APPEAL FROM AN ORDER OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 73-132).
Adams, Hunter and Garth, Circuit Judges.
ADAMS, Circuit Judge. This appeal requires us once again to deal with difficult legal and factual problems relating to post-sentence attempts to withdraw guilty pleas.
Simon Hawthorne, appellant, was charged in a two count indictment, filed on May 3, 1973, with selling cocaine in violation of 21 U.S.C. § 841(a)(1). On May 14, 1973, Hawthorne pleaded not guilty to both counts. However, on July 5, 1973, he pleaded guilty at a Rule 11 proceeding*fn1 to one of the two counts and, at the same time, the United States announced its intention to move to dismiss the other count.
At the Rule 11 proceeding, Hawthorne was asked several questions by the district court and the prosecutor to determine whether, in fact, his plea was being voluntarily entered. Hawthorne's answers to questions concerning his belief, if any, that he would receive leniency apart from dismissal of one of the counts pending against him are not consistent. Hawthorne responded affirmatively to the following question of the Assistant United States Attorney:
Aside from my representation to dismiss the first count and advise the court of any [sic] of your cooperation have any threats or promises been made to you to enter this plea?
Yet, Hawthorne responded negatively to the following questions of the district court:
Has anyone promised you that I, as the sentencing judge, would go easy on you?
Other than the fact that the Government has agreed to drop the first count if you plead guilty, has any other promise been made to you to induce you to change your plea from not guilty to guilty?
No one on the side of the government, or your own lawyer, or anyone, has made you any promises?
Further, in the presence of Hawthorne, the Assistant United States Attorney informed the district court that there had been no plea bargaining "in the sense that we have agreed upon any sentence." Hawthorne's court-appointed counsel agreed with this representation. The court imposed a sentence of 10 years.
One month after the guilty plea proceeding, Hawthorne wrote a pro se letter to the district court alleging, in substance, that his guilty plea had been prompted by his attorney's promise to him that he would receive only a five year sentence.*fn2 Hawthorne requested that he be permitted to withdraw his guilty plea. The district court, without a hearing, rejected the request in a brief opinion, dated November 2, 1973, which relied on Hawthorne's negative responses to the series of questions directed to him by the district court at the guilty plea proceedings.
On November 13, 1973, Hawthorne wrote a second time to the district court, asserting that his answers to the court's questions at the guilty plea hearing were given on the advice of his counsel.*fn3 On the same day it received the letter, the district court, without a hearing, denied Hawthorne's request for ...