Appeal from the United States District Court for the Eastern District of Wisconsin - No. 72-Cr-31 MYRON L. GORDON, Judge.
Hastings, Senior Circuit Judge, Sprecher and Bauer, Circuit Judges.
The two major issues presented by this appeal are whether this circuit's requirement that persons subject to the Youth Corrections Act be prosecuted by indictment is retroactive in its application and whether due process requires that the express finding by the trial court that a defendant would not benefit from treatment under that Act be accompanied by supporting reasons.
The defendant, Douglas Raymond Dorszynski, pleaded guilty on February 14, 1972 to unlawful possession of 1000 tablets of lysergic acid diethylamide (LSD) in violation of 21 U.S.C. § 844(a) and 18 U.S.C. § 2. He was sentenced to the custody of the Attorney General for a period of one year, 90 days of which were to be served in a jail-type institution. The execution of the remainder of the commitment was stayed and the defendant was placed on probation for a period of two years following his jail sentence.
While serving his sentence, the defendant moved for release from custody pursuant to 28 U.S.C. § 2255, alleging (1) that FED. R. CRIM. P. 11 was not observed because defendant was not advised that he was waiving his privilege against self-incrimination, (2) that he was also not advised that he was subjecting himself to incarceration for a period of six years by entering a plea of guilty pursuant to the Federal Youth Corrections Act, 18 U.S.C. §§ 5005-5026, and (3) that the court made no finding supported by reasons that the defendant would not derive benefit from treatment pursuant to 18 U.S.C. § 5010(b) or (c).
At the time of the hearing on the motion the defendant had completed his jail sentence and was on probation. Believing that the defendant had testified falsely at the hearing, the trial judge terminated the defendant's probation and committed him to custody.
Upon appeal to this court, we held that the defendant understood that he was waiving his right against self-incrimination in accordance with Rule 11 when he pleaded guilty; that inasmuch as defendant's trial counsel had raised the possibility of sentencing defendant as a youth offender, the trial judge was not required to make an explicit finding that defendant would not derive benefit from treatment under the Youth Corrections Act; and that the trial judge erred in terminating defendant's probation upon a summary determination in a post-conviction proceeding that the defendant had testified falsely. United States v. Dorszynski, 484 F.2d 849 (1973).
The Supreme Court granted certiorari, 414 U.S. 1091, 94 S. Ct. 721, 38 L. Ed. 2d 548 (1973). Mr. Chief Justice Burger (joined by Justices White, Blackmun, Powell and Rehnquist) held that "while an express finding of no benefit must be made [under the Federal Youth Corrections Act] on the record, the Act does not require that it be accompanied by supporting reasons." Dorszynski v. United States, 418 U.S. 424, 425-26, 41 L. Ed. 2d 855, 94 S. Ct. 3042 (1974). The Chief Justice added in a footnote:
Petitioner contends he was denied due process because he was deprived of his claimed right to be sentenced under the Act, without a reasoned explanation on the record for the asserted deprivation. We need not address this contention, for it was not raised before the District Court, the Court of Appeals, or in the questions presented in the petition for certiorari.
Id. at 418 U.S. 431-32, n.7.
Upon remand the trial court affirmatively made the express finding that the defendant would not benefit from treatment under section 5010(b) or (c) of the Youth Corrections Act, but giving as the only reason for the finding "the severe nature of his misconduct." Although the defendant withdrew his request for a resentencing proceeding, the court concluded that it was obliged to re-sentence and "the court sentences the defendant precisely in the manner in which he was previously sentenced."
The defendant appealed to this court for the second time, contending (1) that the trial court should have withdrawn from the case and transferred it to another judge; (2) that the defendant should have been allowed to withdraw his plea of guilty because he was not indicted by a grand jury; (3) that the failure of the trial court to advise the defendant prior to accepting his plea of guilty that he faced a maximum penalty of six years under the Youth Corrections Act constituted reversible error; and (4) that the defendant's right to due process of law was ...