U.S. v. Hawthorne, s. 75-1549

Decision Date18 February 1976
Docket NumberNos. 75-1549,75-1727,s. 75-1549
PartiesUNITED STATES of America, Appellee, v. Simon HAWTHORNE, Appellant.
CourtU.S. Court of Appeals — Third Circuit

Robert L. Potter, Pittsburgh, Pa., for appellant.

Blair A. Griffith, U.S. Atty., Charles F. Scarlata, Asst. U.S. Atty., James J. West, Asst. U.S. Atty., Pittsburgh, Pa., for appellee.

Before ALDISERT, HUNTER and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge:

This appeal from the defendant's guilty plea asserts error in the denial of a pre-plea motion and attacks the validity of the sentence imposed. We conclude on the authority of Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), that the defendant's guilty plea forecloses our consideration of his pre-plea motion. However, holding that the district court's sentence was infirm under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), we vacate and remand for re-sentencing.

I.

In May, 1973 a federal grand jury in the Western District of Pennsylvania returned a two-count indictment against Simon Hawthorne for violating 21 U.S.C. § 841(a)(1) (distribution of cocaine). 1 Each count of the indictment alleged a separate sale of cocaine. On July 5, 1973, Hawthorne pleaded guilty to Count II of the indictment in return for the Government's promise to move for dismissal of Count I. The district court sentenced Hawthorne to ten years in prison and provided

that the defendant shall become eligible for parole, under 18 U.S.C.A., Section 4208(a)(2) at such times (sic) as the Board of Parole may determine. In addition to the sentence of imprisonment, a special parole term of five (5) years is hereby imposed pursuant to 21 U.S.C., Section 841.

Upon the Government's motion, the district court dismissed Count I of the indictment.

Thereafter, Hawthorne sought to withdraw his guilty plea. The district court denied the motion. On appeal this Court vacated the district court's order and remanded to permit Hawthorne to unequivocally explain the reasons which he claimed vitiated his plea. United States v. Hawthorne, 502 F.2d 1183 (3d Cir. 1974). After remand the district court granted Hawthorne's motion to withdraw his guilty plea.

Hawthorne was arraigned again on November 13, 1974. At that time the district court vacated its earlier order dismissing Count I of the indictment and ordered that count reinstated. Haw- thorne then filed a pretrial motion to dismiss Count I of the indictment 2 which was denied. 3 Pursuant to a plea bargain Hawthorne pleaded guilty to Count II of the indictment in exchange for the Government's dual promise to move for dismissal of Count I and to recommend a prison term not in excess of ten (10) years.

Following a three month study period ordered under 18 U.S.C. § 4208(c), the district court, without making reference to any sentencing statute, sentenced Hawthorne on May 9, 1975 to

Ten (10) years as to Count 2, with an allowance for such time as the defendant has already served. In addition to the sentence of imprisonment, a special parole term of three (3) years is hereby imposed pursuant to 21 U.S.C. Section 841.

Thus, the custodial portion of the 1975 sentence was the same as the one pronounced in 1973, and the special parole term was three years instead of five years. The 1973 sentence provided that appellant would become eligible for parole under § 4208(a)(2) at such time as the Board of Parole may determine; the 1975 sentence contained no similar provision. On the Government's motion, the district court dismissed Count I of the indictment. Hawthorne filed a timely notice of appeal from this sentence.

Thereafter Hawthorne moved under Rule 35, Fed.R.Crim.P., to correct his sentence so as to establish parole eligibility at the discretion of the Parole Board under 18 U.S.C. § 4208(a)(2). Apparently under the belief that Hawthorne's appeal from the sentence deprived it of jurisdiction, the district court issued a memorandum which discussed and justified its sentence without specifically ruling on Hawthorne's motion. Hawthorne filed still another notice of appeal from this memorandum.

This Court has jurisdiction of the appeal from the sentence entered on May 9, 1975 pursuant to 28 U.S.C. § 1291. Since the district court only filed an opinion but did not enter an order denying Hawthorne's Rule 35 motion, there is no final decision as to this motion. However, since all of Hawthorne's arguments are raised by his appeal from the sentence of May 9, 1975, our lack of jurisdiction as to the Rule 35 motion has no bearing upon the issues presented.

