U.S. v. Todaro
| Decision Date | 12 January 1993 |
| Docket Number | No. 92-3704,92-3704 |
| Citation | 982 F.2d 1025 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Camillo TODARO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Bernard A. Smith, Stephen G. Sozio, Asst. U.S. Atty. (argued and briefed), Office of U.S. Atty., Cleveland, OH, for plaintiff-appellee.
Joseph E. Rutigliano (briefed), Rutigliano & Associates, Brian D. Dunbar (argued), Cleveland, OH, for defendant-appellant.
Before: KEITH and JONES, Circuit Judges; and JOINER, Senior District Judge. *
Defendant Camillo Todaro appeals from the district court's denial of his motion to vacate his guilty plea. Todaro claims that his attorney promised him that he would be sentenced to probation if he pled guilty. Todaro was sentenced to seven months incarceration, seven months home detention and a period of two years of supervised release after pleading guilty to operating an illegal gambling business under 18 U.S.C. § 1955, as charged in one count of a two-count indictment. Todaro's motion to vacate was filed pursuant Fed.R.Crim.P. 32 and 28 U.S.C. § 2255. For the reasons that follow, we affirm the denial of Todaro's motion.
On the morning that he was scheduled to go to trial, Todaro elected to change his plea to guilty. The terms of the plea agreement were then put on the record, and the court advised Todaro of his rights and inquired into the voluntariness of the plea. 1
The court first informed Todaro of the permissible statutory sentence for the offense to which he was pleading guilty but advised Todaro that the sentencing guidelines would control his sentence. The assistant United States attorney then put the terms of the agreement on the record, most of which had to do with the allocation of points under the sentencing guidelines. Specific inquiries and statements were made on the issue of sentencing. The assistant United States attorney stated that "[t]he parties agree to a period of supervised release of not less than two years, nor more than three years, if a term of imprisonment is imposed." (Emphasis added.) The court again informed Todaro that the sentencing guidelines controlled the sentence to be given, and asked whether Todaro's attorney had reviewed the guidelines with him. Todaro's attorney, Jacqueline Johnson, answered yes.
THE COURT: You understand I will not be able to determine the sentence until I get a presentence report. You both [Todaro and his co-defendant] will have a chance to review it with your lawyers and have a chance to make any objections after I get that and review it.
Do you understand that?
MR. TODARO: Yes.
....
THE COURT: And you understand that parole has now been abolished, so if there is time, you have to serve whatever time is given.
You understand that, Mr. Todaro?
MR. TODARO: Yes.
....
THE COURT: And you understand also if the sentence may be more severe than expected, I will keep you bound to your plea, I would not let you withdraw your plea.
Mr. Todaro?
MR. TODARO: Yes.
....
....
The court then confirmed that Todaro and his co-defendant wanted to plead guilty and accepted their pleas, finding that they were knowingly, intelligently and voluntarily made.
At the time of sentencing, the court first reiterated the terms of the plea agreement, stating specifically that "the parties further agree that if the Court imposes imprisonment, that the defendant will be placed on supervised release for a period of two to five years following imprisonment, and as a result there would not be an appeal." The court heard argument from the parties' attorneys, the government contending that "this is a guy that needs to be punished and needs to do some time in jail," and Todaro's attorney arguing that Todaro was not a threat to the community and that the objects of the criminal justice system would not be served by placing Todaro in jail. The court imposed sentence of seven months incarceration and seven months home detention, followed by two years of supervised release.
Todaro then stated, for the first time, that he had pled guilty with the understanding that he was going to get probation. The court noted that legally there was no possibility that Todaro could be sentenced to straight probation. The court stated that a written motion would be required to withdraw the plea, but inquired as to who allegedly made the promise of probation. Todaro said his attorney and his co-defendant's attorney promised probation, that he "was supposed" to say that he understood the court's explanation regarding sentencing, and that his attorney explained the sentence to him differently. Todaro asserted that
The judge questioned the two defense lawyers. The co-defendant's lawyer said that his case was better than Todaro's, but said there was no promise of probation. "From day one, Mr. Todaro has heard things that he wants to hear and this has been difficult from day one." Todaro's lawyer also denied promising probation. Johnson stated that she told him that if she was successful in her argument to the court he would be eligible for home detention, and advised him that they would have to wait for the presentence report.
[T]o my client I said exactly what the guideline ranges were. I would do my best to make the argument which I did in Court today that he should receive the minimal sentence.
....
No promise was made to him that he would receive straight probation. Because as you indicate, your Honor, under the guidelines that is not possible without a great departure, and I did tell Mr. Todaro that I would indeed argue for home detention, which I did.
Todaro made explicit the basis for his objections--that he never would have pled guilty if it meant he would have to go to jail. The court stated that Todaro had to file a written motion, but would remain free on bond.
Attorney Johnson filed a motion to withdraw and new counsel was appointed. Todaro then filed a motion to vacate his guilty plea, pursuant to both Fed.R.Crim.P. 32(d) and 28 U.S.C. § 2255. Todaro's motion reiterated the factual allegations he had made in court at the time of sentencing. The motion was supported by two affidavits, that of Todaro himself, and that of a friend, Judith Pallotto, who stated that she had heard statements of both Todaro's attorney and his co-defendant's attorney to the effect that Todaro would be getting probation or would not be going to jail. Pallotto did not claim that she had witnessed the promises of probation that Todaro alleges attorney Johnson had made to him before he pled guilty.
Rule 32(d) allows a motion to withdraw a guilty plea made before sentence is imposed, and states that the court may permit the withdrawal of the plea upon a showing by the defendant of any fair and just reason. Rule 32(d) further states, however: "At any later time, a plea may be set aside only on direct appeal or by motion under 28 U.S.C. § 2255." Because the oral motion to withdraw the guilty plea was made at the sentencing hearing, the district court elected to consider the motion under Rule 32. The court recited the pertinent facts, including attorney Johnson's denial of any promises regarding probation, and concluded that "there is no fair and just reason to permit the defendant to withdraw his plea of guilty."
We must first decide whether the district court had the authority under Rule 32(d) to rule on Todaro's motion. Neither party argues that Rule 32 applies, and it should not.
In United States v. Baker, 790 F.2d 1437 (9th Cir.1986), the court held that a district court was without jurisdiction to entertain a Rule 32 motion to vacate a plea where the motion was made after sentencing, and that the court of appeals thus lacked jurisdiction to consider the merits of the appeal from the denial of the motion. However, since the case was before the court on a direct appeal as well, the court went on to consider the contention that the plea should have been set aside.
Even though Todaro made his first request to withdraw his plea on the day of sentencing, the request was made after sentence was imposed, and thus Rule 32(d) does not provide a vehicle for a challenge to the plea. However, because Todaro's motion to vacate his plea was brought under both Rule 32(d) and 28 U.S.C. § 2255, this court will consider his arguments under the latter provision. 2
Under 28 U.S.C. § 2255, Todaro must demonstrate the existence of "a fundamental defect which inherently results in a complete miscarriage of justice" or "an omission inconsistent with the rudimentary demands of fair procedure" in order to be able to withdraw his plea. Fed.R.Crim.P. 32(d) advisory committee's note to 1983 amendment (citing Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962)).
Todaro claims that the court abused its discretion in failing to hold an evidentiary hearing on his motion as he contends is required by 28 U.S.C. § 2255.
Section 2255 states in pertinent part:
Unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.
(Emphasis added.)
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