U.S. v. Thompson, s. 80-2568
| Decision Date | 10 June 1982 |
| Docket Number | 80-2609,Nos. 80-2568,s. 80-2568 |
| Citation | 680 F.2d 1145 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. John Eric THOMPSON and Ralph Giacinti, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. John Edward WILLIAMS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Joseph R. Napoli, Peoria, Ill., Kennith W. Blan, Jr., Danville, Ill., for defendants-appellants.
Lee Smith, U. S. Atty., Gerald D. Fines, U. S. Atty., Springfield, Ill., Janet L. Jannusch, Asst. U. S. Atty., Peoria, Ill., for the U. S.
Before SWYGERT, Senior Circuit Judge, SPRECHER, Circuit Judge, * and HOFFMAN, Senior District Judge. **
Following the return of an indictment against John Eric Thompson, John Edward Williams and Ralph Giacinti charging, in Count I, a conspiracy to manufacture methamphetamine, a Schedule II Controlled Substance and, in Count II, attempting to produce a quantity of methamphetamine, the defendants were directed to appear for arraignment on July 21, 1980. 1 All entered pleas of not guilty and a jury trial was scheduled for September 16, 1980. The defendants, represented by separate counsel, 2 filed motions to suppress the evidence allegedly illegally seized, along with other miscellaneous motions not now relevant to the case.
On August 15, 1980, the district court heard and denied the motion to dismiss filed by Thompson and Giacinti. Discovery motions were disposed of without controversy. On the motions to suppress, the court heard the evidence, took the matter under advisement, and invited briefs. Subsequently, on September 8, 1980, the district court entered its decision and order denying the motions to suppress for reasons stated therein.
One day prior to the scheduled trial date, the defendants, Thompson and Giacinti, having entered into a plea agreement with the prosecution, changed their pleas of not guilty to Count I of the indictment, and tendered their pleas of guilty to that count. After interrogating the parties and the attorneys, in substantial compliance with Rule 11, F.R.Cr.P., 3 the Court accepted the plea agreement and referred the matter for a presentence investigation and report. Direct inquiry was made personally of the defendants and they stated that they understood the agreement and approved of same.
Later that same day, the defendant, Williams, appeared and asked leave to change his plea to that of guilty on Count I, pursuant to a like agreement that the Government had already made with Thompson and Giacinti. Once again, in compliance with Rule 11, the district court went over the plea agreement, received assurance that Williams understood and approved of it, and asked the pertinent questions to assure the understanding and voluntariness of the guilty plea as well as the maximum possible punishment which could be imposed. 4 The district court then accepted the plea agreement and, as with respect to Thompson and Giacinti, referred the matter for a presentence investigation and report.
Between September 16, 1980, when the court accepted the plea agreements, and the date scheduled for sentencing disposition on October 24, 1980, Williams secured additional counsel. On October 23, 1980, Williams, through his new additional counsel, filed a motion to withdraw his plea of guilty pursuant to Rule 32(d), F.R.Cr.P. On the following day, after hearing from new and former counsel for Williams, the court denied the motion, and thereafter sentenced all three defendants on Count I, and dismissed Count II on motion of the Government. On October 30, 1980, Thompson and Giacinti filed their joint notice of appeal and Williams followed with his notice of appeal on November 3, 1980.
It was not until February 23, 1981, that Thompson and Giacinti filed their motion in the district court to withdraw their respective pleas of guilty. They also filed a motion for reduction or correction of sentence under Rule 35, F.R.Cr.P. In the interim, the district court had lost jurisdiction to act upon the motions due to the pendency of the appeal.
The principal issue-and probably the sole issue of importance-on this appeal pertains to the right of a defendant to withdraw his plea of guilty after the acceptance of the plea agreement but prior to sentencing as to Williams, and the right, if any, to withdraw a plea of guilty after sentencing with respect to Thompson and Giacinti. With respect to the last named defendants, they obtained new counsel after the appeal had been docketed and an opening brief had been filed by former trial counsel. Their motions to withdraw their pleas of guilty are grounded upon ineffective services rendered by their former attorneys.
