UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
February 6, 1976
UNITED STATES OF AMERICA
JOHN D. CROWLEY A/K/A JACK CROWLEY, APPELLANT
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. D.C. Crim. No. 74-232.
Maris, Van Dusen and Hunter, Circuit Judges.
Author: Van Dusen
Opinion OF THE COURT
VAN DUSEN, Circuit Judge.
John D. Crowley appeals from a judgment of sentence following his plea of guilty to one count of an indictment charging him with selling and delivering counterfeit obligations of the United States in violation of 18 U.S.C. § 473 (1970). Defendant asserts that he was denied the right to counsel on his motion to withdraw his guilty plea prior to sentencing and that the district court erred in denying the guilty plea withdrawal motion. For the reasons given below, we conclude that the absence of counsel on the motion to withdraw the guilty plea was harmless beyond a reasonable doubt on the facts of this case and that there was no error in the denial of that motion.
On July 31, 1974, defendant was charged in a two-count indictment with possessing and concealing seven counterfeit $20.00 Federal Reserve Notes in violation of 18 U.S.C. § 472 (1970) (Count I), and with selling and delivering seven counterfeit $20.00 Federal Reserve Notes in violation of 18 U.S.C. § 473 (1970) (Count II). Defendant entered a plea of not guilty and, with the aid of court-appointed counsel, sought to suppress certain statements constituting a confession that he had made to arresting officers.
At the suppression hearing on October 4, 1974, defendant testified that he did not remember saying several things in his written confession and that he had been told by Agent Daniel Mayer that he would be detained over the weekend unless he gave a statement.*fn1 In view of this testimony, the Government requested a continuance of the hearing to produce Agent Mayer, who had been transferred to Washington, D.C. The Government's motion was granted and the suppression hearing was continued until November 21, the day set for trial. At the continued hearing on November 21, Agent Mayer, who had come to Pittsburgh from Washington, D.C. in order to testify at the suppression hearing and the trial, denied under oath the allegation that he had threatened to keep defendant in jail over the weekend. The trial judge denied the motion to suppress, specifically finding that the defendant was not a credible witness and that his testimony was "an incredible attack[s] upon the agent[s]."*fn2
At this point, when selection of the jurors for trial was about to begin, the defendant elected to enter a plea of guilty (45a) to the second count of the indictment.*fn3
On November 26, 1974, five days after defendant had pled guilty, but prior to sentencing, defendant's court-appointed counsel filed a petition to withdraw his representation. The petition stated that since pleading guilty defendant had indicated a desire to withdraw his plea of guilty and that, due to certain information counsel had received, he believed he was unable to represent defendant in the withdrawal of the guilty plea. A hearing was held on counsel's motion on December 6, 1974, at which time he essentially informed the court that he could not vouch for the veracity of what defendant might say in support of the motion to withdraw his guilty plea.*fn4 Following this colloquy, the court held counsel's motion to withdraw his representation in abeyance and instructed defendant to proceed pro se on his motion to withdraw his guilty plea:
" THE COURT: If it is [defendant's] motion, I will [call defendant], and we will hold [defense counsel's] motion in abeyance.
" THE COURT: Mr. Crowley, come forward.
"You have filed a motion to change your plea from guilty to not guilty. Now, from here on, the burden is yours because you have already heard your attorney say that he can't in good conscience come in and support you on what you have said insofar as the motion is concerned. There it is. You can carry it now."*fn5
The court then questioned defendant on the reasons for his motion to withdraw the guilty plea. Defendant stated that when he entered the plea, he had believed that he was pleading guilty to a misdemeanor and not to a felony. He stated that subsequent to the entrance of the guilty plea, he had learned that he could not continue to work as a Pittsburgh fireman because he had pled guilty to a felony (6a-13a). Defendant further testified that when the Government had agreed to dismiss Count I, and thereby to reduce the possible punishment from 25 years to 10 years' imprisonment, he had assumed Count II was a misdemeanor (12a). According to defendant, neither the court, defense counsel, nor the Government had characterized the crime charged in Count II as either a misdemeanor or a felony. No other witnesses were called, and no arguments for or against the motion were presented.
The motion to withdraw the guilty plea was denied. Immediately thereafter, the court denied counsel's motion to withdraw as counsel (12a-13a), and on January 28, 1975, imposed a suspended sentence of three years, placing the defendant on probation for five years.
