Appeal from the District Court of the United States for the District of New Jersey; Moore, Judge.
Before JONES and McLAUGHLIN, Circuit Judges and KALODNER, District Judge.
KALODNER, District Judge.
Was there an abuse of discretion by the trial court in denying the motion of the defendant-appellant, Colonna, for leave to withdraw his pleas of guilty?
On May 11, 1943, Colonna pleaded not guilty when arraigned before Judge Meaney of the United States District Court for the District of New Jersey on two indictments.*fn1 On May 19, 1943 the case was reached for trial and at that time permission was granted Colonna to change his pleas from not guilty to guilty. On May 21, 1943, when Colonna appeared for sentence before Judge Moore, a visiting judge, he asked for leave to withdraw his guilty pleas so as to plead not guilty. Judge Moore, after considering the record of the proceedings on May 19th when Colonna was granted permission to change his pleas from not guilty to guilty, refused to grant leave to withdraw the pleas of guilty and sentenced Colonna to prison.
Colonna contends that the denial of his motion to withdraw his pleas of guilty was tantamount to a denial of his constitutional right of trial by jury and was an abuse of the trial court's discretion. The statute*fn2 empowering the Supreme Court of the United States to prescribe rules of practice and procedure in criminal cases provides:
" * * * nothing herein contained shall be construed to give the Supreme Court the power to abridge the right of the accused to apply for withdrawal of a plea of guilty, if such application be made within ten days after entry of such plea, and before sentence is imposed."
Rule 2(4) of the Supreme Court Rules of Criminal Procedure 18 U.S.C.A. following section 688 provides as follows:
"A motion to withdraw a plea of guilty shall be made within ten (10) days after entry of such a plea and before sentence is imposed.As amended May 31, 1938."
The defendant concedes that neither under the statute or Rule 2 does he have an absolute right to withdraw a plea of guilty even though his motion is filed within ten days after the original plea of guilty and before the imposition of sentence. He further concedes that the granting of a motion to withdraw a plea of guilty is addressed to the sound discretion of the trial court. He vigorously contends, however, that where the defendant insists that he is innocent of the charges contained in the indictment and offers "any" explanation for his having pleaded guilty, the trial court should grant his motion to withdraw his plea of guilty, as long as such application is seasonably made under Rule 2.
It is well settled that a motion for leave to withdraw a plea of guilty and to substitute a plea of not guilty is addressed to the sound discretion of the trial court; and further that the exercise of such discretion is reviewable by this court. Camarota v. United States, 3 Cir., 2 F.2d 650; Ward v. United States, 6 Cir., 116 F.2d 135; United States v. Fox, 3 Cir., 130 F.2d 56.
The cases uniformly hold that motions to withdraw a plea of guilty should be denied where the plea of guilty was entered either by the defendant or his counsel in his presence, and if the defendant knew and understood what was being done and there was not present any circumstances of force, mistake, misapprehension, fear, inadvertence or ignorance of his rights and understanding of the consequences of the plea.
That the withdrawal of a plea of guilty is not "a matter of right" was stressed in United States v. Denniston, 2 Cir., 89 F.2d 696, 110 A.L.R. 1296. ...