U.S. v. Blackner, 82-1292

• Decision Date: 14 November 1983
• Docket Number: No. 82-1292,82-1292
• Citation: 721 F.2d 703
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ivar Q. BLACKNER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 703

721 F.2d 703

UNITED STATES of America, Plaintiff-Appellee, v. Ivar Q. BLACKNER, Defendant-Appellant.

No. 82-1292.

United States Court of Appeals, Tenth Circuit.

Nov. 14, 1983.

Edward T. Wells, Salt Lake City, Utah (Lowell V. Summerhays and Victor M. Perri of Summerhays, Runyan & Perri, Salt Lake City, Utah, were also on the brief), for defendant-appellant.

Tena Campbell, Asst. U.S. Atty., Salt Lake City, Utah (Brent D. Ward, U.S. Atty., Salt Lake City, Utah, was also on the brief), for plaintiff-appellee.

Before HOLLOWAY, DOYLE and SEYMOUR, Circuit Judges.

HOLLOWAY, Circuit Judge.

Defendant Ivar Q. Blackner timely appeals the order denying his motion to withdraw his guilty pleas and his motion to withdraw his waiver of jury trial, and the judgment and sentence entered on the pleas. Blackner contends, inter alia, that his motion to withdraw his guilty pleas should have been granted because (1) the prosecution failed to inform the district court of the existence and terms of the plea bargain agreement he had, and (2) Blackner was not informed of the maximum sentence provided by law for pleading guilty to the crimes charged. We agree with his first proposition and must vacate the judgment and order, and remand.

I

On December 16, 1981, Blackner was indicted on two counts of distributing cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. Sec. 841(a)(1). Blackner waived his right to a jury trial on February 11, 1982. On February 16, the day on which his trial was to begin, Blackner's attorney announced that Blackner wished to change his pleas and plead guilty to both counts. Blackner and his attorney signed a "Statement by Defendant in Advance of Plea of Guilty," I R. 32-34, stating that there was no plea agreement and no agreements or representations had been made about his sentence. The court advised defendant in detail of his rights such as his right to trial by jury, representation by counsel, the presumption of innocence and the like. The court inquired whether there was an arrangement to propose a dismissal of one count and was advised by the Government that there was no such agreement and that the plea would be "to the charges in the indictment." II R. 2-3. The court accepted the pleas, finding that "the pleas were entered knowingly and understandingly." II R. 20; I R. 31.

On February 22, 1982, Blackner filed a motion to withdraw his guilty pleas and a motion to withdraw his waiver of jury trial. I R. 36. After a hearing the district judge denied the motions. On March 31 Blackner was sentenced on count I to imprisonment for a term of two years and to a special parole term of three years. Imposition of sentence on count II was suspended and the defendant was placed on probation for a period of two years, such period of probation to be consecutive to the sentence imposed on count I, including the parole and special parole term of supervision. I R. 59. This appeal followed.

II

Blackner contends that his motion to withdraw his pleas should be granted because the prosecution failed to inform the court of a plea bargain agreement as required by Rule 11, Federal Rules of Criminal Procedure. Defendant argues that there was an agreement that the United States Attorney would not seek the maximum sentence at the time of sentencing or take any position with respect to sentencing, if defendant did plead guilty. Appellant's Brief at 4.

The Government argues, inter alia, that this issue was not presented in the district court by defendant's written motion to withdraw his guilty pleas or at the hearing on the motion, and should therefore not be considered on appeal. Brief of Plaintiff-Appellee at 7-8. We must reject this contention. While this specific claim was not asserted in the motion, the facts about this issue were clearly developed at the hearing on the motion to withdraw the guilty pleas, and at the other hearings shortly before and after that hearing. In fact, defendant's attorney brought out the fact that even if the agreement by the Government not to take any position on sentencing if defendant pled guilty to both counts was not "much of a deal," it nevertheless can be construed as an agreement under the criminal law. III R. 30-31. In any event, the claim that the agreement was not fully disclosed to the court raises a serious question of violation of mandatory provisions of the criminal procedural rules and must be considered as a plain error or defect affecting substantial rights. Fed.R.Crim.P. 52(b). Hence we turn to the merits of the issue.