II.

Initially, Hawthorne contends that the guilty plea to Count II was somehow less than voluntary because of the district court's denial of his pre-plea motion to dismiss Count I. Through his pre-plea motion Hawthorne sought to ascertain the maximum sentence which he faced if he were to proceed to trial on both counts. His uncertainty stemmed from the fact that the plea negotiations of 1973 resulted in the withdrawal of Count I, which Count had now been reinstated. Thus, he faced a two-count indictment and was uncertain as to whether he could be convicted and sentenced on both counts.

The district court denied Hawthorne's motion to dismiss Count I and stated with respect to the maximum sentence possible under the indictment:

The maximum penalty is what the statute says, unless there are circumstances which may come out before the court that would indicate that he should get less than the maximum. That is all I can tell you.

Hawthorne then participated in new plea negotiations resulting in his guilty plea to Count II and the Government's motion to dismiss Count I.

Initially, we observe that this guilty plea was not conditional, as in United States v. Zudick, 523 F.2d 848 (3d Cir. 1975). He did not make his guilty plea expressly contingent upon a reservation of the right to challenge any specifics of the pre-plea proceedings. Instead, Hawthorne relies upon the separate bases reflected by the rules enunciated in Kelsey v. United States, 484 F.2d 1198 (3d Cir. 1973) and Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974). In response the Government argues that Hawthorne's failure to attack the voluntariness of his guilty plea to Count II precludes this Court from examining the merits of his pre-plea motion.

Hawthorne's reliance upon Kelsey v. United States, supra, is totally misplaced. In Kelsey this Court held that a guilty plea cannot be said to be voluntarily and understandingly made

(w)here defense counsel erroneously informs a defendant entering a plea of guilty that sentences . . . could be pyramided into a 75-year maximum and the district court fails to correct this error. Id. at 1198-99. Thus, this Court vacated a guilty plea where the defendant was erroneously informed as to the maximum sentence possible on each of the counts to which he pleaded guilty.

Hawthorne does not allege that he was misinformed as to the consequences of his guilty plea to Count II. Rather, he claims that he could not, with informed consent, plead guilty to Count II without first being informed of the maximum sentence to which he was exposed under both counts if he proceeded to trial. Kelsey offers no support for this argument.

Nor is Rule 11, Fed.R.Crim.P., 4 helpful to Hawthorne. Rule 11 only requires that "the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea." (Emphasis added.) Thus, a plea is voluntary when made with knowledge of the penalty that attaches to the offense to which the defendant pleads guilty. Uncertainty as to the possible sentence that might follow from trial of counts to which the defendant has not pleaded guilty cannot invalidate a guilty plea as to that count to which the defendant has pleaded guilty. Thus, neither Kelsey nor Rule 11 lend support to Hawthorne's argument that the denial of his pretrial motion is now reviewable.

The district court judge properly refused to render an advisory opinion prior to trial as to the dimensions of the sentence which might be imposed on conviction under all counts of the indictment. We find no error in the district court's acceptance of Hawthorne's plea under these circumstances.

The second prong to Hawthorne's argument is based upon Blackledge v. Perry, which represents an exception to the consequences of the guilty plea announced in Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973):

A guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea . . . .

Blackledge held that respondent Perry was not barred by his guilty plea to a felony indictment from challenging the constitutionality of that indictment under the Due Process Clause of the Fourteenth Amendment. Perry had been convicted of the misdemeanor of assault with a deadly weapon in the District Court of Northhampton County, North Carolina. He filed a notice of appeal which entitled him under state law to a trial de novo in the County Superior Court. After the filing of this appeal but before trial, the prosecutor obtained a felony indictment based upon the same conduct charging Perry with assault with a deadly weapon with intent to kill and inflict serious bodily injury. Perry then pleaded guilty to the felony indictment.

The Supreme Court held that the guilty plea did not foreclose Perry's assertion of his rights under the Due Process Clause of the Fourteenth Amendment. The Court carved out an...

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