We will first address the defendant's contention that the judgment of conviction and sentence must be set aside because of the absence of counsel for the defendant at the hearing on his motion to withdraw his guilty plea to the second count of the indictment, and will then turn to his contention that there was error in the denial of that motion, irrespective of the absence of counsel.
I. Absence of Counsel
As interpreted by the Supreme Court, the Sixth Amendment's guarantee that "in all criminal prosecutions the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense" applies to every "critical stage" in a criminal prosecution. See, e.g., Gerstein v. Pugh, 420 U.S. 103, 121-23, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975); Coleman v. Alabama, 399 U.S. 1, 9, 26 L. Ed. 2d 387, 90 S. Ct. 1999 (1970). At least absent unusual circumstances, a hearing on a motion to withdraw a guilty plea is sufficiently important in a federal criminal prosecution that the Sixth Amendment requires the presence of counsel. See, e.g., United States v. Joslin, 140 U.S. App. D.C. 252, 434 F.2d 526, 529-30 (1970); cf. United States v. Mainer, 383 F.2d 444, 447 (3d Cir. 1967). In any event, assuming the Sixth Amendment's guarantee does apply, we have concluded that the absence of counsel at such a hearing was harmless beyond a reasonable doubt under the circumstances shown in this record.
In Chapman v. California, 386 U.S. 18, 23, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), the Supreme Court made clear that "all trial errors which violate the Constitution [do not] automatically call for reversal." The Court in Chapman also stated, however, that "there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error. . . ." As an example of such a right, the Court cited in footnote 8 to the above-quoted sentence, inter alia, "Gideon v. Wainwright, 372 U.S. 335, [9 L. Ed. 2d 799, 83 S. Ct. 792] (1963) (right to counsel)." In reliance on footnote 8, a number of courts and commentators prior to 1971 seem to have concluded that denial of the right to counsel can never be treated as harmless error.*fn6 See also Hamilton v. Alabama, 368 U.S. 52, 55, 7 L. Ed. 2d 114, 82 S. Ct. 157 (1961).
In our view, neither Gideon v. Wainwright, supra, nor Hamilton v. Alabama, supra, forecloses application of the harmless error doctrine to the denial of counsel*fn7 in this case. First, this case involves neither the absence of counsel at trial nor a capital offense and, hence, both Gideon v. Wainwright (trial) and Hamilton v. Alabama (capital offense) are factually distinguishable. See also Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974) (trial).
Furthermore, we believe that application of the automatic reversal rule of Chapman's footnote 8 to denial of counsel at a motion to withdraw a plea of guilty would be inconsistent with the more recent case of Coleman v. Alabama, 399 U.S. 1, 26 L. Ed. 2d 387, 90 S. Ct. 1999 (1970). In Coleman, a majority of the Court joined in Part III of Mr. Justice Brennan's opinion in which he makes it clear that "the test to be applied is whether the denial of counsel at the [particular] hearing was harmless error under Chapman v. California, 386 U.S. 18, [17 L. Ed. 2d 705, 87 S. Ct. 824] (1967)."
In its most recent opinions, particularly those decided in this decade, discussing the right to counsel, the Supreme Court has observed that the role of counsel at various pre-trial and post-trial hearings depends upon the circumstances of the case and may differ significantly from the role of counsel at trial.*fn8 See Gerstein v. Pugh, 420 U.S. 103, 121-23, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975);*fn9 cf. Gagnon v. Scarpelli, 411 U.S. 778, 788-90, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973); Adams v. Illinois, 405 U.S. 278, 281-83, 31 L. Ed. 2d 202, 92 S. Ct. 916 (1972). In accordance with the approach of these more recent cases, this court has held that in certain circumstances ineffective assistance of counsel can be nonprejudicial, requiring the affirmance of a district court judgment in spite of such ineffective assistance. See United States ex rel. Green v. Rundle, 434 F.2d 1112, 1115 (3d Cir. 1970). In light of these cases and Coleman v. Alabama, supra, we conclude that the harmless error doctrine is applicable to denial of counsel at a hearing on a motion to withdraw a guilty plea at least where (1) the defendant alleges neither that he is innocent nor that his original plea was involuntary, cf. Gagnon v. Scarpelli, supra, 411 U.S. at 790, and where (2) it is clear that the defendant is not entitled to withdraw his plea. We therefore turn to an examination of whether the denial of counsel in this case was harmless constitutional error.
