United States v. Guy
| Citation | 466 F. Supp. 1001 |
| Decision Date | 23 February 1978 |
| Docket Number | Crim. No. 77-86. |
| Parties | UNITED STATES of America v. Jeffrey GUY. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
J. Douglas McCullough, Asst. U. S. Atty., Philadelphia, Pa., for plaintiff.
Thomas H. A. Gallagher, Philadelphia, Pa., for defendant.
Defendant Jeffrey Guy has moved to vacate his guilty plea. He contends that his plea was not "knowing and voluntary" because at the time he entered the plea I failed to explain to him the meaning of special parole. He further contends that had he understood the meaning of special parole, he would not have pleaded guilty. I find that defendant's position has merit, and accordingly will grant his motion.
Defendant pleaded guilty to one count of conspiracy to distribute heroin on May 24, 1977.1 On June 28, 1977, I sentenced defendant to three years imprisonment, to be followed by three years of special parole pursuant to 21 U.S.C. § 841(b).2 On October 3, 1977, defendant moved pro se to vacate his guilty plea. I appointed counsel on October 21, 1977, offered defendant and the government an opportunity to present evidence at a hearing on December 29, 1977, and heard oral argument on the same day.3
At the guilty plea proceeding pursuant to Fed.R.Crim.P. 11, I attempted to determine that defendant's plea was knowing and voluntary. I advised defendant of the potential sentence he faced in the following manner:
Defendant contends that my allusion to special parole was inadequate in three respects: first, that I failed to explain that the potential term of special parole was a minimum of three years, with an indefinite maximum; second, that I failed to state the imposition of special parole was mandatory, if I sentenced defendant to any term of imprisonment; and third, that I did not explain that if defendant violated his special parole, he could be reincarcerated for the full term of the parole, rather than for the period of parole remaining at the time of the violation.4 Defendant has filed a sworn affidavit stating that he did not understand the meaning of special parole at the time he pleaded guilty. The affidavit further states that defendant is not guilty of the charge to which he pleaded and that he would not have pleaded guilty had he understood the full consequences of his plea. The government has not contested these facts, contending instead that defendant is entitled to no relief as a matter of law.
The failure of district courts to inform criminal defendants of the existence of a minimum mandatory special parole term has brought about much litigation. Through June, 1975, most courts which considered the question at issue here established a per se rule; where a defendant was not properly advised of the meaning of special parole, he was entitled to plead anew. See, e. g., Ferguson v. United States, 513 F.2d 1011 (2d Cir. 1975); United States v. Wolak, 510 F.2d 164 (6th Cir. 1975); Roberts v. United States, 491 F.2d 1236 (3d Cir. 1974); United States v. Richardson, 483 F.2d 516 (8th Cir. 1973). Cf. contra, Bell v. United States, 521 F.2d 713 (4th Cir. 1975), cert. denied, 424 U.S. 918, 96 S.Ct. 1121, 47 L.Ed.2d 324 (1976); Gore v. United States, No. 75-1447 (4th Cir. September 12, 1975).
On June 10, 1975, the Supreme Court decided Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 2304, 41 L.Ed.2d 109 (1975). By way of dicta,5 the Court stated:
This is not to say, however, that every asserted error of law can be raised on a § 2255 motion. In Hill v. United States, 368 U.S. 424, 429, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), for example, we held that `collateral relief is not available when all that is shown is a failure to comply with the formal requirements' of a rule of criminal procedure in the absence of any indication that the defendant was prejudiced by the asserted technical error. We suggested that the appropriate inquiry was whether the claimed error of law was `a fundamental defect which inherently results in a complete miscarriage of justice,' and whether `it . . . presents exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.'
