of Henry's rights." 933 F.2d at 560. The Seventh Circuit also noted that with respect to the 1975 plea the defendant should have understood that he had the right to plead not guilty particularly in light of the fact that he was changing his plea from not guilty to guilty in that proceeding. Id.
The circumstances surrounding Burnom's 1969 guilty plea do not compare to those in Henry. The defendant was only 17 years old at the time and apparently had no experience with guilty plea proceedings. Without further evidence demonstrating that the ramifications of his guilty plea were better explained to Burnom, this Court hesitates to overturn its original determination. The government's contention that the presence of the defendant's attorney at the plea proceeding plays a crucial role in this determination does not affect the Court's determination. Unlike United States v. Gallman where the Seventh Circuit found the guilty plea intelligent because the defendant had fully discussed the implications of such a plea with his attorney, 907 F.2d 639, 643 (7th Cir. 1990), the record in this case does not show that the attorney had fully discussed the ramifications of a guilty plea with Burnom. Therefore, this court upholds its earlier decision that Burnom's 1969 guilty plea is constitutionally invalid for purposes of sentence enhancement under § 924(e).
B. 1976 Plea
The court also finds that the defendant's 1976 plea is constitutionally invalid. The government asserts that the plea was valid even though the judge "stumbled over his prepositions a bit." Comparing this case to Henry, the government further contends that Burnom's plea was rendered intelligently, regardless of the judge's omissions, because he had experience with plea proceedings by this time. The defendant counters that the allegedly cursory discussion of his constitutional rights by the judge was much more significant than the government suggests.
The judge in Burnom's 1976 plea proceeding questioned the defendant in a very perfunctory manner regarding his understanding of the ramifications of the guilty plea. The judge merely asked the defendant: "You understand when you plead guilty you waive your right to a jury trial and bench trial or right to be confronted by the witnesses and right of self incrimination?" The judge failed to give any further explanation of the constitutional rights the defendant was waiving or to clarify his statements. Moreover, Burnom barely spoke during the plea proceeding. He was asked approximately five questions, including the question noted above, requiring nothing more than a yes or no answer.
The court did not explain the charge against defendant, and did not set forth the factual basis for defendant's plea on the record or have defendant stipulate to its accuracy. Indeed, Burnom never even formally stated that he pled guilty. The judge simply asked Burnom if he accepted "that" plea, apparently referring to a plea of guilty, and Burnom answered yes.
Given the perfunctory discussion of the rights Burnom was waiving by entering a guilty plea, this court believes the circumstances surrounding Burnom's plea are not comparable to those in Henry. The government argues that the Seventh Circuit in Henry mentioned the defendant's experience with plea proceedings when discussing its determination that the defendant's plea was rendered intelligently. 933 F.2d at 560. However, the government fails to note that the Henry court also considered that the judge in the plea proceeding went through a "thorough exposition of the defendant's rights." Id. Here, the judge did not adequately advise the defendant of his constitutional rights as the court did in Henry. Unlike Henry, the court in this case asked defendant if he waived his constitutional rights in one perfunctory question. Also, as previously noted, the court did not advise defendant of the charge against him or explain the factual basis for the plea on the record so that defendant could stipulate to its accuracy. See Id.
Moreover, this court will not assume that the defendant possesses the requisite understanding of the consequences of entering a guilty plea merely because he has experience with plea proceedings. This court recognizes that the court in Henry noted that the defendant had experience with plea proceedings when it determined that the defendant's 1975 guilty plea was constitutional. However, the Henry court only relied on this fact because the defendant was changing his plea from not guilty to guilty. The court was thus assured that the defendant understood that he had the right to plead not guilty. See Henry, 933 F.2d at 560.
Here, the court is not assured that the defendant understood that he had the right to plead not guilty just because he has prior experience with the criminal justice system. To assume a defendant understands the consequences of a guilty plea just because he has a criminal record sets a dangerous precedent. As the Supreme Court stated in Boykin, a plea of guilty is in itself a conviction. This is too high a price to pay for a court's failure to thoroughly explain a defendant's constitutional rights to him before he enters his guilty plea. Since no meaningful discourse regarding his constitutional rights took place, this court will not impute an understanding of the effects of a guilty plea to Burnom. This court reaffirms its earlier conclusion that Burnom's 1976 plea was not rendered intelligently.
For the reasons stated above, the court upholds its prior determination that the defendant's 1969 and 1976 guilty pleas are constitutionally invalid. Therefore, these guilty pleas cannot be used to enhance the defendant's sentence under § 924(e).
Ann Claire Williams, Judge
United States District Court
Dated: AUG 18 1992