United States v. Davis, 20619.
Decision Date | 26 March 1971 |
Docket Number | No. 20619.,20619. |
Citation | 439 F.2d 325 |
Parties | UNITED STATES of America, Appellee, v. Richard Lee DAVIS, Appellant. |
Court | U.S. Court of Appeals — Eighth Circuit |
Richard A. Dier, U. S. Atty., John A. Gale, Asst. U. S. Atty., Omaha, Neb., for appellee.
Richard Lee Davis, pro se.
Before VOGEL and ROSS, Circuit Judges, and STEPHENSON, Chief District Judge.
Appellant's motion pursuant to 28 U. S.C.A. § 2255 seeks to set aside his conviction which is based upon a plea of guilty to one count of an indictment charging him with bank robbery. Appellant contends that the plea was induced by fear and was not voluntary because the District Court allegedly erred in explaining to him the punishment he could receive upon conviction as to each count. The court below held this contention to be without merit and refused to order an evidentiary hearing.1 We affirm.
The indictment charging appellant was in three counts: Count I charged a violation of 18 U.S.C.A. § 2113(a); Count II charged a violation of 18 U.S.C.A. § 2113(b); and Count III charged a violation of 18 U.S.C.A. § 2113(d). While each of these statutory sections states separate penalties, simultaneous convictions under two of these provisions cannot result in pyramided or consecutive sentences. The lesser offense merges into the greater offense for the purpose of sentencing. Prince v. United States, 1957, 352 U.S. 322, 77 S. Ct. 403, 1 L.Ed.2d 370.
The essence of appellant's claim is that at a hearing on arraignment in the District Court the presiding judge wrongly indicated that separate sentences on each count could be made to run consecutively. The fear of this possibility, appellant argues, was unlawful coercion and induced him to plead guilty to Count I of the indictment. He was sentenced to fifteen years although the correct maximum allowable term was twenty years.2
The arraigning court's statements were possibly ambiguous. The Federal Rule of Criminal Procedure dealing with guilty pleas, Rule 11, as it now stands and as interpreted in McCarthy v. United States, 1969, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418, is not applicable to this case. Halliday v. United States, 1969, 394 U.S. 831, 89 S. Ct. 1498, 23 L.Ed.2d 16. At the time of appellant's plea the rule provided:
* * *"
Under this rule, which controls this case, we must determine whether or not the appellant had an understanding of the nature of the charges against him and entered his plea voluntarily. In doing so we may examine the total circumstances of the hearing and all information provided to the appellant from whatever source. Bongiorno v. United States, 8 Cir., 1970, 424 F.2d 373, 374.
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