United States v. Colonna

• Decision Date: 12 April 1944
• Docket Number: No. 8482.,8482.
• Citation: 142 F.2d 210
• Parties: UNITED STATES v. COLONNA.
• Court: U.S. Court of Appeals — Third Circuit

142 F.2d 210 (1944)

UNITED STATES v. COLONNA.

No. 8482.

Circuit Court of Appeals, Third Circuit.

Argued January 18, 1944.

Decided April 12, 1944.

George R. Sommer, of Newark, N. J., for appellant.

Charles A. Stanziale, Asst. U. S. Atty., of Newark, N. J. (Thorn Lord, U. S. Atty., of Trenton, N. J., on the brief), for appellee.

Before JONES and McLAUGHLIN, Circuit Judges and KALODNER, District Judge.

KALODNER, District Judge.

The issue here is:

Was there an abuse of discretion by the trial court in denying the motion of the defendant-appellant, Colonna, for leave to withdraw his pleas of guilty?

On May 11, 1943, Colonna pleaded not guilty when arraigned before Judge Meaney of the United States District Court for the District of New Jersey on two indictments.¹ On May 19, 1943 the case was reached for trial and at that time permission was granted Colonna to change his pleas from not guilty to guilty. On May 21, 1943, when Colonna appeared for sentence before Judge Moore, a visiting judge, he asked for leave to withdraw his guilty pleas so as to plead not guilty. Judge Moore, after considering the record of the proceedings on May 19th when Colonna was granted permission to change his pleas from not guilty to guilty, refused to grant leave to withdraw the pleas of guilty and sentenced Colonna to prison.

Colonna contends that the denial of his motion to withdraw his pleas of guilty was tantamount to a denial of his constitutional right of trial by jury and was an abuse of the trial court's discretion. The statute² empowering the Supreme Court of the United States to prescribe rules of practice and procedure in criminal cases provides:

"* * * nothing herein contained shall be construed to give the Supreme Court the power to abridge the right of the accused to apply for withdrawal of a plea of guilty, if such application be made within ten days after entry of such plea, and before sentence is imposed."

Rule 2(4) of the Supreme Court Rules of Criminal Procedure 18 U.S.C.A. following section 688 provides as follows:

"A motion to withdraw a plea of guilty shall be made within ten (10) days after entry of such a plea and before sentence is imposed. As amended May 31, 1938."

The defendant concedes that neither under the statute or Rule 2 does he have an absolute right to withdraw a plea of guilty even though his motion is filed within ten days after the original plea of guilty and before the imposition of sentence. He further concedes that the granting of a motion to withdraw a plea of guilty is addressed to the sound discretion of the trial court. He vigorously contends, however, that where the defendant insists that he is innocent of the charges contained in the indictment and offers "any" explanation for his having pleaded guilty, the trial court should grant his motion to withdraw his plea of guilty, as long as such application is seasonably made under Rule 2.

It is well settled that a motion for leave to withdraw a plea of guilty and to substitute a plea of not guilty is addressed to the sound discretion of the trial court; and further that the exercise of such discretion is reviewable by this court. Camarota v. United States, 3 Cir., 2 F.2d 650; Ward v. United States, 6 Cir., 116 F.2d 135; United States v. Fox, 3 Cir., 130 F.2d 56.

The cases uniformly hold that motions to withdraw a plea of guilty should be denied where the plea of guilty was entered either by the defendant or his counsel in his presence, and if the defendant knew and understood what was being done and there was not present any circumstances of force, mistake, misapprehension, fear, inadvertence or ignorance of his rights and understanding of the consequences of the plea.

That the withdrawal of a plea of guilty is not "a matter of right" was stressed in United States v. Denniston, 2 Cir., 89 F.2d 696, 110 A.L.R. 1296. Said the court on page 698 of 89 F.2d:

"Once made, the appellant could not withdraw his plea as a matter of right * * *."

The rule (1) as to the acceptance of a guilty plea and (2) as to a withdrawal of such plea, was succinctly stated in Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009. Said the court, 274 U.S. at pages 223, 224, 47 S.Ct. at page 583, 71 L.Ed. 1009:

"* * * Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences. When one so pleads he may be held bound. United States v. Bayaud, C.C., 23 F. 721. But, on timely application, the court will vacate a plea of guilty shown to have been unfairly obtained or given through ignorance, fear or inadvertence. Such an application does not involve any question of guilt or innocence. Commonwealth v. Crapo, 212 Mass. 209, 98 N.E. 702. The court in exercise of its discretion will permit one accused to substitute a plea of not guilty and have a trial if for any reason the granting of the privilege seems fair and just. Swang v. State, 2 Cold., Tenn., 212, 88 Am.Dec. 593; State v. Maresca, 85 Conn. 509, 83 A. 635; State v. Nicholas, 46 Mont. 470, 472, 128 P. 543; State v. Stephens, 71 Mo. 535; People v. McCrory, 41 Cal. 458, 461; State v. Coston, 113 La. 717, 720, 37 So. 619; Bishop's New Criminal Procedure, § 747."

The courts have been especially careful to ascertain whether the plea of guilty was freely and understandingly made; United States v. Denniston, supra; Gleckman v. United States, 8 Cir., 16 F.2d 670. In Ward v. United States, supra 116 F.2d 136, the rule was thus stated:

"It is not error to refuse leave to withdraw the plea if the defendant fully understood his rights, the nature of the charge against him, and the consequences of such a plea. * * *"

In United States v. Fox, supra, this court cited with approval the decision in Ward v. United States. Referring to the guilty plea entered by the defendant, the court on page 59 of 130 F.2d, said:

"* * * With full knowledge of the facts and possible consequences he took, under careful legal advice, a course of action. * * *"

It is important here to note that Colonna was represented by the same counsel, William J. Hanley, throughout the proceedings, i. e. on May 11th when he was arraigned and pleaded not guilty, on May 19th when he changed his pleas to guilty, and on May 21st when he unsuccessfully sought to withdraw his pleas of guilty.

Fortunately there is available a stenographic record of the proceedings, both on May 19th and May 21st. That record discloses that when Colonna's counsel, in his presence, stated to Judge Meaney that "He pleads guilty", the following colloquy then took place:

"Judge Meaney: Are you Colonna, the defendant?

"The Defendant: Yes, sir.

"Judge Meaney: Do you understand the pleas?

"The Defendant: Yes, I do.

"Judge Meaney: The pleas of not guilty heretofore entered may be withdrawn and the plea of guilty may be accepted to indictments 1200-c and 1218-c."

The record of the proceedings on May 21st discloses that in moving to withdraw his pleas of guilty Colonna's counsel stated to the court: "I pleaded Colonna guilty" and again "I insisted on his pleading guilty, let's put it that way" while Colonna himself stated: "At the time of pleading I strenuously objected. * * * I am absolutely innocent as charged, but I pleaded guilty to the charge upon advice of counsel. * * *" While Colonna first told the court that he did not "know" the penalties for the crimes to which he pleaded and that he had only since pleading learned "* * * it entails probably a severe sentence.", he...