571
PartiesJ. Paul SHELTON, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

J. Paul Shelton, in pro. per.

James W. Dorsey, U. S. Atty., Charles D. Read, Jr., Asst. U. S. Atty., Atlanta, Ga., for appellee.

Before HUTCHESON, Chief Judge, and RIVES, TUTTLE, JONES and BROWN, Circuit Judges, en banc.

TUTTLE, Circuit Judge.

Upon a motion for rehearing of the judgment of this Court1 entered on February 27, 1957, one judge dissenting, this Court determined to consider such motion en banc on the briefs and record with additional briefs requested and supplied by the parties.

The original opinion sufficiently sets out the facts except as to those matters which will be added here.

We conclude that the dissenting opinion correctly expressed the relevant definition of voluntariness2 which if applied to the facts of this case makes it necessary to affirm the decision of the trial court. All agree that for a plea of guilty to be binding on an accused it must be voluntarily made. Whether it was so must, of course, be viewed as of the time it was submitted to the court. As stated by the appellant himself in his supplemental brief "a plea of guilty is either voluntary or involuntary, either good or bad at the time it is entered, and does not retroactively change character thereafter."

The trial judge on the 28 U.S.C.A. Section 2255 hearing expressly concluded that the defendant "fully and voluntarily entered a plea of guilty and received a sentence of one year, upon the recommendation of himself and the assistant United States Attorney, concurred in by the judge." (emphasis added) and that he "expressed gratitude to the Court for the sentence."

It is Shelton's contention that this finding either cannot be subsequently made to support the action of the court in receiving the plea or if it can be made subsequently, then it is not here supported by the record of the hearing. In effect it is his contention that if a motivating cause which impelled him to enter the plea was a promise by the Government to seek the dismissal of an additional count in the pending indictment and the dismissal of an indictment pending in another district and to recommend a sentence of a year the plea could not, as a matter of law, be voluntary. As we read the opinion of the majority previously entered in this case, it seems to accept this thesis.

The requirement of Rule 11, Federal Rules of Criminal Procedure, 18 U.S.C.A., that a trial court "shall not accept the plea of guilty without first determining that the plea is made voluntarily * * *" is mandatory. However, there is nothing in the rule or in the protection it seeks to afford an accused that a certain form of finding must be entered in the record to support the court's discharge of this duty if later questioned. United States v. Swaggerty, 7 Cir., 218 F.2d 875. We think that where in a later inquiry the court finds that the plea was actually made voluntarily this later finding is entitled to the same weight and respect on appeal as is any other fact determination which it is the court's duty to make.

Here the trial record discloses ample facts and circumstances that would fully warrant a finding by the trial court at the hearing that the plea had been voluntarily made. The hearing record also contains facts which when considered with those introduced by Shelton from outside the trial record, warranted the finding here appealed from that the plea had been "voluntarily entered." These facts are set out in the majority opinion previously published, including the statement of Shelton's expression of thanks to the court immediately following the imposition of the one year sentence. In light of the full record, showing that the accused was not only willing but anxious to have his plea accepted by the court, the present claim of involuntariness after he has fully enjoyed the benefit of the dismissal of an additional count in the Atlanta indictment and the nolle prossing of the "more serious federal indictment" (as characterized by Shelton) in Miami — the reinstatement of which is now barred by statutes of limitations — and the imposition of the sentence requested by him in the principal case, cannot deprive the plea thus given of its character of voluntariness.

Moreover, in considering the bona fides of this belated claim it is relevant to note that a month after the entry of the plea now asserted to have been involuntary, Shelton wrote to the assistant district attorney who had handled the prosecution a letter relative to the lifting of the detainers in Atlanta and Miami to which the Government had agreed; he concluded: "Thanking you for your efforts in my behalf, and trusting that the entire transaction can be wound up soon, I am respectfully yours, J. Paul Shelton." It was only after the entire "transaction" was "wound up" thereafter and Shelton had reaped the full benefit of his agreement that he claimed for the first time that he had been coerced or overreached.

