Smith v. United States

• Decision Date: 10 October 1963
• Docket Number: No. 17822.,17822.
• Citation: 324 F.2d 436,116 US App. DC 404
• Parties: John Mack SMITH, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

116 US App. DC 404, 324 F.2d 436 (1963)

John Mack SMITH, Appellant, v. UNITED STATES of America, Appellee.

No. 17822.

United States Court of Appeals District of Columbia Circuit.

Argued July 26, 1963.

Decided October 10, 1963.

Petitions for Rehearing and for Rehearing Denied December 9, 1963.

Mr. Ewing Laporte, Washington, D. C. (appointed by the District Court), for appellant.

Mr. Robert D. Devlin, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and Harold H. Titus, Jr., Asst. U. S. Attys., were on the brief, for appellee.

Before WILBUR K. MILLER, WASHINGTON and DANAHER, Circuit Judges.

Petitions for Rehearing En Banc and for Rehearing by the Division Denied December 9, 1963.

WILBUR K. MILLER, Circuit Judge.

Appellant was indicted on January 12, 1959, for violations of the narcotics laws. On January 16, 1959, with retained counsel present, he pleaded not guilty. Thereafter, his retained counsel who had advised him to plead guilty withdrew his appearance, and another able member of our bar was appointed by the court to succeed him. On March 4, 1959, with appointed counsel present, appellant withdrew his plea of not guilty and pleaded guilty to two of the six counts of the indictment, which charged violations of 26 U.S.C. § 4705(a). He stated he understood the nature of the charges in the two counts, and that he had been advised of the possible sentence he might receive on a plea of guilty thereto.¹ No promises had been made to him to induce a plea of guilty, he said, either by his attorney or the United States Attorney. He added that he was completely satisfied with the services of his court-appointed counsel.

After the usual investigative procedure, he was sentenced under 26 U.S.C. § 7237(b) to a single term of eight years which covered both counts to which he pleaded guilty.² The remaining four counts were dismissed.

A few weeks thereafter, on June 10, 1959, represented by retained counsel, Smith filed a motion for reduction of sentence, saying

"The facts of the case indicated that defendant was not the prime mover in subject action but was employed by another and then prevailed upon to dispense the narcotics for which he stands convicted."

This motion said nothing about ineffective assistance of court-appointed counsel in connection with the plea of guilty. After a hearing, the motion was denied by the late Judge James W. Morris, who had pronounced sentence.

On October 23, 1959, the appellant filed a motion to vacate the judgment under 28 U.S.C. § 2255, prepared by a "jail house lawyer."³ He alleged inter alia that he did not plead guilty intelligently but was coerced into doing so by appointed counsel who did not give him effective assistance. These allegations were, of course, contrary to his own statements made at the time of pleading guilty, to which we have referred. The objurgated appointed counsel controverted the charges made against him, and Judge Morris denied the motion.

A second motion under 28 U.S.C. § 2255, also prepared by a fellow inmate, was filed April 6, 1960. As it alleged substantially the same grounds alleged before, Judge Morris denied the second motion.

On June 30, 1961, still with prison counsel, appellant filed a motion denominated "Motion for withdrawal of guilty plea under Rule 32(d) F.R.C.P. and to prosecute the appeal under Title 28, Section 2255 and to proceed under Title 28, Section 1915 U.S.C." The text of the motion asked "leave to withdraw the plea of guilty, under Rule 32(d), Fed. Rules Cr.Proc. and grant a new trial, to correct manifest injustice."⁴ In support of the motion, he again criticized the appointed counsel who had acted for him at the time the plea of guilty was entered, apparently because counsel had advised him to plead guilty. Appellant pointed out that appointed counsel's experience in criminal matters had been limited. On August 16, 1961, appellant's present counsel was appointed to represent him.

Later a hearing was had before Judge Walsh on the motion of June 30, at which appellant declined to take the stand, relying on the prior proceedings. The motion was denied and Smith appealed. We affirmed.⁵ After summarizing the several proceedings much in the manner they are described above, we concluded our opinion thus:

"This case presents another example of able counsel being vilified and maligned after rendering as effective service as could be rendered in the circumstances of the case. We have heretofore commented on this situation as follows:

"`The charge of ineffective assistance is so often leveled at appointed counsel by convicted defendants that many lawyers dislike to accept assignments in behalf of indigents. Such a charge should not be sustained unless it very clearly appears to be well grounded. Here, the charge of ineffective assistance bordered on the frivolous.\' Gray v. United States, 112 U.S.App.D.C. 86, 299 F.2d 467, 468 (1962).

