3. Gentry Was Competent to Plead Guilty
The court, upon review of the record, finds that Gentry was competent to make the guilty plea. Although Gentry was a 19 year old high school drop-out with a drug problem at the time of the plea, the record reveals that the sentencing judge was aware of those concerns and addressed them adequately. Id. at 22-24. The judge also was cognizant of the fact that Gentry had no prior experience with the criminal justice system. Id. Attorneys for both the state and gentry advised the Maine court that Gentry had a drug problem and that he was undergoing a drug treatment program. There was no indication that Gentry was under the influence of drugs at his plea or was otherwise rendered incompetent to make a voluntary and knowledgeable waiver of his rights. In his affidavit attached to his motion, Gentry fails to aver that his youth, his inexperience with the criminal justice system, or his drug problem made him incompetent to enter the guilty pleas.
This case is unlike United States ex. rel. Miller v. McGinnis, 774 F.2d 819, 825 (7th Cir. 1985), a case in which the Seventh Circuit took into consideration the criminal defendant's youth in determining that the totality of the circumstances rendered the plea unconstitutional. In Miller, the court that accepted the plea failed to inform the 17 year-old first-time offender of certain of his rights. The Maine court, by contrast, scrupulously advised Gentry of the panoply of rights he was waiving in pleading guilty.
4. Gentry Was Not Represented By Incompetent Counsel
Gentry's motion intimates that he did not receive effective assistance of counsel. Gentry avers in his affidavit that his attorney did not discuss career offender and habitual offender statutes with him and that she did not discuss with him the procedures in court or the law regarding his case. Gentry further states that she did not tell him whether it would be possible for him to plead guilty to fewer than all the burglaries charged even though she told him that she thought he could beat some of the charges at trial.
To prove ineffective assistance of counsel Gentry must overcome the "strong presumption that counsel's conduct (fell) within the wide range of reasonable professional assistance." Strickland v. Washington, 466 U.S. 668, 689, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). In order to defeat the presumption, Gentry "must demonstrate that his attorney's representation fell below an objective standard of reasonableness, and that there is a reasonable probability that but for his attorney's unprofessional errors, the results of the proceeding would have been different." United States v. Henry, 933 F.2d 553 (7th Cir. 1991) (citing Hill v. Lockhart, 474 U.S. 52, 57-58, 88 L. Ed. 2d 203, 106 S. Ct. 366 (1985)).
Nothing in Gentry's motion, however, suggests that "but for" his attorney's errors, "the results of the proceeding would have been different." Id. In United States v. Jordan, 870 F.2d 1310 (7th Cir. 1989), the Seventh Circuit rejected a similar argument that a criminal defendant's guilty plea was not valid because of ineffective assistance of counsel. In Jordan, the court noted that the defendant received a relatively lenient sentence in exchange for the guilty plea and that it was implausible that the attorney's alleged failings constituted a "but for" cause of accepting the plea. The same is true with respect to Kevin Gentry's plea. The Maine prosecutor recommended a light sentence for the seven burglary and seven theft counts he was charged with: two years in prison with all but sixty days suspended and the opportunity to return home to Illinois.
Finally, to prove the ineffective assistance of counsel, the Seventh Circuit requires Gentry to provide evidence beyond his own bare allegations. "In order to establish that his counsel failed to inform him of the possibility of federal prosecution, (the defendant, must provide some proof of his claim." Id. at 1318. See also United States v. Ferguson, 935 F.2d 862, 867 (7th Cir 1991); Cf. United States ex. rel. Healey v. Cannon, 553 F.2d 1052, 1055 (7th Cir.), cert. denied, 434 U.S. 874, 98 S. Ct. 221, 54 L. Ed. 2d 153 (1977) (defendant supported his allegation with statements from his father, who witnessed the misinformation, and from his attorney who admitted to giving erroneous advice). Gentry has failed to proffer evidence necessary to overcome the presumption that his Maine attorney offered reasonable assistance.
5. Gentry was Fully Advised of the Consequences of a Guilty Plea
Kevin Gentry was made aware of the consequences of a guilty plea. As discussed above, Judge Delahanty outlined in detail all the rights Gentry would be waiving in pleading guilty.
Gentry argues, however, that because the judge failed to inform him that his burglary convictions might later be used against him, he did not make an informed decision to plead guilty. The judge did warn Gentry in general terms that his convictions would haunt him for some time. He informed Gentry:
These matters of burglary and theft, especially with the number of them that you have, are going to follow you for quite sometime. whether you can put this matter behind you and stay out of future trouble is going to be totally up to you.
According to the Seventh Circuit, Judge Delahanty was not required to give any warning whatsoever. While the Supreme Court has held that a guilty plea is voluntary when the defendant has been made aware of the direct consequences of his plea, see Brady v. United States, 397 U.S. 742, 755, 25 L. Ed. 2d 747, 90 S. Ct. 1463 (1970), the Seventh Circuit has ruled that possible future federal prosecutions stemming from the guilty plea are not direct consequences of the plea. See Jordan, 870 F.2d at 1317 (upholding plea in state court even though defendant was not informed that the state conviction would subject him to criminal liability under a federal career criminal statute); See also United States v. Long, 852 F.2d 975 (7th Cir. 1988). Consequently, Gentry can not successfully challenge his plea on the grounds that he was not apprised that the plea could enhance the sentence he might receive should he commit a federal crime sometime in the future.
