Swygert, Fairchild and Kerner, Circuit Judges.
Defendant-appellant Wright appeals from a finding of guilty, without jury, of violation of Title 18 U.S.C. § 2113(a), (b), (d) bank robbery, and a sentence of ten years on counts 1 and 2, fifteen years on count 3 and five years on count 4, the sentences to be served concurrently. Wright, one of the six defendants, was charged with four counts of armed robbery of the Land of Lincoln Bank, Springfield, Illinois, and with conspiracy to rob the bank on July 14, 1967.
In the presence of counsel of his own selection, Wright pleaded not guilty on November 14, 1967. On December 5, 1967, arguments on motions attacking the indictment and for discovery were heard at which Wright was represented by counsel. Again on December 13, 1967, Wright's motion to suppress evidence was heard and testimony of government witnesses was taken as to evidence of probable cause to arrest Wright for the armed robbery. Defendant and his counsel were present and the testimony of Mrs. Wright, defendant's wife, was also taken. An additional hearing was held on January 31, 1968, concerning certain motions for discovery, and Wright was represented by counsel.
On February 1, 1968, Wright being present in court, with his counsel, withdrew his plea of not guilty as to counts 1, 2, 3 and 4. The Court informed defendant of the "possible penalties" and a colloquy with counsel followed in which Wright's counsel informed the Court that Wright had discussed the matter with him. There followed a three-way discussion, the prosecutor stating the counts and the possible maximum sentences, which were repeated by the Judge, and also inquiring of Wright whether he understood. Wright responded affirmatively. The Judge asked whether the plea was of his "own free volition," and the response was "Yes." The guilty plea was accepted. The prosecutor reviewed for the Court what the evidence would show, through the testimony of another defendant, that Wright participated in the robbery, used a gun and shared in the loot.
On February 19, 1968, while Wright and his counsel were present in open court, Judge Poos indicated he had received a letter from Wright which said in part: "I desire to withdraw my plea of guilty and enter a plea of not guilty. This decision is fully my own, and without knowledge of my attorney, Robert G. Heckenkamp."
Judge Poos reviewed all of the proceedings that had taken place. Wright stated he had witnesses "to prove I wasn't within 150 miles of this vicinity at the time. * * *" and that in light of the possible maximum sentence at his age, "I would die in the penitentiary, so, therefore, to take the easy way out, I decided to enter a plea of guilty, a fifteen year sentence. * * *"
The District Court denied the letter motion and entered a sentence of fifteen years in the custody of the Attorney General. Motion for appeal in forma pauperis was filed and allowed and counsel was appointed by this Court.
Wright alleges as errors: denial of effective assistance of counsel at the time of the hearing on the withdrawal of the guilty plea; abuse of the Court's discretion in denying his motion to withdraw the guilty plea and that defendant acted without understanding the charges against him.
During the entire proceedings before the District Court, Wright was represented by counsel of his own choosing. There is no evidence or inference upon which this Court may draw to find that counsel was inexperienced or incompetent. The transcript of proceedings before us of all motions and pleas of November 14, December 5 and 13, 1967, January 31, February 1 and 19, 1968, indicate the presence and participation of Wright's counsel on his behalf. No question of impropriety or violation of any constitutional right is alleged except as to the February 19 hearing on defendant's motion to withdraw his previous guilty plea.
The transcript of those proceedings shows that Wright indicated his understanding of his plea and the possible severity of sentences and voluntarily entered it. There is no question of promises or agreements involved, nor conferences concerning pleas, sentencing or probation being held.
It is true that Attorney Heckenkamp was taken by surprise because of the letter of his client and stated he did not have the "opportunity to visit Mr. Wright since the completion of that trial. I have not been over to talk to him, other than just a moment this morning." The decision to write the letter to Judge Poos was solely that of defendant, without any copy of the letter or any notice to Heckenkamp, and Wright so stated to the Court.
It is well settled that defendants are entitled to counsel at all crucial stages of a criminal proceeding. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799, 93 A.L.R.2d 733 (1963). There is no question that counsel is essential at time of sentencing. Mempa v. Rhay, 389 U.S. 128, 88 S. Ct. 254, 19 L. Ed. 2d 336 (1967).
Defendant contends the Court erred in not appointing new counsel before denying the withdrawal of his plea of guilty. Attorney Heckenkamp was taken by surprise with the request for ...