Before VAN DUSEN, GIBBONS, and JAMES ROSEN, Circuit Judges.
JAMES ROSEN, Circuit Judge.
This is an appeal from the denial of a writ of habeas corpus. The issue before us is whether a state trial judge erred in refusing to permit Culbreath to withdraw his plea of guilty to a murder indictment prior to the imposition of sentence.
The Pennsylvania Supreme Court held that an application for leave to withdraw a plea of guilty is a matter of judicial discretion and it will not be reversed in the absence of a clear abuse of discretion or an error of law which controlled the lower court's decision.*fn1 That court specifically found that the trial court had not abused its discretion. The United States District Court, 320 F. Supp. 1052, held that "upon review of the state court record, this court agrees."
Wallace Culbreath was indicted for the crimes of murder (No. 399), violation of the Uniform Firearms Act (No. 400) and voluntary manslaughter (No. 401). The indictments arose out of the death, caused by gun shot wound, of Ernest McNeill on July 1, 1968 in the City of Chester, Pennsylvania.
On January 13, 1969 appellant's case was called for trial. Court appointed counsel, Mr. I. B. Sinclair, the defendant and the Assistant Prosecutor were present in court, and defendant Culbreath entered a plea of not guilty to indictment No. 399, charging murder.
When a conference was requested, the judge inquired as to the need for Culbreath's presence and was advised by Mr. Sinclair that it would not be necessary for his client to attend. There then followed a conference between the Assistant District Attorney and defense counsel in chambers and in the presence of the trial judge. When the conference was concluded and the attorneys returned to the courtroom, the Assistant District Attorney stated in open court that he had been advised by counsel for the defendant that Culbreath wished to change his plea and enter a plea of guilty to the murder indictment. Thereafter, there was an extensive inquiry examination of the defendant, first by Mr. Sinclair and then by the trial judge, for the purpose of determining whether or not the plea of guilty was voluntarily, knowingly and intelligently made. The trial judge being satisfied that the defendant had been properly advised of his rights and made aware of the consequences of a guilty plea, Culbreath was permitted to change his plea to the murder indictment from not guilty to guilty. Specifically, Culbreath stated that there were no promises made to him either by the District Attorney, counsel, or anyone else as to what the sentence would be.
Evidence was then taken concerning appellant's degree of guilt,*fn2 after which Mr. Carey, Assistant District Attorney, addressed the court
"[As] to any consideration of sentence, * * * I would say, having gone into this case * * * and freely discussed it at great length yesterday even on the telephone with Mr. Sinclair * * *, I told him yesterday that I would make the statement to the Court that * * * it is my understanding the sentence at Broadmeadows would be a maximum of two years. * * *"
The colloquy between the judge and Mr. Carey continued as follows:
THE COURT: Are you suggesting a two-year penalty? Is that what you are suggesting?
MR. CAREY: I am so indicating to the ...