6. Organization of the Plea Colloquy
The most disturbing aspect of the plea colloquy is that the judge asked Gentry to plead to the twelve counts of the three indictments at the very beginning of the plea hearing. This occurred before Gentry has been advised of the rights that he would be forgoing if he pled guilty, including the right against self-incrimination. Only after Gentry said the word "guilty" twelve separate times did the court caution him that he had the right to remain silent.
Although it was highly irregular of the court to cause Gentry to say the word "guilty" at the outset of the plea hearing, a full reading of the record demonstrates that doing so did not amount to a "fundamental defect which inherently resulted in a complete miscarriage of justice." Hill v. United States, 368 U.S. 424, 428, 7 L. Ed. 2d 417, 82 S. Ct. 468 (1962). The transcript makes plain that the court did not consider Gentry's utterances of "guilty" at the beginning of the colloquy as constituting his plea. The judge did not accept the plea until Gentry was advised of his rights and of the consequences of pleading guilty, after asking Gentry several times again whether he truly intended to plead guilty. Tr. 12, 20. Gentry was given every reasonable opportunity by the judge to enter the type of plea he wished to.
Finally, Gentry suggests that he actually never did plead guilty to the charges against him after being informed of his rights and advised of the consequences of the plea. The plea colloquy, taken in its entirety, demonstrates that Gentry did indeed admit his guilt after being properly advised of his rights and the consequences. After advising Gentry of his Boykin and other rights, and after advising him that he did not have to plead guilty and that he had a right to trial, the judge asked, "And are you still willing to go forward?" Gentry answered, "Yes." Tr. 9. Later, the court asked, "Are you pleading guilty freely and voluntarily?" and Gentry answered, "Yes." Tr. 10. After telling Gentry that a guilty plea could lead to 35 years in prison, the court asked, "Are you still willing to go forward?" and Gentry again responded, "Yes." Tr. 12.
Those questions and answers make clear that Gentry did admit to his guilt. The fact that immediately prior to actually accepting the guilty plea, the judge asked Gentry whether he thought pleading guilty was "in his best interest," rather than asking Gentry if he was guilty, does not amount to a "fundamental defect which inherently resulted in a complete miscarriage of justice." Hill, 368 U.S., at 428.
In sum, the court concludes that Gentry failed to meet his burden of proof that his guilty pleas in Maine were not voluntarily and intelligently made. The court so concedes based on a review of the totality of the circumstances.
C. Amendment to § 924(e) When Applied to Gentry is Not an Ex Post Facto Law.
According to the first Maine indictment (88-1162), Gentry committed five burglaries between August 4-13, 1988. The second indictment (89-324) charged him with one burglary on November 7, 1988. The third indictment (89-412) charges him with a final burglary on December 4.
On November 18, 1988, the underlined words were added to 18 U.S.C. § 924(e)(1) by Public Law 100-690:
In the case of a person who violates section 922(g) of this title and has three previous convictions by any court . . . for a violent felony . . . committed on occasions different from one another, such person shall not be . . . imprisoned less than fifteen years.
The additional language was to clear up a dispute among the circuits. Some circuits had held that a defendant is subject to the enhanced penalty, regardless of the number of adjudications, as long as each conviction arises out of a distinct criminal episode. Others had held that courts should count the number of adjudicated separately even if more than one distinct criminal episode was tried at the same trial.
Gentry points out that Congress did not add the clarifying language until after he had committed six burglaries listed in the earlier two indictments. He then argues that because those first six burglaries would probably have been adjudicated together under Maine law, see Me. Rev. Stat. tit. 17A, § 14, the clarifying language should not be applied to those burglaries to treat them as separate offenses for the purposes of the enhancement provision. Rather, the first six burglaries should be lumped together as a single adjudication of burglary. His conviction based on the December 4, 1988 indictment (after the change in the law) would have given him a second conviction, one short of that required for sentence enhancement.
United States v. Jordan, 870 F.2d 1310 (7th Cir. 1989) defeats Gentry's argument. In Jordan, the defendant committed his three prior violent felonies before the enhancement statute was ever enacted. He was convicted of the precursor to § 922(g)(1) after the enhancement penalty was enacted. The Seventh Circuit ruled that the enhancement provision did not make more onerous the punishment for crimes committed before its enactment, because the enhancement provision did not increase the punishment for the three prior convictions. Rather, it imposed a stiffer penalty on the felon-in-possession crime, which had occurred after the enactment or the enhancement provision. The same would be true here with respect to the amendment to § 924(e).
Kevin Gentry's motion to preclude the government's use of Gentry's prior convictions for sentence enhancement purposes is denied.
BRIAN BARNETT DUFF,
UNITED STATES DISTRICT COURT
DATE: January 2, 1992