U.S. v. Dickerson

• Decision Date: 01 May 1990
• Docket Number: No. 89-2079,89-2079
• Citation: 901 F.2d 579
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Clyde DICKERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 579

901 F.2d 579

UNITED STATES of America, Plaintiff-Appellee, v. Clyde DICKERSON, Defendant-Appellant.

No. 89-2079.

United States Court of Appeals Seventh Circuit.

Argued Sept. 20, 1989.

Decided May 1, 1990.

Thomas M. Daly, Asst. U.S. Atty., East St. Louis, Ill., James L. Porter, Asst. U.S. Atty., for plaintiff-appellee.

Renee E. Schooley, Federal Public Defender, St. Louis, Mo., for defendant-appellant.

Before WOOD, Jr., POSNER, and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

Clyde E. Dickerson was convicted of interstate transportation of stolen property in violation of 18 U.S.C. Sec. 2314, possession of an unregistered firearm in violation of 26 U.S.C. Secs. 5861(d) and 5871 and possession of a firearm by a convicted felon in violation of 18 U.S.C. Sec. 922(g)(1). Dickerson successfully appealed the district court's original sentence. United States v. Dickerson, 857 F.2d 414, 418 (7th Cir.1988). Upon remand to the district court for resentencing, Dickerson received a sentence of twenty-three years of confinement, fifteen years of which resulted from the district court's application of the sentencing enhancement statute, found in 18 U.S.C. Sec. 924(e)(1). Dickerson on appeal challenges the district court's application of the sentencing enhancement provision in the statute. We affirm.

I

This case centers upon Clyde Dickerson's challenges to the validity of the district court's use of two prior Illinois convictions in applying the sentencing enhancement provisions of 18 U.S.C. Sec. 924(e) during his resentencing. Dickerson alleges that the district court erred in concluding that an August 12, 1982 Illinois burglary conviction was constitutionally valid and in concluding that a January 7, 1975 Illinois robbery conviction was a conviction for a "violent felony" under 18 U.S.C. Sec. 924(e)(2)(B). The facts applicable to both of Dickerson's contentions are sketchy at best.

Dickerson's burglary conviction of August 12, 1982 resulted from a plea of guilty in an Illinois state court. Although a court stenographer was present to record the proceedings that led to the state court's acceptance of Dickerson's guilty plea, the stenographer who recorded the proceedings died before she transcribed the proceedings. Because this stenographer had a unique style of shorthand, other court reporters were unable to interpret her writing symbols. As a result a transcript of the guilty plea proceedings was never made. Nonetheless, the court's judgment docket sheet contained a court record entitled "Order and Judgment on Plea and Sentence," which reflected that: "Defendant advises the court that he desires to withdraw his plea of not guilty and enter a plea of guilty to the offense of burglary...." and that "[d]efendant [was] advised of the consequences of his plea of guilty, the elements of the offense, and his right to a jury trial." ¹

In addition to the 1982 state burglary conviction, Dickerson also was convicted of robbery in an Illinois state court on January 7, 1975 following a plea of guilty. According to the transcript of the state court hearing on the acceptance of Dickerson's guilty plea, the prosecutor stated that Dickerson "demanded money from the victim, at which time [the victim] refused ... was knocked to the ground by Clyde Dickerson and money in the sum of $13.00 was taken from the [victim's] pocket...." The prosecutor also noted that the victim "identified Clyde Dickerson as being the person ... who struck him and took the money from him...." When the court inquired whether Dickerson agreed "in substance" with the prosecutor's statement of the facts surrounding the crime Dickerson replied that he did. However, the state court granted Dickerson's petition to elect to be treated as a narcotic addict under the Dangerous Drug Abuse Act, Ill.Rev.Stat. ch. 91 1/2, Sec. 120.1 et seq. even though Ill.Rev.Stat. ch. 91 1/2, Sec. 120.8 prohibited such an election where the defendant was convicted of a crime of violence. ² Prior to rendering his determination, the state trial judge stated:

"Before I can proceed with this matter, it is incumbent upon the Court to find that you are eligible to make this election in accordance with the procedures of Section 8 of the Act [Ill.Rev.Stat. ch. 91 1/2, Sec. 120.8] and Section 8 sub-paragraph A states that if the crime is a crime of violence, then you would not be eligible to elect treatment under the supervision of the Department, however, the Court will have to determine what the situation is with regard to robbery. Robbery in itself could be a crime of violence and would want to know something about the factual basis relative to the robbery to see whether or not this Court would entertain the eligibility to proceed under this Section.... I think there would have to be enough here to satisfy this Court that the crime was not one of violence or that the crime as committed is such that, in the Court's discretion, the Court would feel that he would still be eligible for [the] election."