Several courts of appeals have determined that this language undermines the vitality of the per se rule in the special parole situation. As a result, these courts have required a showing that "manifest injustice" has occurred, that the Rule 11 proceeding under attack constituted an "inherent miscarriage of justice", or that a defendant was "substantially prejudiced" before a guilty plea will be vacated pursuant to 28 U.S.C. § 2255 or Fed.R.Crim.P. 32(d). See, e. g., Del Vecchio v. United States, 556 F.2d 106 (2d Cir. 1977); United States v. Hamilton, 553 F.2d 63 (10th Cir. 1977) (appeal pending); United States v. Watson, 179 U.S.App.D.C. 103, 548 F.2d 1058 (1977); McRae v. United States, 540 F.2d 943 (8th Cir. 1976), cert. denied 429 U.S. 1045, 97 S.Ct. 750, 50 L.Ed.2d 759 (1977); Bachner v. United States, 517 F.2d 589 (7th Cir. 1975). See also, Timmreck v. United States, 423 F.Supp. 537 (E.D.Mich.1976) (appeal pending). Several other courts, however, have decided the special parole issue subsequent to Davis and have maintained the per se rule. These courts have apparently held, without discussion, that the distinguishable facts of Davis render the case inapplicable. See, e. g., Bunker v. Wise, 550 F.2d 1155 (9th Cir. 1977); United States v. Cunningham, 529 F.2d 884 (6th Cir. 1976) (dicta); United States v. Yazbeck, 524 F.2d 641 (1st Cir. 1975). Cf. United States v. Watson, supra 179 U.S.App.D.C. at 108, 548 F.2d at 1063 ().
Thus, in confronting the issues raised in this motion, I am faced with a substantial split of authority. Although there is room for dispute, I believe that prior to Davis, Roberts v. United States, supra, would have disposed of the motion favorably to the defendant. See § IV(B), infra. In this opinion, I shall examine the more recent cases in order to determine whether the Roberts rule should be kept alive or, if not, what rule should take its place.
Fed.R.Crim.P. 11 provides in pertinent part:
Defendant has challenged the validity of his plea by motion under 28 U.S.C. § 2255, contending that my incomplete explanation of special parole renders the plea "subject to collateral attack". See, e. g., Bunker v. Wise, 550 F.2d 1155 (9th Cir. 1977); United States v. Wolak, 510 F.2d 164 (6th Cir. 1975).
Fed.R.Crim.P. 32(d) provides a specific procedure for challenging guilty pleas after a sentence has been imposed:
. . . to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.
If a guilty plea can be challenged under 28 U.S.C. § 2255, I doubt that the standard for determining its validity differs from the manifest injustice standard of the criminal rule. United States v. Hamilton, 553 F.2d 63, 67 (10th Cir. 1977) (appeal pending); United States v. Harris, 534 F.2d 141 (9th Cir. 1976). Cf. Del Vecchio v. United States, 556 F.2d 106, 111 (2d Cir. 1977). However, in view of the specific remedy provided in Rule 32(d), I believe that Congress intended claims such as the one in the case at bar to be adjudicated within that rule's framework. Accordingly, I shall deem defendant's motion as one brought pursuant to Rule 32(d). United States v. Watson, 179 U.S.App.D.C. 103, 548 F.2d 1058 (1977). Cf. Meyer v. United States, 424 F.2d 1181 (8th Cir.), cert. denied, 400 U.S. 853, 91 S.Ct. 92, 27 L.Ed.2d 91 (1970).6
In Roberts, the sentencing court made no mention whatsoever of special parole at the Rule 11 proceeding. See also, United States v. Harris, 534 F.2d 141 (9th Cir. 1976); Ferguson v. United States, 513 F.2d 1011 (2d Cir. 1975). The Court of Appeals for the Third Circuit held that this error alone entitled the defendant to withdraw his plea. Unlike the district judge in Roberts, I mentioned special parole, but failed to explain it. I did not state that (1) there was a minimum term;7 (2) the minimum term was mandatory; or (3) no jailtime credit would be given for undergoing a successful period of special parole before a violation. The government asserts that my allusion to special parole should have put the defendant on notice, and thus no violation of Rule 11 occurred. I disagree.
In Rule 11 proceedings, my colleagues on the district bench and I try our best to put criminal defendants at ease. Nevertheless, an appearance in court may intimidate and frighten a defendant. Therefore, in accepting a guilty plea a judge has the obligation to be explicit in explaining important matters such as the length and nature of a defendant's possible sentence. Fed.R. Crim.P. 11(c)(1). See also Berry v. United States, 412 F.2d 189 (3d Cir. 1969). The defendant must be fully informed in clear and simple language about the potential punishment he may receive at sentencing. The language of the rule as well as cas...
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