Swygert, Chief Judge, Pell, Circuit Judge, and Campbell, Senior District Judge.*fn1
On May 9, 1968, defendant, David Lee Zezoff, was charged in a three count indictment, with uttering and publishing checks drawn upon the Treasurer of the United States with forged endorsements, with knowledge of the forgery, in violation of § 495, Title 18, United States Code. Each count involved a different check. The three counts involved transactions allegedly at two different places.
Zezoff appeared for arraignment before the district court on May 22, 1968, at which time the assistant United States attorney advised the court, in the defendant's presence, that the indictment was in three counts with each count carrying a penalty of $1000 and ten years. Interrogation of the defendant developed the necessity for court-appointed counsel and the court appointed a member of the local bar who thereafter at all material times here involved did represent Zezoff. At the final arraignment on the same day, the assistant United States attorney, prior to the entering of a plea, again in the presence of Zezoff, stated that the charge was in three counts carrying a maximum penalty of $1000 and ten years. Following this statement, the district judge inquired of Zezoff if he understood that. The defendant replied in the affirmative. Thereafter, a not guilty plea was entered.
On February 18, 1969, trial having been set for February 20, 1969, the defendant, his counsel, and the assistant United States attorney appeared before the district judge, at which time Zezoff's counsel indicated that the defendant was present for the purpose of changing his plea from not guilty to guilty as to count I only. At this juncture the assistant United States attorney apprised the defendant that on each of the three counts he faced a possible penalty of $1000 fine and/or ten years in jail and he understood that Zezoff's counsel had discussed that [the penalty] with Zezoff and had also discussed the matter of guilt with him.
The plea of not guilty was withdrawn and the court personally inquired of Zezoff whether he understood what the penalty was and whether knowing the penalty he desired to withdraw his plea of not guilty and enter a plea of guilty. To these inquiries, the defendant replied in the affirmative. Further interrogation by the court developed that Zezoff had not been compelled by anybody to do as he did, that he did it by himself freely and voluntarily without duress, that he was aware that he had a right to have his case tried before a jury and that he persisted in pleading guilty to count I of the indictment.
The court then accepted the plea of guilty following which the assistant United States attorney referred to witnesses who had identified Zezoff as having cashed the check involved in count I. On the entering of a guilty plea the government moved to dismiss counts II and III of the indictment, which counts were dismissed.
Zezoff and his counsel next appeared before the court on May 27, 1969, at which time the court stated to Zezoff that after studying the probation report, he was going to commit the defendant to the custody of the Attorney General of the United States, under § 4208(b), Title 18, United States Code, for a period of ten years. The court further stated the defendant would be sent to an institution for study for a period of ninety days, at which time he would be returned to the court and the sentence would be corrected to suit the situation in accordance with the recommendation of the study. The court then inquired as to whether there was any reason as to why the sentence should not be pronounced immediately, to which Zezoff, inter alia, replied that he admitted his guilt.
On September 25, 1969, Zezoff and his counsel again appeared before the court, at which time the district judge referred to having received the study and recommendation and was reducing the sentence to three years. The United States attorney interjected that since the May 27 sentence was a tentative one the defendant should have the opportunity to offer anything in mitigation before sentence was pronounced. The court accordingly set the sentence aside, following which there was an extended colloquy between the court, Zezoff, and his counsel, during which Zezoff contended that it was his understanding that he would only have to serve the three months. Zezoff admitted that the court had told him that the three months was for examination and that it would then be up to the court to either vacate the sentence, impose the sentence, or reduce the sentence. Zezoff further admitted that the court had on May 27, 1969 sentenced him to ten years. Zezoff's counsel stated that he had explained to Zezoff that he was "down there for ninety days of observation during which time the proper authorities would evaluate him, determine whether or not he was a fit subject for probation." Zezoff again claimed he had no knowledge of the ten year sentence. Subsequent discussion, however, further reflected that he was aware that the court had imposed on May 27, 1969 a sentence of ten years.
Zezoff's counsel stated he did not know what Zezoff was talking about.
The court then entered sentence of three years, that the period of imprisonment theretofore imposed be reduced to three years including time already served and that the defendant would become eligible for parole at such time as the Board of Parole might determine pursuant to § 4208(a) (2), Title 18, United States Code.
During none of the colloquy did Zezoff deny guilt of count I of the indictment, his only contention being that he did not understand there would be any sentence beyond the three month study period as provided for in § 4208(b), Title 18, United States Code. The record is silent as to whether there was any agreement or understanding with regard to the Government's moving to dismiss counts II and III in the event of a guilty plea as to count I.
Zezoff inquired about an appeal and the court, although recognizing that the dispute between Zezoff and his counsel would probably terminate the counsel's services, nevertheless instructed the counsel to file a notice of appeal. This was done.
It is probably significant at this point to observe that, while Zezoff claimed that his understanding (and he was consistently vague) was that he had already served ninety days, there was never any reference whatsoever to the ninety days or three months at the time the not guilty plea was withdrawn and the guilty plea entered on February 18, 1969. The first reference to the so-called study period was more than three ...