UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: March 20, 1969.
UNITED STATES OF AMERICA
JOHN STAYTON AND RITA STAYTON, JOHN STAYTON, APPELLANT
Hastie, Chief Judge, and McLaughlin and Stahl, Circuit Judges.
STAHL, Circuit Judge.
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. 1944).*fn6 If the government can show substantial prejudice, then the motion, in the trial court's discretion, may be denied.*fn7
In the instant appeal the United States does claim prejudice on two grounds:
(1) The trial of appellant's wife revealed the government's case and appellant met and talked with her after the trial (App. 39a-41a); and
(2) The government witnesses were becoming reluctant to keep coming back to court (App. 43a).*fn8
With respect to these assertions, the district court said:
It is obvious to me that John Stayton waited until the trial of his spouse was terminated to file this petition through the Public Defender. He then had the benefit and knowledge of the testimony of all of the Government witnesses. This, of course, can only be assumed and is based entirely on the fact that he talked to his wife Rita in the Marshal's Office (with the consent of the Court).
So, if there was any prejudice at all it would be against the Government who had opened up its complete evidentiary record when it tried the case against his wife, Rita Stayton; and the further factor that the witnesses who were brought into Court at least two times are becoming recalcitrant. 285 F. Supp. at 429.
In view of our disposition of this appeal, we do not pass on whether there was such prejudice here as to justify denial of the motion to withdraw the guilty plea.*fn9
As stated in its opinion,*fn10 the court below applied the more exacting "manifest injustice" standard of Rule 32(d), citing United States v. Mainer, 383 F.2d 444 (3d Cir. 1967), and stressing the "heavy burden" which under that case appellant carries in order to prevail. Mainer was a case where the defendant moved to withdraw a guilty plea after sentence was imposed. To apply the Mainer standard here to appellant's presentence motion to withdraw his guilty plea was error.*fn11
We cannot assume that the district court would have denied the motion under the more liberal "fair and just" rule, and in fairness to appellant his motion should be considered by the district under the appropriate standard.
This is not a case like Sherman v. United States, 383 F.2d 837 (9th Cir. 1967), where the district court clearly indicated it had applied both standards in disposing of what the Court of Appeals construed to be a pre-sentence motion. As the appellate court concluded that there had been no abuse of discretion in denying the withdrawal of the guilty plea even under the more liberal standard, it affirmed the lower court's decision. We cannot find here that the district court held that the motion to withdraw should be refused under either of the two standards.
In view of the foregoing, we return this case to the lower court in order that it may apply the proper pre-sentence standard and in its sound discretion grant or deny the appellant's motion.
The judgment of the lower court shall be vacated and the case remanded to the district court for further consideration in accord with this opinion.