"In the present case also the charge of ineffective assistance of counsel `bordered on the frivolous.\'"

On October 16, 1962, about five months after our opinion was handed down, appellant filed a fourth motion under 28 U.S.C. § 2255 to vacate the judgment, and under Criminal Rule 32(d) to withdraw his plea of guilty. He alleged his guilty plea was not intelligently and voluntarily made with full understanding of the charge and its consequences, in that he was not advised and did not know he would not be eligible for probation or parole.⁶

This motion was heard and denied October 26, 1962, by Judge McGuire who also denied, as without merit and frivolous, Smith's motion for leave to prosecute an appeal without prepayment of costs. But on March 22, 1963, a division of this court granted appellant's petition for such leave. For that reason, the case is now before us on appeal from Judge McGuire's denial of the fourth motion to vacate the judgment under 28 U.S.C. § 2255 and to withdraw the plea of guilty.

At the time he pleaded guilty, Smith stated that he did so voluntarily with understanding of the nature of the charge and its consequences. In ruling on the motion of October 23, 1959, the District Court rejected his contention that he had not pleaded guilty intelligently but was coerced into doing so by appointed counsel. Consequently, the motion of October 16, 1962, which is now before us, contains nothing new except the addition of the words:

"* * * in that neither the Court, nor its clerk, nor court-appointed counsel, nor anyone else ever advised him, and he did not know, that he would not be eligible for probation or parole if a plea of guilty was entered."

A Rule⁷ forbids a judge to accept a plea of guilty without first determining that it is "made voluntarily with understanding of the nature of the charge." (Emphasis added.) Obviously this is to assure that the accused be not misled as to the nature of the offense with which he stands charged. There is no requirement that the accused be told what sentence will be imposed. The appellant apparently recognizes this, for in his brief he attacks only the appointed counsel who represented him when he pleaded guilty, saying:

"* * * Appellant was affirmatively mislead sic by court-assigned counsel in pleading guilty to narcotics offenses by the representation that he could receive probation and that counsel was trying to get it for him, and that he was negatively mislead sic by the omission of counsel to inform him that in no event could he be paroled ever. * * *"

If the allegation that Smith was misled by his appointed counsel is to be cognizable under 28 U.S.C. § 2255 as a ground for vacating the judgment, it must amount to an allegation of ineffective assistance of counsel of such a kind as to shock the conscience of the court and make the proceedings a farce and a mockery of justice.⁸ We think it falls far short of doing so.

We turn to consider the present motion to withdraw the plea of guilty under the governing Criminal Rule 32 (d).⁹ It should be noted, first, that a motion after sentence to withdraw a plea of guilty is addressed to the discretion of the district judge, and that his action thereon will be disturbed on appeal only for abuse of discretion. This is so well established that citation of supporting authority is unnecessary.

Essentially, Smith's argument is that the non-availability of probation and parole is a consequence of his plea of guilty which was not explained to him when he entered the plea; that therefore the court accepted the plea of guilty without first determining that he, Smith, understood all its consequences,¹⁰ and that withdrawal of the plea should be permitted to correct manifest injustice.

The rule is that manifest injustice does not result from a plea of guilty following erroneous advice of counsel as to the penalty which could be imposed. Georges v. United States, 262 F.2d 426, 430 (5th Cir. 1959); United States v. Parrino, 212 F.2d 919 (2nd Cir.), cert. denied 348 U.S. 840, 75 S.Ct. 46, 99 L.Ed. 663 (1954).

Just what the claimed manifest injustice is Smith does not say. He does not assert he would not have pleaded guilty had he been told he could not be granted probation or parole. He entered the plea knowing he could be sentenced to imprisonment for 40 years, without any promise of leniency. Such a sentence, even if parole had been available, would have resulted in confinement for a longer period than the eight unparolable years he received. Yet he says manifest injustice resulted because he was not told probation and parole were not allowable.

The appellant has never said in this or any previous motion that he was not guilty of the charge to which he pleaded. To the contrary, when he moved for a reduction of sentence on June 10, 1959, he did not deny but rather admitted his guilt by saying:

"The facts of the case indicated that defendant was not the prime mover in subject action but was employed by another and then prevailed upon to dispense the narcotics for which

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