The opinion of the court was delivered by: ROSZKOWSKI
MEMORANDUM OPINION AND ORDER
STANLEY J. ROSZKOWSKI, UNITED STATES DISTRICT JUDGE
This action comes before the Court on defendant Brien L. Gray's motion to preclude the government's use of certain prior convictions for purposes of enhancement. For the reasons set forth in the opinion below, this Court finds two of the prior convictions to have been based on unconstitutional guilty pleas. Further, this Court grants defendant's motion to preclude the use of the two prior convictions for enhancement purposes and will sentence the defendant solely on the gun possession charge for which the defendant was found guilty before this Court.
A federal grand jury returned an indictment against Brien L. Gray on February 7, 1989 charging him with possession of a firearm in or affecting commerce after having been convicted of a felony, in violation of 18 U.S.C. § 1202(a)(1), Appendix II (repealed 1986).
Defendant's criminal trial commenced on October 2, 1989 and a jury verdict of guilty was returned on October 3, 1989.
The government has stated that it intends to seek enhancement of defendant's sentence pursuant to 18 U.S.C. App. § 1202(a)
based on four prior felony convictions under the laws of the State of Texas.
Defendant argues in his post-trial briefs as well as at oral argument before this Court that no enhancement ought to be allowed based on the fact that two of the convictions were based on guilty pleas which were not voluntary or knowing, and were therefore unconstitutional.
The record of conviction from Wichita County, Texas states that the defendant was indicted for burglary on January 14, 1965, and was brought before a judge, on February 18, 1966.
In the certified copies of the prior convictions, this Court takes notice of the following.
Government's Exhibit A contains the record of the 1966 burglary conviction in Wichita County, Texas. In that record of conviction, the papers indicate that the defendant was indicted for "unlawfully, by force, threats, and fraud, break and enter a house there situated and occupied and controlled by one Jack Moore." However, according to defendant's uncontroverted testimony of February 21, 1990, defendant has stated that the conduct which led to that particular conviction consisted of entering into a commercial building, specifically a drive-in restaurant. Therefore, the indictment appears to be factually inconsistent with defendant's testimony.
Second, and relating again to the 1966 burglary conviction, the problem with the factual accuracy of the indictment is compounded by the failure of the state trial court to elucidate from the State or the defendant, or set down on its own, the factual basis for the entry of the plea of guilty by the defendant. Government's Exhibit B contains the record of the 1967 conviction for burglary in Collin County, Texas. Defendant appeared on April 28, 1967 before the state court in Collin County, Texas for entry of a judgment and sentencing. All the papers relating to the 1967 burglary conviction refer to the "charge contained in the indictment"; however, no copy of the indictment was included with the record of conviction. Therefore, as with the 1967 guilty plea, the record contains no evidence of the factual basis upon which the guilty plea was taken.
In addition, the Judgment states that the defendant "in person and in writing in open court having waived his right to trial by jury, such waiver being with the consent and approval of the County Attorney of Collin County, Texas, in writing, signed by him, and filed in the papers of this cause before the Defendant entered his plea herein . . . ." However, no such waiver form has been provided to this Court as a part of the record. Lastly, the record of conviction for the 1967 burglary conviction contains papers relating to the 1966 conviction. Those papers allege that the defendant violated his parole terms from the 1966 conviction by "committing the offense of burglary, a felony, April 28, 1967, in Collin County, Texas . . . ." If this document is correct, defendant was arrested, convicted and sentenced all on the same day.
A. Defendant's Testimony of February 21, 1990
Defendant testified in open court on February 21, 1990 about the facts and circumstances which resulted in the 1966 and 1967 guilty pleas entered into in the State of Texas. Some discussion of defendant's testimony is essential to this Court's task as defendant's testimony and the record of convictions