There is not a line of evidence to sustain a finding that he was in any way misled or imposed on. There was evidence that as a result of his plea he expected to receive favorable treatment. It was for the trial court to decide whether this expectation was so induced as to make the plea of guilty involuntary as a matter of law. It seems to us that on this record it would be almost a contradiction in terms for the trial court to have held that it was. In any event the court found to the contrary. Such finding was certainly not clearly erroneous.

The motion for rehearing is granted; the previous judgment of this Court is set aside and the judgment of the trial court is affirmed.

CAMERON, Circuit Judge not participating.

HUTCHESON, Chief Judge (concurring specially).

I agree with the affirmance of the judgment and with most of what is said in the opinion of the majority affirming it, and ordinarily would content myself with saying so. In my opinion, however, the sheer audacity, not to say effrontery of movant's attempt, under the undisputed facts in this case, while holding on to benefits obtained by him in pleading guilty, to repudiate in the name of due process his acts in doing so and the support accorded his contentions and views in the opinions of the dissenting minority constitute a massive assault upon the validity of countless thousands of sentences entered upon pleas of guilty taken as this one was and the integrity of the federal judicial system, indeed upon the judicial process itelf.

Convinced as I am that the contentions of the appellant and the conclusions of the dissenting judges with respect to them are based on demonstrably erroneous assumptions both of fact and of law, I feel compelled for myself and in my own way to do what I can, by stating as briefly as may be what I regard as the controlling facts in the case at bar and, with equal brevity, the controlling principles of law, to conclusively demonstrate that, as applied to this case, the views of the dissenters, in support of their opinion that the judgment appealed from should be reversed, are without sound basis.

As stated in some of the opinions of my colleagues and more fully disclosed by the record, appellant, who has many times appeared in this court,1 having on October 20, 1953, been arraigned and advised of his right to assistance of counsel, waived counsel and, having pleaded guilty to the first count of the indictment on which he was convicted below, was given a one year sentence.

Nearly three years later, feeling, as he expressed it in his testimony, some resentment toward the Assistant District Attorney, Mr. Tysinger (Rec. 44), although he felt crummy about welching on his agreement with Mr. Tysinger, because he felt that Tysinger had welched on his agreement on a certain nine months jail time (See the opinion of this court in Shelton v. United States, 234 F.2d 132), filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255. He further stated (R. 45) "I still confess I feel somewhat badly about making a motion like this".

After a lengthy hearing (R. 148-150), the District Court stating, "It appearing that the defendant in this case was duly arraigned, voluntarily waived counsel, freely and voluntarily entered a plea of guilty and received a sentence of one year, upon the recommendation of himself and the Assistant United States Attorney, concurred in by the Judge, expressed gratitude to the Court for the sentence, served almost the entire year before making any complaint, no sufficient grounds appear to justify the vacation of his sentence." (R. 150)

Appellant had himself handled the trial of this case (the same case, this indictment superseding indictment No. 19934; see R. 16) in the District Court for two days in July, 1953 (resulting in mistrial), assisted part of the time by amicus curiae appointed by the court (R. 22, 23, 24) and had of course been observed by the same District Judge who sentenced him on Oct. 20, 1953. In fact the District Court was impressed by the way he handled his trial. Appellant had had a good deal of personal experience in courts (R. 22) and apparently knew well how to conduct himself there.

In the position of having received the full benefit of his plea through the dismissal of the other indictments against him and the limiting of the sentence in this case to one year, a plea which, upon the undisputed evidence, was and was found to have been willingly and understandingly made, appellant is here urging upon this court to substitute itself for the district judge and, completely ignoring the actions and findings of the district judge to determine for itself what is just and right in the premises. That the judges of this court cannot do this under the circumstances of this case is, I think, completely settled by the cases.

In Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009, the Supreme Court laid...

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