Appeal from the United States District Court for the Eastern District of Illinois. No. CR-72-40-D HENRY S. WISE, Judge.
Swygert, Chief Judge, Castle, Senior Circuit Judge, and Sprecher, Circuit Judge.
Although the conviction involved here is affirmed, we are using this appeal to attempt to forestall unnecessary appeals and retrials in the future based upon alleged plea bargaining not shown of record.
Defendant Jose Moody was indicted for possession, with intent to distribute, of approximately 295 grams of heroin in violation of 21 U.S.C. §§ 841(a) (1) and 841(b) (1) (A).
On August 28, 1972, he appeared with retained counsel and pleaded not guilty. On September 13, he reappeared with the same retained counsel and withdrew his not guilty plea and pleaded guilty. At that time the court addressed the defendant personally and attempted to determine whether the plea was made voluntarily with understanding of the nature of the charge and the consequences of the plea. Rule 11, FED. R. CRIM. P. Defendant was sentenced on October 10, 1972 to five years' imprisonment and, in addition, to a special parole term of three years.
On January 3, 1973, defendant submitted pro se his sworn petition for reduction of sentence in which he claimed that "petitioner's attorney . . . used his position to coerce the guilty plea by offering a ninety day jail sentence with five years probation to follow." The petition was denied on January 11, the court upon review of the record finding that the plea of guilty was entered freely and voluntarily by the defendant.
On February 8, 1973, defendant submitted pro se his signed but not sworn motion to withdraw his guilty plea and to vacate the illegal sentence in which he alleged that his retained counsel had told him "that he has made a deal with the U.S. Attorney through a plea bargaining action" whereby defendant "would receive not over a nine (9) month sentence of imprisonment and the remaining part of his sentence on probation." He further alleged that his counsel had instructed him as to the answers to be given to the sentencing judge and that "the judge was in on the deal." The motion was denied on March 26, 1973, the court upon another review of the record finding that defendant "knew and understood the charges against him, and the consequences of a plea of guilty," and that defendant "was represented by competent counsel . . . of his own choosing, and no dissatisfaction was expressed" by him "until approximately four months after judgment was entered."
In permitting defendant to proceed in forma pauperis in this court, Judge Stevens on September 7, 1973 raised the question: "Would it be appropriate to require the petitioner, in order to obtain an evidentiary hearing, to support his general allegations by either (a) affidavit of the lawyer who represented him at the arraignment, or (b) an affidavit of his own containing sufficient specific factual detail to indicate that there is probable merit to his claim."
The defendant appealed on the grounds that (1) the district court failed to address the defendant personally, (2) the record does not show that defendant voluntarily and understandingly entered the plea of guilty, and (3) the defendant was entitled to an evidentiary hearing upon his allegation that his guilty plea was induced by his retained attorney's promise of a lighter sentence.
Prior to accepting defendant's guilty plea on September 13, 1972, the district court addressed twenty-one questions to the defendant personally, covering the maximum possible penalty, the defendant's right to plead not guilty and right to a jury trial, whether the defendant desired to plead guilty and to waive a jury trial, whether he was coerced or given promises or threatened or intimidated, whether defendant was physically or mentally ill, addicted to narcotics or alcohol, and whether he knew the charges against him and was guilty of those charges. Defendant's challenge to the completeness of these Rule 11 inquiries went to the requirement that the judge satisfy himself that "there is a factual basis for the plea." McCarthy v. United States, 394 U.S. 459, 467, 22 L. Ed. 2d 418, 89 S. Ct. 1166 (1969).
On September 13, the court asked the defendant personally whether he knew the charge against him and whether he was guilty of that offense. Two weeks earlier when he had pleaded not guilty, the charge was stated in detail to him by the court and by the prosecutor. Prior to sentencing on October 10, when he still had an opportunity to withdraw his guilty plea, the court asked the following questions of the defendant relative to the factual basis for the plea:
THE COURT: You did have this heroin in your possession, is that correct?
THE COURT: How much did you have?
THE DEFENDANT: About twelve ounces.
THE COURT: What would twelve ounces of ...