Verdon v. United States, 16828.

• Decision Date: 08 December 1961
• Docket Number: No. 16828.,16828.
• Citation: 296 F.2d 549
• Parties: Duane A. VERDON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

296 F.2d 549 (1961)

Duane A. VERDON, Appellant, v. UNITED STATES of America, Appellee.

No. 16828.

United States Court of Appeals Eighth Circuit.

November 13, 1961.

Rehearing Denied December 8, 1961.

Duane A. Verdon, pro se.

Miles W. Lord, U. S. Atty., Minneapolis, Minn., and Patrick J. Foley, Asst. U. S. Atty., Minneapolis, Minn., on the brief, for appellee.

Before VOGEL, VAN OOSTERHOUT and BLACKMUN, Circuit Judges.

BLACKMUN, Circuit Judge.

This is an appeal in forma pauperis from a trial court's order denying a petition, filed under 28 U.S.C. § 2255, to vacate a sentence.

The petitioner, Duane A. Verdon, in August 1960 was serving a 5-year sentence at the Federal Correctional Institution, Sandstone, Minnesota. The sentence had been imposed in 1958 by the United States District Court for the District of Kansas upon Verdon's conviction of a Dyer Act violation. On August 3, while on a work detail, Verdon disappeared. He was arrested near Walker, Minnesota, on August 19 and was returned two days later to Sandstone. He was then indicted for escape, in violation of 18 U.S.C. § 751,¹ from the institution and from the custody of the Attorney General and of the Sandstone warden as the former's authorized representative. Prior to arraignment on November 10 the district court offered Verdon the assistance of counsel. Verdon refused this and also waived the reading of the indictment. He then pleaded guilty and the court referred the case for presentence investigation.²

Verdon was next before the court on December 6. The court at that time again offered the assistance of counsel and again Verdon refused. After examination, a 3-year sentence was imposed for the escape; this was to begin upon the expiration of the sentence Verdon was presently serving.³ No objection, oral or formal, to the sentence was made until the present proceeding was instituted in May 1961.

Verdon's § 2255 petition was denied by the trial court with a memorandum which included the record of the December 6 hearing, set forth in footnote 3, and which concluded with the following:

"* * * The instant case exemplifies a disappointed and experienced violator of law as his prior record will disclose. He seeks to portray himself as grossly ignorant and that he should be given the privilege of choosing the sentence to be imposed and the keeper of his freedom.

"Petitioner\'s attempt to conjure up factual grounds appears to be based on fallacy. Petitioner\'s complaint of ignorance as to his constitutional rights and coercion is not supported by the record."

The district court later denied Verdon's motion to appeal in forma pauperis on the ground that the petition was not filed in good faith and was without merit. This court granted leave to appeal.

The real issue, as this court has characterized another not dissimilar case, Colbert v. United States, 8 Cir., 1953, 202 F.2d 793, 794, cert. den. 346 U.S. 879, 74 S.Ct. 132, 98 L.Ed. 386, is whether Verdon did "advisedly, voluntarily, and understandingly enter his plea of guilty to that offense?" The gist of Verdon's argument lies in the following:

a. The failure of the district court to inquire, prior to its acceptance of the plea of guilty, as to the reasons for the plea and as to the voluntary character of the plea. Specifically, Verdon states that he pleaded guilty because of his concern over a continuation of his "segregation status" at Sandstone to which he had been subjected from August 21, 1960, when he was returned there, to November 10, when he was arraigned.

b. The failure of the district court, prior to its acceptance of the plea of guilty, to advise Verdon of the exact consequences, by way of possible punishment, of the plea.

c. Verdon's own misapprehension as to possible punishment in that he thought the maximum sentence he could receive on the escape charge was one year rather than 5 years. He argues that a court must concede that a man without counsel "would not be eager to enter a guilty plea to an offense that was punishable by a prison term of five (5) years". He does not claim that his confusion, if any, centered on the one year imprisonment limitation specified in the last phrase of 18 U.S.C. § 751, supra, footnote 1. He asserts, generally, that the arraignment and the sentencing hearings violated Rule 11, F.R.Crim.P.⁴

1. The alleged involuntary character of the plea. The records of the arraignment and of the sentencing hearing which are set forth in full in footnotes 2 and 3 above, convince us that there is no substance to Verdon's argument as to the involuntary character of his plea. The trial court was considerate and careful in its endeavors to advise Verdon of his right to counsel and as to the protective measures which the court offered him and which were his for the asking. Verdon, however, would have none of this and peremptorily brushed these offers aside.

