U.S. v. Corbitt, 75-1975
Citation | 541 F.2d 146 |
Decision Date | 08 June 1976 |
Docket Number | No. 75-1975,75-1975 |
Parties | UNITED STATES of America v. Ronald CORBITT, Appellant, and James Curtis Johnson. . Submitted Under Third Circuit Rule 12(6) |
Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Before VAN DUSEN, GIBBONS and ROSENN, Circuit Judges.
This appeal challenges a July 16, 1975, judgment and commitment entered as a result of defendant-appellant's guilty plea to Count I of a two-count indictment. The indictment charged the defendant and a co-defendant with unlawfully taking by force $22,865. from the Atlantic National Bank in Pleasantville, New Jersey, in violation of 18 U.S.C. § 2113(a) and § 2. As more fully set forth below, we remand for a hearing on defendant's claim that he had ineffective assistance of counsel at the time of the entry of his guilty plea.
The pertinent facts are as follows. On February 20, 1975, defendant-appellant Ronald Corbitt, who was represented by appointed counsel, entered a not guilty plea to Counts I and II of the above indictment. Subsequently defendant voiced complaints that his appointed counsel was not properly representing him. As a result, James Herman, Esq. was ordered to be substituted as counsel on April 25, 1975.
In early May, defendant's new counsel, Mr. Herman, filed motions to suppress (1) the testimony of an F.B.I. agent to whom Corbitt had allegedly conceded his participation in the robbery, as well as a written report by the agent confirming the admission, and (2) certain identification testimony and other allegedly inadmissible evidence. On May 7, 1975, after a suppression hearing conducted over a three-day period, following the selection and swearing of the jury, the trial judge denied the motions to suppress. Later on the same day, Mr. Herman, as counsel for Corbitt, moved for a withdrawal of the not guilty plea and entry of a guilty plea to Count I of the indictment, using inter alia, this language:
Subsequently, Corbitt filed a motion to withdraw his guilty plea to Count I. This motion came before the court on July 16, 1975. At that time, his counsel (Mr. Herman) made these statements, inter alia: 2
Defendant now contends (page 20 of his counsel's brief) that "by specifically placing on the record the fact that his guilty plea was based on" the court's denial of the motions at the suppression hearing, he believed the correctness of these rulings on those motions was preserved for appeal. We have concluded that, under the unusual facts of this case, the trial court should have secured different counsel for Corbitt as the result of the disclosures on July 16 and should have had Mr. Herman testify as to exactly what he had said to Corbitt prior to the entry of the guilty plea on May 7 in order that the court could be in a position to determine whether this defendant was denied effective assistance of counsel under the standards set forth in Moore v. United States, 432 F.2d 730 (3d Cir. 1970). Although the record discloses substantial prejudice to the Government in permitting the withdrawal of the guilty plea on July 16 4 (N.T. 11-15), waiver of constitutional rights is not to be presumed. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
We have considered the other contentions (including the following) raised by the defendant in his pro se brief, as well as those raised by his counsel, and reject them:
(1) The district court committed reversible error in denying appellant's motion to withdraw his guilty plea prior to the imposition of sentence and after a timely motion had been filed pursuant to F.R. Crim.P. 32(d). 5
(2) Under the totality of the circumstances, appellant's guilty plea was the result of (a) coercion due to mental anguish caused by an unconstitutional setting conducive to diminishing the human will, in violation of F.R.Crim.P. 11 and the Eighth Amendment, and/or (b) fraud which rendered this plea and conviction invalid.5
(3) Reversal is required because counsel failed to consult with the appellant concerning a damaging and erroneous probationary report that would be read by the sentencing judge. 6
(4) The prosecution abused its constitutional duty to disclose exculpatory evidence by suppressing eye-witness testimony and FBI summary reports taken from eye-witnesses in violation of the appellant's Fifth and Sixth Amendment guarantees in light of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). 7
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