Appeal from the United States District Court for the District of New Jersey. D.C. Crim. No. 75-60.
Van Dusen, Gibbons and Rosenn, Circuit Judges.
Van Dusen, Circuit Judge.
This appeal challenges a July 16, 1975, judgment and commitment entered as a result of defendant-appellant's guilty plea to Count I of a two-count indictment. The indictment charged the defendant and a co-defendant with unlawfully taking by force $22,865. from the Atlantic National Bank in Pleasantville, New Jersey, in violation of 18 U.S.C. § 2113(a) and § 2. As more fully set forth below, we remand for a hearing on defendant's claim that he had ineffective assistance of counsel at the time of the entry of his guilty plea.
The pertinent facts are as follows. On February 20, 1975, defendant-appellant Ronald Corbitt, who was represented by appointed counsel, entered a not guilty plea to Counts I and II of the above indictment. Subsequently defendant voiced complaints that his appointed counsel was not properly representing him. As a result, James Herman, Esq. was ordered to be substituted as counsel on April 25, 1975.
In early May, defendant's new counsel, Mr. Herman, filed motions to suppress (1) the testimony of an F.B.I. agent to whom Corbitt had allegedly conceded his participation in the robbery, as well as a written report by the agent confirming the admission, and (2) certain identification testimony and other allegedly inadmissible evidence. On May 7, 1975, after a suppression hearing conducted over a three-day period, following the selection and swearing of the jury, the trial judge denied the motions to suppress. Later on the same day, Mr. Herman, as counsel for Corbitt, moved for a withdrawal of the not guilty plea and entry of a guilty plea to Count I of the indictment, using, inter alia, this language:
"Yes, Your Honor. Late yesterday afternoon and early this morning I had an opportunity to confer with my client concerning the status of criminal indictment 75-60, and he has indicated to me that he wishes to retract his plea of not guilty and to enter a plea of guilty to violation of Title 18, United States Code, Section 2113(a).
"It is my understanding that the Government would at the time of sentencing move for dismissal of Count Two of that indictment, which is the count pertaining to armed bank robbery.
"Your Honor, it is our further understanding that there is presently pending a federal check charge of obtaining money under false pretenses against Mr. Corbitt arising out of the Atlantic City Federal Postal Department. I don't have any information about this particular check charge, but Mr. Corbitt would desire to plead to an Information as to that charge and be sentenced at the same time for both this bank robbery indictment and the information on the check charges, and it is our further understanding that he would receive a concurrent sentence on the check charge to the sentence that would be imposed on the bank charge."*fn1
Subsequently, Corbitt filed a motion to withdraw his guilty plea to Count I. This motion came before the court on July 16, 1975. At that time, his counsel (Mr. Herman) made these statements, inter alia :*fn2
" Mr. Herman: The point that Mr. Corbitt made was that I gave him certain advice in regards to appeal rights, and that I failed to advise him adequately as to waiver of certain issues on appeal that would be the result of entering a guilty plea. At the time that the plea retraction was entered and the guilty plea entered to Count No. 1 of this indictment, I had discussed with Mr. Corbitt the fact that he would still have appeal rights. We did not specifically discuss the issue of certain rights and appeals of certain issues.
"It is, of course, the law that by entering a plea of guilty, you do waive the majority of rights to appeal a certain specific issue and you may be limited to issue collaterally attached to the guilty plea.
"It was at the time the guilty plea was entered he stated on the record that the plea was, in part, the voir dire, and the testimony of the witnesses on voir dire was, in part, the result of our having just then received some discovery which we had never had before. It was, in part, the result of your Honor's decisions as to identification statement issues that were presented in voir dire, and it was my hope that in so doing I would preserve those issues by stating on the record that they were specifically elements that entered into Mr. Corbitt's decision to enter his plea of guilty to this charge. It was my hope that in the event that this matter was appealed, that the guilty plea was appealed, that Mr. Corbitt would be allowed to pursue those issues on his appeal.
"This is the basis of Mr. Corbitt's contentions in his motion, as far as I am concerned, is that he felt he was not fully and ...