In this case, defendant was 29 years old, had graduated from high school, and "had schooling in electronics" (46a). At the December 6 hearing, he fully presented his factual argument in support of his motion to withdraw his guilty plea.*fn10 The Government's attorney did not cross-examine him and no legal arguments were made in opposition to the motion.*fn11 Moreover, defendant's present counsel has not advanced any legally acceptable reasons or proffered any new facts in support of the motion, and the record indicates that none could have been advanced at the time of the motion. The contention that substitute counsel should have been appointed by the court on or before December 6, so that such counsel could have called defendant's appointed counsel and elicited testimony that Crowley was not properly advised at the time of the change of plea on November 21, is based on pure speculation as to what such testimony would have been and is unsupported by anything in the record.*fn12
Furthermore, in view of the facts of this case, it is extremely unlikely that counsel would have been any more effective than the defendant himself in convincing the district court to exercise its discretion to permit withdrawal of the plea. The Government would have been unfairly prejudiced by any grant of the motion to withdraw the plea of guilty since all the trial witnesses were present on November 21 and would have had to be reassembled for a trial held after that date. In addition, defendant was thoroughly interrogated about the basis of his plea at the time it was entered and did not claim thereafter that he was innocent.*fn12a Indeed, the record shows that the plea was voluntarily and intelligently made.
Under the circumstances presented by this record, we conclude that the absence of counsel for defendant at the December 6 hearing on his motion to withdraw his plea was harmless beyond a reasonable doubt.
II. Motion to Withdraw Guilty Plea
The defendant has no absolute right to withdraw a guilty plea prior to sentencing. The granting of such a motion "lies within the sound discretion of the trial court and its determination will only be disturbed where it has abused its discretion." United States v. Vallejo, 476 F.2d 667, 669 (3d Cir. 1973). See also United States v. Jerry, 487 F.2d 600, 611 (3d Cir. 1973); United States v. Ptomey, 366 F.2d 759 (3d Cir. 1966). In Vallejo, supra at 669, the court stated that an application to substitute a plea of not guilty on the ground that such substitution seems fair and just should be determined with "reference to surrounding circumstances."
The following relevant factors all indicate that the granting of defendant's motion would not have been fair and just:
A. The failure of the defendant to assert that he was innocent of the charge. See United States v. Washington, 341 F.2d 277, 286 (3d Cir. 1965); Everett v. United States, 119 U.S. App. D.C. 60, 336 F.2d 979 (1964).*fn13
B. The existence of prejudice to the Government through defendant's entering the plea on the day of trial (November 21), when jurors, witnesses and court personnel had been assembled for the trial, and then making the request for withdrawal of the plea several days later (November 26, or thereafter). See Vallejo, supra at 669; United States v. DeCavalcante, 449 F.2d 139, 141 (3d Cir. 1971).
C. The weakness of the reason for withdrawal of the guilty plea. In this case, defendant alleges that he thought on November 21 that the offense of selling and delivering counterfeit obligations (18 U.S.C. § 473) was a misdemeanor, even though he knew it carried a maximum ten years' imprisonment, and that conviction of a felony made his discharge as a Pittsburgh fireman mandatory. Since defendant knew that he might be imprisoned for ten years, it seems clear he must have known he might lose the right to his job as a fireman by the end of that period. At most, his claim must be that he did not know that he would automatically be suspended on entry of his plea.
In similar circumstances, the courts have held that collateral, but foreseeable, adverse consequences of the entry of a plea do not require the allowance of the privilege of plea withdrawal, which, as in this case, had been denied by the trial judge. In United States v. Cariola, 323 F.2d 180, 186 (3d Cir. 1963), this court said:
"To hold that no valid sentence of conviction can be entered under a plea of guilty unless the defendant is first apprised of all collateral legal consequences of the conviction would result in a mass exodus from the federal penitentiaries. The collateral effect of a federal conviction varies, depending upon the offense, and whether state or federal law is involved. State laws are far from uniform. The effect of a conviction as an admission in a later civil action, upon the credibility of the defendant as a witness, his right to vote, his qualification to hold office, its sentencing significance under 'second offender' laws, and its deportation relevance in the case of aliens, are but a few of the areas in which a federal conviction can have important collateral legal significance."
See also United States v. Sambro, 147 U.S. App. D.C. 75, 454 F.2d 918, 920 (1971); Meaton v. United States, 328 F.2d 379, 380 (5th Cir. 1964).*fn14
We conclude that the district court did not abuse its discretion in denying the motion to withdraw the plea.
The January 28, 1975, judgment of the district court will be affirmed.
The January 28, 1975, judgment of the district court will be affirmed.