U.S. v. Unger, No. 81-1005

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Before HEANEY, BRIGHT and ROSS; HEANEY; ROSS
• Citation: 665 F.2d 251
• Parties: UNITED STATES of America, Appellee, v. Crystal Marie UNGER, Appellant.
• Docket Number: No. 81-1005
• Decision Date: 08 December 1981

Page 251

665 F.2d 251 UNITED STATES of America, Appellee,
v.
Crystal Marie UNGER, Appellant. No. 81-1005. United States Court of Appeals,
Eighth Circuit. Submitted Aug. 12, 1981.
Decided Dec. 8, 1981.

Page 252

John H. Ehrhart (argued), Fisher, Martin, Ehrhart & McCright, Cedar Rapids, Iowa, for Crystal Marie Unger, appellant.

James H. Reynolds, U. S. Atty., N. D. Iowa, Cedar Rapids, Iowa, for appellee.

Crystal Marie Unger, pro se.

Before HEANEY, BRIGHT and ROSS, Circuit Judges.

HEANEY, Circuit Judge.

Crystal Marie Unger appeals from the district court's denial of her motion to vacate sentence pursuant to 28 U.S.C. § 2255. We reverse and remand for an evidentiary hearing on plaintiff's claims.

Crystal Marie Unger and Robert Ellis Unger were charged in a four-count indictment filed on February 24, 1977, alleging that the Ungers had kidnapped an infant, transported two stolen vehicles in interstate commerce and had conspired to commit the substantive offenses. The indictment was based on a series of events beginning on December 11, 1976, in Waterloo, Iowa. On that date, the Ungers visited Vicky Howard, a friend of Crystal. Ms. Howard planned to go out that evening, so it was agreed that Crystal would babysit Howard's two-month-old son, Ricky Joe, at the Ungers' hotel. Howard gave Crystal clothes, diapers, food, bottles and a car bed for the child. The state claims that the Ungers were to return the child at 1:00 p. m. the next day; the Ungers deny that such an understanding was reached. The child was not returned the next day, and Howard called the police.

Four days later, the Ungers left for California with the Howard baby in tow. They traveled in a stolen rental car, which they subsequently traded for a used car. They abandoned the used car and stole another vehicle from a rental agency. On January 2, 1977, the Ungers, under assumed names, sought medical treatment for the Howard baby at a Salt Lake City, Utah, hospital. The infant's scrotum had been torn open; one of the testicles was exposed and the other badly bruised. Surgery was performed, and the infant was discharged three days later.

The Ungers returned to Waterloo on January 10. They placed the infant and his belongings into a cab, and gave the driver instructions to take the child to Vicky at 218 Elm Street. They attached a note to the child stating that he had had an accident, that his genitalia should be kept clean and provided the name of the hospital and treating physician in Salt Lake City. The

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Ungers left Waterloo and traveled in the east for a month before returning to Iowa. They were arrested in Mason City, Iowa, on February 7, 1977.

The court appointed Donald Gottschalk to represent both defendants. On July 20, 1977, after a jury was sworn and testimony was about to commence, the Ungers were offered a plea bargain. They agreed to jointly plead guilty to the kidnapping charge, and Robert Unger further agreed to plead guilty to one count of transporting a stolen vehicle in interstate commerce. The remaining counts of the indictment were subsequently dropped.

The district court conducted a sentencing hearing on August 25, 1977. Counsel Gottschalk alternatively spoke on behalf of each of the defendants, urging leniency for both. They were each sentenced to a fifty-year term on the kidnapping charge, and Robert received a five-year concurrent term on the auto theft charge. Crystal, who was twenty-three years old at the time of sentencing, is scheduled to be released from prison in the year 2010.

A spate of motions were subsequently filed by Robert, usually on behalf of himself and his wife. The last such motion, filed on February 4, 1980, was denied by the district court on May 1, 1980. The court treated the motion as one requesting relief for Robert only. We affirmed. United States v. Unger, 635 F.2d 688 (8th Cir. 1980). None of the motions filed by Robert raised the precise issues before us on appeal.

Crystal filed a motion to vacate on her own behalf on January 11, 1978, which was dismissed without a hearing by the district court on May 22, 1978. The issues before us on appeal were not raised in that motion. The motion presently appealed from was filed by Crystal pro se on June 2, 1980. The court denied relief on September 12, 1980. No post-conviction evidentiary hearings have been held for either Crystal or her codefendant.

Crystal argues on appeal that her sentence was unconstitutionally imposed and must be vacated on two grounds: her plea was involuntary, and her counsel's conflict of interest denied her effective assistance of counsel. Alternatively, she asks that we remand to the district court for an evidentiary hearing on her claims. We agree that the petitioner is entitled to an evidentiary hearing, and remand to the district court for that purpose.

I. Voluntariness of the Plea.

Crystal Unger contends that her guilty plea was not the product of her free and willing choice but, rather, was induced by misrepresentations made by her attorney at the time she agreed to the plea bargain. In an affidavit filed with this Court, Crystal contends that at the time the plea bargain was offered to her and her husband, their attorney told her that she would be given probation if she pled guilty. She further alleges that when she responded negatively to the plea offer, her attorney told her that she would probably get the death penalty if she went to trial. She thereupon agreed to the guilty plea.

In United States v. Goodman, 590 F.2d 705 (8th Cir.), cert. denied, 440 U.S. 985, 99 S.Ct. 1801, 60 L.Ed.2d 248 (1979), this Court established that if a defendant can show that his or her guilty plea was entered in reliance on false assurances as to the sentence that would be imposed, the guilty plea may be set aside as involuntary. Goodman filed suit under section 2255, alleging that a deputy U. S. Marshal and a U. S. Probation Officer told him that he would receive a maximum of ten years imprisonment if he pled guilty to bank robbery charges pending against him. Goodman, in fact, received a twenty-five year sentence. This Court held that if Goodman could prove that these assurances were given and that he relied on them in making his decision to plead guilty, he would then be entitled to relief under section 2255. Id. at 711-712. The court remanded for further fact-finding proceedings.

This appeal is clearly governed by the Goodman rule. Here, as in Goodman, the movant has "indicated exactly what statements were allegedly made to (her)

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and when, where and by whom the statements were made." Id. at 712. The allegations are neither conclusory nor "wholly incredible" in the face of the record. See Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136 (1977). The movant has not alleged merely that her counsel erroneously predicted the favorable consequences of a guilty plea; that, of course, would not entitle her to relief. See id. at 70, 97 S.Ct. at 1627; United States v. Degand, 614 F.2d 176, 178 (8th Cir. 1980); Knight v. United States, 611 F.2d 918, 922 (1st Cir. 1979); United States v. Marzgliano, 588 F.2d 395, 398 n.6 (3d Cir. 1978); Bonner v. Wyrick, 563 F.2d 1293, 1298 (8th Cir. 1977), cert. denied, 439 U.S. 913, 99 S.Ct....