(D.C. Civil Action No. 71-1651). APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Forman, Van Dusen and Gibbons, Circuit Judges. Van Dusen, Circuit Judge, dissenting.
This is an appeal from an order of the district court which denied appellant Jasper's motion pursuant to Fed. R. Crim. P. 32(d) to withdraw a guilty plea, and which denied his motion pursuant to 28 U.S.C. § 2255 to vacate a judgment of sentence.
On May 28, 1968 Jasper and two codefendants entered pleas of guilty to all three counts of an indictment charging violations of 18 U.S.C. §§ 2113(a), (b) and (d). On April 15, 1969 Jasper was sentenced to imprisonment of fifteen years on each count, with the sentences on the second and third counts to run concurrently with that imposed on the first count. On December 16, 1969 Jasper filed a motion, pursuant to rule 35, for correction of sentence. He contended that multiple sentences on a single indictment growing out of a single bank robbery, even though concurrent, are illegal. See Prince v. United States, 352 U.S. 322, 1 L. Ed. 2d 370, 77 S. Ct. 403 (1957). He also contended that the fifteen year sentence is illegal because it is in excess of the maximum sentence of ten years permissible under 18 U.S.C. § 2113(b), the larceny count. On February 9, 1970 the district court, without the defendant being present either in person or by counsel, entered an order:
"AND NOW . . . under Rule 35 of the Federal Rules of Criminal Procedure and in light of the ruling of the United States Court of Appeals for the Third Circuit in United States v. Conway, 415 F.2d 158 (1969), it is hereby ORDERED, ADJUDGED AND DECREED that the sentences imposed on Counts 1 and 2 of Indictment No. 23280 on April 21, 1969 [sic], are hereby vacated and the sentence corrected as follows:
'It is adjudged that the defendant is hereby committed to the custody of the Attorney General or his authorized representative for a period of fifteen (15) years on Count 3 of the Indictment. Imposition of sentence on Counts 1 and 2 is hereby suspended.'"
In the applications now before us Jasper urges (1) that because the district court failed, at the time his guilty plea was accepted, to comply with Fed. R. Crim. P. 11 he should be permitted to retract that plea and plead anew; (2) that the district court's failure to comply with rule 11 was compounded when the government attorney and the court at the hearing on his guilty plea gave him erroneous advice as to the possible maximum sentence which could be imposed if he were convicted on all counts of the indictment; (3) that the new sentence imposed was illegal when measured against the standard laid down in United States v. Corson, 449 F.2d 544 (3d Cir. 1971); and (4) that he was entitled to be present at all stages of the criminal proceedings against him, including the February 9, 1970 resentencing.
The district court, without conducting a hearing, evidentiary or otherwise, and without appointing counsel, rejected each of Jasper's contentions. It did so on the basis of a report and recommendation of a United States Magistrate, based on the transcript of the May 28, 1968 hearing on entry of Jasper's plea. The magistrate's report states: "It would appear, and the Notes of Testimony indicate, that the Court complied with the provisions of Rule 11." With respect to the advice about the possible maximum sentence the magistrate's report states: "There is no indication from the record that the statements made by the Assistant United States Attorney or the Court were in error and Petitioner has failed to establish his burden of persuasion." The report does not deal with Jasper's contentions that the new sentence is not in compliance with United States v. Corson, supra, and that he should have been present at his resentencing.
Rule 11 is designed to assure that a defendant who pleads guilty does so voluntarily, knowingly and intelligently. In McCarthy v. United States, 394 U.S. 459, 22 L. Ed. 2d 418, 89 S. Ct. 1166 (1969), the Court held that noncompliance by the court with the strict requirements of the Rule would be deemed automatically prejudicial. The remedy for such prejudice is permitting the defendant to plead anew. In Halliday v. United States, 394 U.S. 831, 23 L. Ed. 2d 16, 89 S. Ct. 1498 (1969) (per curiam), however, the Court held that the per se rule of McCarthy v. United States, supra, need not be applied retroactively. The plea in this case was taken prior to April 2, 1969, the date of the McCarthy decision. In such cases if the court finds noncompliance with rule 11 a factual inquiry should be made to determine whether in fact the defendant's plea was voluntarily, knowingly and intelligently entered. Cf. Fontaine v. United States, 411 U.S. 213, 93 S. Ct. 1461, 36 L. Ed. 2d 169, 41 U.S.L.W. 4473 (1973) (per curiam). When a petitioner has shown noncompliance the burden, in that factual inquiry, is upon the Government. Halliday v. United States, supra ; Woodward v. United States, 426 F.2d 959, 963 (3d Cir. 1970). See United States ex rel. Crosby v. Brierley, 404 F.2d 790, 795-96 (3d Cir. 1968); United States ex rel. McCloud v. Rundle, 402 F.2d 853, 857 (3d Cir. 1968), cert. denied, 398 U.S. 929, 26 L. Ed. 2d 92, 90 S. Ct. 1822 (1970). In Woodward v. United States, supra, we held that the Government had, in an evidentiary hearing, met that burden. In this case the district court held no hearing. Thus the order appealed from may be sustained only if the record in the proceedings leading to the plea shows compliance with rule 11, or if it shows conclusively that the plea was voluntarily, knowingly and intelligently made. Short of these situations, a hearing is required.
Prince v. United States, supra, construed 18 U.S.C. § 2113 as not permitting the cumulation of sentences, although a single indictment may contain separate counts charging violations of each subsection. In United States v. Corson, supra, we considered what steps should be taken when a district court had in imposing sentence misapplied 18 U.S.C. § 2113 by imposing separate sentences on each count. We said:
"In this case, the trial court erroneously imposed separate sentences on all three robbery counts. It is impossible to say that certain of these sentences rather than others were 'illegal' under Rule 35. Rather, it was the cumulation of sentences, the sentencing in its entirety which was 'illegal.' It was therefore error for the district court merely to have vacated the sentences on counts II and III and to have left standing the sentence on count I. Thus, all the sentences originally imposed were invalid and ought to have been vacated in their entirety, so that the appellant could then be resentenced.*fn16
Corson explicitly directed that the resentencing be in conformity with Fed.R.Crim.P. 43, and that rule requires the defendant's presence. Consequently the remedy for correction of a sentence illegal under Prince v. United States, supra, was not the vacation of the sentences on some of the counts, but a resentencing at which the defendant must be present.
Thus the law governing this appeal is settled. If a violation of the Prince rule took place in the original sentencing the defendant must be brought before the court for resentencing. If at the time of entry of the guilty plea the district court did not comply with rule 11 the Government must establish that the guilty plea was voluntarily, knowingly and intelligently made or the defendant must be permitted to plead anew.
Complicating Jasper's resentence claim, however, is the fact that our decision in United States v. Corson, supra, with respect to the appropriate remedy for a Prince violation represented a change in the law from the remedy announced in United States v. Conway, 415 F.2d 158, 166 (3d Cir. 1969), cert. denied, 397 U.S. 994, 25 L. Ed. 2d 401, 90 S. Ct. 1131 (1970). The district ...