For a resolution of this issue the record is crucial. On February 16, the case came on for trial and defendant then moved for permission to change his pleas to guilty. II R. 2. At that time the trial judge made a thorough inquiry regarding the voluntariness of Blackner's change of pleas to guilty as required by Rule 11. In connection with the specific requirement concerning disclosure of the existence of any plea bargain agreement, the trial judge also questioned Blackner and the following colloquy occurred:

THE COURT: Now, if there are those individuals in law enforcement who feel that the circumstances in your case are such that they would make a recommendation or make a--give information to the pre-sentence agent, the probation agent--I don't know if this is what you have in mind. But, whoever it is, for whatever purpose, that will be part of the report and the circumstances there will be set out.

But, at present, you have no right or expectation to believe that what is represented there will be in any particular form, unless it has been so represented to you at this time--in which event, we should hear what it is. Have I made myself clear?

THE DEFENDANT: Yes, Sir.

THE COURT: So, at this point, you have no assurances. You have nothing that you could rely upon that would bear upon, presently, any kind of understanding or commitment or agreement as to what the sentence may be. Do you understand that?

THE DEFENDANT: Yes, Sir.

THE COURT: In other words, you are fully subject to whatever sentence the Court believes is proper, after considering a pre-sentence report arrived at in the usual way and after hearing what your counsel may have to say and hearing what the government's counsel may have to say. Do you understand that?

THE DEFENDANT: Yes, Sir.

II R. 12-14. (Emphasis added).

As noted, the court found the guilty pleas were made knowingly and understandingly and accepted them at the February 16 hearing. As will be developed below, the judge was misinformed at that time to the extent that he was not told of an agreement by the Government with defendant that no statement would be made by the prosecuting attorneys on the sentence to be given. In fact, the "Statement By Defendant In Advance Of Plea Of Guilty," typed in the United States Attorney's office, III R. 20, 34, and then signed by defendant and his counsel, was given to the judge after the judge made inquiry about such a statement. The statement said that "[t]he only plea agreement which has been entered into with the government is: No agreement." I R. 33.

Six days after the guilty pleas were entered, defendant moved to withdraw his pleas and his waiver of trial by jury, through new counsel. He alleged in his motion that he was ill and confused when the pleas were entered; that he had been told one count would be dismissed in exchange for his guilty plea to the other count; that he had been assured there would be no "pen time"; and that defendant felt he was not guilty of the charges against him. I R. 36-37. Defendant's affidavit supporting the motion stated that he had been told the second count would be dismissed in exchange for his guilty plea to the first count; that he was not informed until immediately before going in to make his plea that the second count was not going to be dismissed; that his attorney said the best thing he could do was plead to both counts; that he had been informed there would be no "pen time" and he was not aware that sentencing was left fully to the judge and that there was no control over it by any of the attorneys involved. He said he is innocent of the charges against him. I R. 39. In this connection we note that at the entry of his guilty pleas he had admitted his guilt to both counts on the stand. II R. 15-16.

Additional critical facts were developed at the February 25 hearing on Blackner's motion to withdraw his plea. Mr. Van Sciver, the attorney who represented Blackner when he appeared for trial and changed his pleas, gave the following testimony when called as a witness by the Government:

We met with the U.S. Attorney. We met in your office. We have met with narcotics agents and the deal that we thought would develop had not because the agent felt that the information which he gave was not new or worthwhile. Even after--prior to entering the plea we even had further discussions. You, at least, committed to not taking a position at the time of sentencing if we were to plead.

The agent suggested that positive representation about cooperation would be found in the presentence report at the time of sentencing if he were to cooperate after the entry of the plea and up until the time of the sentencing. And whether that is a good way to go no one knows. It seems to me, in light of the overwhelming evidence, a way to approach resolution of the problem.

Q Mr. VanSciver, at the time that you were advising Mr. Blackner, discussing with Mr. Blackner his change of plea did he appear to understand what you were saying to him?

A Well, Mr. Blackner is an intelligent man. I think he understands. I sure hope so. I don't intend to play any games.

MRS. CAMPBELL: I have no further questions.

III R. 23-24. (Emphasis added).

Later at the same February 25 hearing during cross-examination by defendant's counsel, Mr. VanSciver testified as follows:

Q As I understand, to a certain extent, then, that there were representations made on the...