Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 81-CR-00001 -- Robert A. Grant, Judge.
Before Swygert, Senior Circuit Judge, Cudahy, Circuit Judge, and Shadur, District Judge.*fn*
Rodney F. Delegal ("Delegal") appeals from his conviction for bank robbery and interstate transportation of a stolen vehicle. We reverse that conviction because the district court erred in "withdrawing"*fn1 Delegal's guilty plea to the first charge (under the plea agreement the government was committed to move for dismissal of the second charge at the time of sentencing).*fn2
On January 6, 1981*fn3 Delegal was charged in a two-count indictment with (1) bank robbery with jeopardy of life in violation of 18 U.S.C. §§ 2113(a) and (d) and (2) interstate transportation of a stolen vehicle in violation of 18 U.S.C. § 2312. Delegal was arraigned January 8 and entered a not guilty plea. Trial was set for February 23.
On February 13 Delegal's court-appointed counsel filed a motion for change of plea. At the February 19 hearing on that motion a plea agreement signed by the government, Delegal and his counsel was tendered to the district court. Its substantive terms were simple:
"(a) The defendant will plead GUILTY to COUNT I of the indictment.
"(b) The United States will dismiss COUNT II of the indictment at the time of the sentencing.
"(c) The United States will remain silent at the time of sentencing."
In addition the agreement stated that "no promises have been made to (defendant) other than those contained in this petition." In accordance with Fed.R.Crim.P. ("Rule") 11, the district court determined that (1) Delegal fully understood the plea and had entered into it voluntarily and (2) there was a sufficient factual basis for the plea. Accordingly the district court accepted the plea as to Count I and set the matter for sentencing.
Four days later (on February 23) Delegal's attorney wrote the Assistant United States Attorney handling the case about the possibility of Delegal serving federal time concurrently with time due under a prior state court conviction in Florida. On February 27 government counsel responded:
When you called and informed me that Mr. Delegal would take the offer that is set out in the petition to enter a change of plea, you asked me about the possibility of your client doing any time in the Florida prisons. I indicated I did not know if that was possible and asked if that was a condition of the agreement. Your response was that it was not.
It appears from your letter that you consider a transfer to the State Prison System to be a condition of your client's plea and that it should have been in the petition. I also assume from your letter that your client believed that to be a part of the agreement.
On that assumption the government then filed a motion under Rule 11 requesting a further hearing on Delegal's plea.
On March 2 Delegal's attorney replied by letter to the Assistant United States Attorney that he did not consider the possibility of Delegal serving time in a Florida prison to be part of the plea agreement. Nonetheless the district court properly held a hearing March 9 to determine whether a part of the plea agreement had not been reflected in the written document. During that hearing the district court asked Delegal three times whether he thought any promise concerning serving time in Florida was a part of the plea agreement:
The Court: Mr. Delegal, we will hear from you whatever you want to present in regard to what we are discussing now.
Defendant: The only thing was, Your Honor, I thought that it was going to be left up to you whether or not I was transferred back to the State of Florida for the time I had. (Tr. 6)
The Court: Did you understand that there was a promise of a commitment from either the government or from this Court that any sentence you receive would be served in Florida, or served in Florida concurrently, that is at the same time, as your federal sentence? Am I making myself clear?
Let me restate it. Did you believe, when you entered into this plea agreement, that part of the deal, part of the package was that whatever time might be imposed upon you, the sentence of this Court would run at the ...