The matter involving these defendants' (1) motion for leave to amend the record on appeal filed March 16, 1981, and (2) a motion for extension of time within which to file appellants' amended brief on appeal filed the same day, was referred to Judge Swygert as the presiding judge of the panel; the case having been scheduled for oral argument on April 9, 1981. On April 6, Judge Swygert, having received the Government's response pursuant to his order of March 19, 1981, directed that the "named motions will be taken with the case".
Without a complete record on the issue of alleged incompetent counsel, it is impossible for this court to determine this issue. Rule 32(d), F.R.Cr.P. provides:
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.
A review of the record affords no basis for this court to find any semblance of "manifest injustice". Thompson and Giacinti each received a sentence of three years under 18 U.S.C. § 4205(b), thereby making them eligible for parole consideration at any time. The maximum punishment was five years and a fine of $15,000, either or both, 21 U.S.C. § 841(b)(1)(B). The appellants argue that the sentences "were unduly harsh and without regard and consideration of all the pertinent factors." The conspiracy charge between Thompson, Giacinti and Williams pertained to the manufacture of methamphetamine, a Schedule II controlled substance. Two undercover DEA agents were likewise involved. The district court carefully considered the motions to suppress and the factual basis for the pleas, as well as the evidence presented by way of mitigation, prior to sentencing. Unless we are to adopt a per se rule that a first offender is automatically entitled to a lesser sentence than that here imposed, we fail to note any factors which were not considered and weighed by the district judge. It is an accepted rule of law that a Court of Appeals has no power to change or reduce a sentence on the ground that it is too severe, and there is presently no provision for appellate review unless the imposed sentence exceeds the statutory maximum or the sentencing judge has failed to exercise any discretion in imposing a sentence. United States v. Main, 598 F.2d 1086, 1094 (7th Cir.), cert. denied, 444 U.S. 943, 100 S.Ct. 301, 62 L.Ed.2d 371 (1979); United States v. Johnson, 507 F.2d 826, 830-31 (7th Cir. 1974), cert. denied, 421 U.S. 949, 95 S.Ct. 1682, 44 L.Ed.2d 103 (1975). The fact that the district court imposed a five year sentence as to Williams is at least some indication that he exercised discretion in sentencing Thompson and Giacinti.
To permit consideration by an appellate court of a belated motion to withdraw a plea of guilty, or to otherwise remand the matter back to the district court, would literally destroy the proper administration of justice in handling criminal appeals. Nearly all defendants, having entered guilty pleas, would note appeals and, shortly before argument, would file a motion to withdraw the guilty pleas solely for the purpose of delay. If, in fact, these appellants have a meritorious claim of ineffective representation, they may, if so advised, proceed under 28 U.S.C. § 2255, but this should never delay the ordinary course of an appeal.
The motions for reduction of sentences are for the trial court. Thompson and Giacinti, by reason of the appeal, have 120 days following receipt of the mandate from this court to file any motion under Rule 35, F.R.Cr.P.
This appellant presents a different problem as he filed his motion to withdraw his plea of guilty one day prior to sentencing. In other respects his case is essentially identical with that of Thompson and Giacinti.
As noted, Rule 32(d), F.R.Cr.P., provides that a motion to withdraw a plea of guilty "may be made only before sentence is imposed or imposition of sentence is suspended". Thus, Williams complied with Rule 32(d). The question is whether the filing of a timely motion under Rule 32(d) affords a defendant an absolute right to withdraw his plea of guilty. Appellant's present counsel urges that there would be no prejudice to the Government in permitting the plea to be withdrawn and, in the absence of a showing of prejudice, the right to withdraw is absolute.
We disagree with the contention that the Government must show prejudice or otherwise the motion to withdraw a guilty plea must be granted. In support of appellant's position there is some authority, although it appears to be the minority view. In United States v. Savage, 561 F.2d 554 (4th Cir. 1977), the defendant pleaded guilty pursuant to a plea agreement that the government would recommend a sentence of five years. At the sentencing hearing, it being agreed that the court was not bound by the recommendations, the trial judge indicated his unwillingness to follow the government's recommendation, so the defendant moved to withdraw his plea prior to sentencing. The motion was denied and, on appeal, the court held that there...
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