Hastie, Chief Judge, and McLaughlin and Stahl, Circuit Judges.
This is an appeal from the refusal of the lower court to grant appellant's request to withdraw his plea of guilty prior to sentencing. Appellant and his wife, Rita, were indicted for conspiring to utter and pass counterfeit ten dollar bills. Appellant originally pleaded not guilty on July 7, 1967. On September 18, 1967, he changed his plea to guilty. Sentencing was delayed pending the trial of his wife. Four months later, in January 1968, the case of Rita Stayton was called for trial and, after hearing all of the government's testimony, she changed her plea from not guilty to guilty following an unsuccessful motion for a judgment of acquittal.
On February 6, 1968 (prior to his sentencing which took place on April 3, 1968), appellant, John Stayton, filed a motion to withdraw his guilty plea. After a hearing on March 11, 1968, the motion was denied in an opinion of the district court on March 28, 1968,*fn1 and appellant subsequently received a sentence of a fine and imprisonment.
In support of his withdrawal motion, appellant alleged he had been of the opinion that if he were sentenced in a federal court on a guilty plea, other outstanding charges for a number of state and federal offenses would be dropped, or some arrangement made for lighter sentences in those matters, and further that he could serve all of his sentences in federal rather than in state institutions.*fn2
The court below, in assessing the testimony presented at the hearing, said that "on these matters * * * [appellant] had no promises from his attorney, the Public Defender, or the United States Attorney, * * *"*fn3
The motion to withdraw a guilty plea protects the right of an accused to a trial. Therefore, such requests made before sentencing "should be construed liberally in favor of the accused" by the trial courts. Kirshberger v. United States, 392 F.2d 782, 784 (5th Cir. 1968); Kadwell v. United States, 315 F.2d 667, 670 (9th Cir. 1963); and Poole v. United States, 102 U.S.App.D.C. 71, 250 F.2d 396, 400 (1957), where the court said: "Leave to withdraw a guilty plea prior to sentencing should be freely allowed."
In aid of the protection of the right to trial, Rule 32(d) of the Federal Rules of Criminal Procedure in effect establishes two separate standards for the allowance of the withdrawal of guilty pleas:
(d) A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.
One standard is to be applied on a motion for withdrawal of a guilty plea made before the imposition of a sentence; another is to be applied when the motion is made following sentence.
In order to avoid motions for withdrawal based on dissatisfaction with a sentence, once imposed, the Rule requires that a post-sentence motion should be denied unless "manifest injustice" to the defendant will result: Sullivan v. United States, 348 U.S. 170, 175, 75 S. Ct. 182, 99 L. Ed. 210 (1954); United States v. Washington, 341 F.2d 277, 281 (3d Cir.), cert. denied sub nom., DeGregory v. United States, 382 U.S. 850, 86 S. Ct. 96, 15 L. Ed. 2d 89 (1965); United States v. Shneer, 194 F.2d 598 (3d Cir. 1952).
In weighing motions for withdrawal of a guilty plea before sentencing, the test to be applied by the trial courts is fairness and justice.*fn4 Though not expressly stated in Rule 32(d), this standard was articulated by way of dictum in Kercheval v. United States, 274 U.S. 220, 224, 47 S. Ct. 582, 583, 71 L. Ed. 1009 (1927): "The court in exercise of its discretion will permit one accused to substitute a plea of not guilty and have a trial if for any reason the granting of the privilege seems fair and just. * * *" (Emphasis added.) Kercheval was decided before the adoption of the Federal Rules of Criminal Procedure, but the quoted standard has continued as the guideline for judicial disposition of a pre-sentence motion to withdraw a plea of guilty: Nagelberg v. United States, 377 U.S. 266, 84 S. Ct. 1252, 12 L. Ed. 2d 290 (1964); Gearhart v. United States, 106 U.S.App.D.C. 270, 272 F.2d 499, 502 (1959); United States v. Nigro, 262 F.2d 783, 787 (3d Cir. 1959); Everett v. United States, 119 U.S.App.D.C. 60, 336 F.2d 979, 985 (1964) (dissenting opinion by Judge Wright.)*fn5
This does not mean that every motion for withdrawal before sentence should be granted. There is no absolute right to withdraw a guilty plea, and the right to do so is within the sound discretion of the trial court. Nagelberg v. United States, supra ; Burnett v. United States, 404 F.2d 29 (10th Cir. 1968); United States v. Ptomey, 366 F.2d 759 (3d Cir. 1966); United States v. Washington, supra 341 F.2d at 281; Everett v. United States, supra 336 F.2d at 983; United States v. Colonna, 142 F.2d 210 (3d Cir. ...