U.S. v. Pressley, 78-5786

• Decision Date: 13 September 1979
• Docket Number: No. 78-5786,78-5786
• Citation: 602 F.2d 709
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jack Burgess PRESSLEY, Jr., a/k/a George Armstrong Breckenridge, Defendant-Appellant. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 709

602 F.2d 709

UNITED STATES of America, Plaintiff-Appellee, v. Jack Burgess PRESSLEY, Jr., a/k/a George Armstrong Breckenridge, Defendant-Appellant.

No. 78-5786

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

Sept. 13, 1979.

Frank M. Garza, Corpus Christi, Tex. (Court-appointed), for defendant-appellant.

John M. Potter, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before GOLDBERG, RONEY and TJOFLAT, Circuit Judges.

PER CURIAM:

The question on this appeal is whether the trial judge abused his discretion by denying the motion by appellant Jack Burgess Pressley, Jr., to withdraw his guilty plea. Because the present state of the record is inadequate to allow us to make this determination, we must remand for further inquiry.

On July 10, 1978, Pressley was arraigned and entered a plea of not guilty to three counts of transportation of stolen goods in interstate commerce. On September 6, 1978, following plea bargaining, Pressley entered a plea of guilty to one count of the indictment. The plea bargain agreement provided that the other remaining count would be dismissed, ¹ the government would stand mute at sentencing, and any sentence imposed would run concurrently with another federal sentence Pressley was then serving.

On October 4, 1978, Pressley appeared for sentencing and stated that he wished to withdraw his guilty plea. After initially indicating that Pressley would be allowed to withdraw his guilty plea, the trial court delayed final determination pending a psychiatric evaluation of Pressley. On December 11, 1978, satisfied by the psychiatric report that Pressley was competent, the trial court denied his motion and proceeded to sentencing.

Rule 32(d), Fed.R.Crim.P., governs motions to withdraw pleas of guilty or Nolo contendere :

A motion to withdraw a plea of guilty or of Nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.

When the defendant waives his constitutional rights by pleading guilty, it is crucial that the waiver be knowing and voluntary. McCarthy v. U. S., 394 U.S. 459, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969). See also Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). "Courts must always be diligent to ascertain whether a plea of guilty was understandingly made, and when it appears Before sentencing that such a plea was entered by a defendant who . . . acted as a result of mistake, it is an abuse of discretion not to permit the plea to be withdrawn." De Leon v. United States, 355 F.2d 286, 289 (5th Cir. 1966). If, in the exercise of the court's discretion, there appears to be any reason to allow withdrawal of a guilty plea prior to sentencing, leave should be freely granted. Kercheval v. U. S., 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927).

On the record presently before us, we are unable to determine on what basis the trial court denied appellant's motion to withdraw his guilty plea. Therefore, we cannot determine whether its exercise of discretion was reasonable. The court's finding that Pressley was competent to understand the proceedings at the time of his original plea, although a prerequisite to validity of the plea, does not end the inquiry. Such factors as whether close assistance of counsel was available, whether the original plea was knowing and voluntary, and whether judicial resources would be...