After hearing the factual basis surrounding the crime the state trial court concluded:

"I think, in view of the factual basis submitted to the Court here and taking into consideration the admonishment and recommendations made by the Department of Drug Abuse and crimes to consider and in considering the purpose and intent of the statute, as set forth in People v. Robinson of the Fifth Appellate District of which this court is a part of, the Court will find him eligible to make the election; now, having found that he is eligible to make the election having stated to the Court that he is an addict, I would advise you, Mr. Dickerson, that the prosecution of this charge may be continued if you elect to submit to treatment and you are accepted for treatment by the Department...."

As previously mentioned, the district court determined that both of Dickerson's Illinois convictions were for "violent felonies" under 18 U.S.C. Sec. 924(e)(2)(B) and that both convictions could, thus, be properly considered for purposes of enhancing Dickerson's sentence under 18 U.S.C. Sec. 924(e). With respect to the 1982 burglary conviction, the court concluded that the unavailability of a transcript of Dickerson's guilty plea hearing was insufficient to bar the court from considering this offense for sentence enhancement purposes. In regard to the 1975 state robbery conviction, the district court stated:

"I think robbery per se fits under the definition in the 924 statute. 924 E2(b) defines violent felony as any crime punishable by imprisonment for a term exceeding one year, that as an element, has as an element of the use, attempted use, or threatened use of physical force against the person of another, and I think that statutory robbery fits that definition. The fact that [the state judge] in his wisdom may have found that, for purposes of some drug statute, ... this wasn't a violent crime is not binding on this Court with reference to the enhancement of 924."

Based upon these conclusions, the district court proceeded to consider the robbery conviction, the burglary conviction and another uncontested conviction as "violent felonies" in imposing a sentence enhancement pursuant to 18 U.S.C. Sec. 924(e).

II

Dickerson contends that the 1982 state burglary conviction resulted from what he refers to as an invalid guilty plea and that the district court, thus, erred in concluding that this conviction was a "violent felony" for purposes of the sentence enhancement provision of 18 U.S.C. Sec. 924(e). ³ Specifically, Dickerson maintains that the guilty "plea was not voluntary and intelligent as the record is silent on the key question of whether defendant was informed of his privilege against self-incrimination, his right to a trial by jury and his right to confront his accusers." Dickerson relies on Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274 (1969), for the proposition that a conviction pursuant to a guilty plea is not valid unless the defendant intelligently and voluntarily waives his privilege against self-incrimination, his right to trial by jury, and his right to confront his accusers. Dickerson, relying on Boykin, argues that a waiver of these rights cannot be presumed from a silent record. See Boykin, 395 U.S. at 243, 89 S.Ct. at 1712.

In United States v. Dickens, 879 F.2d 410, 411-12 (8th Cir.1989), the Eighth Circuit recently confronted the question of the proper analysis to be applied to the question of whether a conviction has followed a valid guilty plea in a case where no transcript of the guilty proceedings could be found:

"When a prior conviction is a number of years old and there is no transcript of the taking of the plea, 'evidence of the trial court's practice is precisely the evidence which the government will have at its disposal.' United States v. Goodheim, 686 F.2d 776, 777 (9th Cir.1982). We previously have recognized the validity of relying on evidence of custom or practice of trial attorneys and judges to refute allegations of procedural infirmities. See Brim v. Solem, 693 F.2d 44, 45 (8th Cir.1982), cert. denied, 460 U.S. 1072, 103 S.Ct. 1530, 75 L.Ed.2d 951 (1983) (testimony of defendant's attorney as to his and the trial court's practice was sufficient to prove defendant had been advised of his right to appeal). The Ninth Circuit has specifically held that evidence of custom and practice is sufficient to demonstrate compliance with Boykin. See Goodheim, 868 F.2d at 777 (testimony of attorneys of trial court's consistent practice in taking pleas was sufficient to prove validity of a plea); see also Bouchillon v. Estelle, 628 F.2d 926, 928 n. 5 (5th Cir.1980) ('Evidence as to standard practice or customary procedure can be used to demonstrate compliance with constitutional standards in a hearing on a petition for habeas corpus.')."

The Eighth Circuit's discussion reflects the important policy that: "When, through no fault of the State, transcripts of...