Verdon's claim here amounts to nothing more than a self-serving statement that he pleaded guilty because he wished to avoid a return to what he called segregation status at Sandstone. Dissatisfaction with a penal condition, brought about by one's own conduct, and a hope that by a guilty plea a different kind of incarceration might be achieved are scarcely factors of involuntariness in a plea. They smack instead only of a desire to achieve as soon as possible a new condition of servitude.

2. Misapprehension of punishment. Verdon's second and third points, relative to the district court's failure to inform him in so many words as to the range of punishment specified in the escape statute and his claim of misapprehension as to his possible punishment on a plea of guilty, may be considered together. There are expressions in the cases that an awareness of the range of punishment is an element in the protection to be afforded under the Sixth Amendment's guaranty of the assistance of counsel and in connection with a defendant's adequate waiver thereof. Mr. Justice Black, speaking for 4 members of the court in Von Moltke v. Gillies, 1948, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309, said:

"To be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter. A judge can make certain that an accused\'s professed waiver of counsel is understandingly and wisely made only from a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered." (Emphasis supplied.)

See also Snell v. United States, 10 Cir., 1949, 174 F.2d 580, 582 and Cherrie v. United States, 10 Cir., 1949, 179 F.2d 94, 96. Compare Stidham v. United States, 8 Cir., 1948, 170 F.2d 294, 295, and Davis v. United States, 8 Cir., 1955, 226 F.2d 834, 838-9, cert. den. 351 U.S. 912, 76 S. Ct. 702, 100 L.Ed. 1446. On the other hand, this and other courts have said that a defendant who enters a plea of guilty has no absolute right to withdraw that plea. Friedman v. United States, 8 Cir., 1952, 200 F.2d 690, 696, cert. den. 345 U.S. 926, 73 S.Ct. 784, 97 L.Ed. 1357; United States v. Panebianco, 2 Cir., 1953, 208 F.2d 238, 239. And the fact that an accused who pleaded guilty received a sentence more severe than he anticipated is not a ground for vacating or reducing the sentence. Sweeden v. United States, 8 Cir., 1954, 209 F.2d 524, 527; Friedman v. United States, 8 Cir., supra, p. 696 of 200 F.2d; Stidham v. United States, 8 Cir., supra, p. 298 of 170 F.2d; United States v. Page, 2 Cir., 1956, 229 F.2d 91, 92; United States v. McClellan, D.C.W.D. Pa., 1960, 194 F.Supp. 128, 130, affirmed, 3 Cir., 1961, 289 F.2d 319.

It is to be noted, however, that awareness of the possible range of sentence, when mentioned, is named as only one of several factors involved. It is not a factor which, alone and bare, demands in its absence a vacation of a sentence. The circumstances of each case are important.

Although Verdon claims to possess only a sixth grade education, the records here definitely reveal an awareness on his part of his status and predicament, a positive conviction as to what he wanted to do, a resentment at what he recognized and regarded as more lenient penalties imposed upon other Dyer Act violators, and an admission of his having walked away from the work detail. While a specific explanatory statement by the court, before accepting the plea, that the penalty under this particular charge was a fine of not more than $5,000 or imprisonment for not more than 5 years, or both, would have eliminated the presence of this point on this appeal, we are convinced that neither the prescription of Rule 11 nor Verdon's constitutional or other rights have been violated.

What is involved here is an escape from a federal correctional institution and from custody. Verdon, at age 36, has had extensive past experience with the criminal law. He is not a first time offender. He is a convicted felon. He necessarily knows sentencing procedures. He has served, among others, a California sentence of up to 10 years for escape and grand theft, so that even an escape charge is not new to him. His claim of innocence as to the severity of the penalty involved does not command credibility. Verdon had "been around" and certainly must have had an awareness of the serious consequences of his plea. He is, as this court observed in Colbert v. United States, supra, p. 793 of 202 F.2d, also involving an escape charge, "a mature man with a formidable criminal record". His real and obvious complaint is basically directed to the length of his sentence. That sentence, however, is within the range specified by the statute. This case is to be classified with those others, not uncommon, which involve nothing more than a "disappointed expectation when a plea of guilt is not productive of the light...