Cir. 1972). The Court has therefore considered this petition as one by which the petitioner seeks to have his judgment of guilty vacated as not being in conformity with Rule 11 of the Federal Rules of Criminal Procedure.
The petitioner testified that at the time he was arrested on the Federal charge and David Garfunkel, Esq. was appointed by the Court to represent him, he was being held in the Philadelphia Detention Center awaiting trial for first degree murder. Petitioner stated that during the first discussion between himself and Mr. Garfunkel, he did not want to plead guilty and so informed his counsel. The petitioner then testified that as a result of subsequent meetings between himself and Mr. Garfunkel, he determined that the best course to follow was to enter a plea of guilty to the Federal charge. However, the petitioner insists that when it was finally agreed that he should enter a guilty plea it was on the condition that Mr. Garfunkel would at some later date submit a petition for the reconsideration of whatever sentence this Court imposed. Petitioner testified that he never received any promise from the Government other than that it would recommend a sentence of not more than five years imprisonment. He also testified that no one made any promises to him that this Court would subsequently reduce its sentence or change it to run concurrently with whatever state sentence might subsequently be imposed. Petitioner further testified that he did not expect to receive a sentence from this Court which would run concurrently with any state sentence he might subsequently receive. The petitioner testified that after arriving at Graterford Prison to serve the subsequently imposed state sentence of four to ten years, he first learned that he could not commence serving his Federal sentence until he had completed his state sentence. On June 18, 1974, the petitioner wrote to this Court concerning the possibility of a reconsideration of his sentence and was informed that the 120 day period, within which to so petition, had elapsed. Petitioner testified that he then contacted Mr. Garfunkel concerning his petition for a reconsideration of sentence and Mr. Garfunkel informed him that the 120 day rule precluded a petition for the reconsideration of sentence. Mr. Murphy then filed the petition which is currently before this Court.
The testimony of Mr. Garfunkel differed in several respects from that of the petitioner. Mr. Garfunkel stated that he had extensive discussions with the petitioner concerning the problems inherent in his being involved in a Federal case while being held in state custody awaiting trial. He testified that he told the petitioner that if he was sentenced by this Court and was subsequently sentenced by the state court he would then possibly be in a position to petition this Court for a reconsideration of the Federal sentence and seek to have the Court reconsider its sentence to have it run concurrently with the state sentence. However, Mr. Garfunkel testified that at the time he made this statement to the petitioner, he was led to believe by Mr. Murphy that the state court case, in which he was not represented by Mr. Garfunkel, would terminate in an acquittal or, in any event, would be resolved within a short period of time. Mr. Garfunkel could not recall whether he specifically mentioned the 120 day period provided in Rule 35 of the Federal Rules of Criminal Procedure, but he did testify that his agreement to file a petition for reconsideration of this Court's sentence was specifically conditioned upon the disposition of the murder charge in the state case. In essence, Mr. Garfunkel testified that the understanding he had with the petitioner was that the petitioner should contact him immediately after he was sentenced in the state court and it would then be determined whether a petition should be filed with this Court for a reconsideration of sentence.
The Court has determined that the testimony of Mr. Garfunkel is credible and conforms to a reasoned evaluation of the petitioner's situation. Mr. Garfunkel is an experienced and competent member of the criminal bar of this Court. He is thoroughly familiar with its procedures. At the time the petitioner received his Federal sentence there was no state sentence imposed on the murder charge in the state court. This Court, therefore, could not have recommended that its sentence run concurrently with the state court sentence.
Thus, it is not believable that Mr. Garfunkel would have led the petitioner to feel that he would file for a reconsideration of this Court's sentence at any time prior to the imposition of the state sentence.
Even if we were to find that Mr. Garfunkel agreed to petition for a reconsideration of this Court's sentence as a condition to the petitioner agreeing to enter a plea of guilty, we cannot see how this would make the entry of that plea involuntary or coerced. At the change of plea proceeding before this Court, the petitioner was made aware of the nature of the charges against him (N.T. 8, 12),
the maximum sentence that could be imposed (N.T. 10),
that a mandatory special parole term would follow any term of imprisonment (N.T. 10),
the factual basis on which he was pleading guilty (N.T. 8),
any promises made to the petitioner (N.T. 7),
that the practice of plea bargaining was acceptable (N.T. 7),
and the constitutional rights he was relinquishing by entering a plea of guilty (N.T. 5).
The Court also made a finding that the entry of the guilty plea was voluntary and an intelligent and understanding choice from among the alternatives then facing the petitioner (N.T. 13).
With respect to the promises made to the petitioner, the following exchange occurred:
THE COURT: Now has anybody threatened you or coerced you to come in here and change your plea today?