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UNITED STATES EX REL. FINK v. RUNDLE

June 18, 1968

UNITED STATES of America ex rel. George G. FINK, E-8912
v.
A. T. RUNDLE, Superintendent



The opinion of the court was delivered by: WEINER

 WEINER, District Judge.

 Relator, a state prisoner, has applied for a writ of habeas corpus. His reasons are:

 (1) A plea of guilty allegedly induced by his attorney who informed him that the trial judge had made a commitment concerning the sentence to be imposed, which he allegedly did not honor.

 (2) Alleged irregularities in the proceedings prior to the pleas of guilty.

 From the records it appears that relator pleaded guilty to corrupting the morals of a minor, and to furnishing intoxicants to a minor, and was sentenced to a fine of fifty dollars and to imprisonment for a period of eighteen months to three years.

 A hearing was granted to relator by this court to determine if the trial judge had made a promise or commitment to petitioner which was not kept and which induced the guilty plea.

 The burden of persuasion rests upon the defendant who seeks to withdraw his plea. United States v. Shneer, 194 F.2d 598, 600 (3d Cir. 1952).

 The relator pleaded guilty to charges of corrupting morals and furnishing intoxicants to a minor. The court was assured by relator's counsel that defendant was aware of the circumstances at the time he made his plea. Sentence was imposed and neither relator nor his counsel complained. The following day relator was resentenced wherein imprisonment was changed from Eastern State Penitentiary to Lancaster County Prison. The only remark made by relator to the trial judge consisted of an inquiry regarding the question of consideration of his parole by the court in arriving at his sentence and this question was answered in the affirmative.

 The most serious allegation in his petition for a writ of habeas corpus is that he was advised by his attorney that there was an agreement that he would be sentenced only to nine months' imprisonment and that his parole would be continued.

 As a matter of law, fundamental fairness, as a concept of due process of law, requires that when an accused has entered a plea of guilty based upon a promise by a judge who thereafter, whatever the reason, fails to adhere to his promise, the judge on his own motion should reinstate the not-guilty plea. United States ex rel. Elksnis v. Gilligan, 256 F. Supp. 244 (S.D.N.Y.1966); Com. v. Kirkland, 413 Pa. 48, 54, 55, 195 A.2d 338 (1963).

 However, on the evidence presented before us, our conclusion is that the petitioner has failed to meet the burden of persuasion imposed upon him by law. United States v. Shneer, supra; Stidham v. United States, 170 F.2d 294, 297 (8th Cir. 1948).

 In support of his petition relator testified that the sole reason that he pleaded guilty was because of his attorney's statement relative to the imposition of sentence. *fn1" However, counsel testified that in his conversation with Fink he told him that there were no guarantees and indicated that the sentence would be ...


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