UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
filed: November 22, 1977.
EARL BROWN, APPELLANT
UNITED STATES OF AMERICA
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA C.A. No. 76-859
Before: ADAMS and GARTH, Circuit Judges, and LAYTON, District Judge.*fn*
Petitioner Earl Brown appeals from an order of the district court, issued without an evidentiary hearing, denying a motion to vacate his sentence. Because the record fails to show conclusively that the petitioner is not entitled to relief, we reverse and remand for a further proceeding.*fn1
On December 20, 1974, Brown pleaded guilty to bank robbery and received a fifteen year sentence. Two weeks later he pleaded guilty to three new robbery charges, and was sentenced to three concurrent fifteen year terms that were to be served consecutively with the December 20th sentence.
Taken in its entirety, Brown's pro se petition charges (a) that the second guilty plea was induced by a plea bargain struck between petitioner and his attorney, on the one hand, and the government, on the other; and (b) that under the terms of the alleged agreement all sentences were to be served concurrently. Without any hearing, the district court adopted the finding by the magistrate that the record at the plea hearing conclusively demonstrated the absence of plea negotiations.*fn2 This finding was erroneous under the standards promulgated by this Court in United States v. Hawthorne, 502 F.2d 1183 (3d Cir. 1974).
In Hawthorne we stated that the record established by a Rule 11 inquiry at a plea reception proceeding may obviate the necessity of a hearing if it discloses that:
(1) the defendant states that no promise, representation, agreement or understanding was made or that none other than that disclosed in open court was made to him by any person prior to the entry of the plea, and (2) the defendant affirmatively states that no out-of-court promise, representation, agreement or understanding required the defendant to respond untruthfully or contrary to the terms thereof in the in-court plea reception proceedings, and (3) that the defendant understands that he may not at a later time contend that any promise, representation, agreement or understanding was made by any person other than that set forth in open court.
(502 F.2d at 1187-88).
Hawthorne also urged the district courts to inform defendants that plea bargaining is an approved procedure which may be revealed without fear of disapproval,*fn3 and recommended that trial judges question counsel for the defense and the prosecution, in the defendant's presence, about the existence of plea negotiations (502 F.2d at 1187).*fn4
Although the trial judge in this case repeatedly asked Brown if any promises had been made as to sentencing and was assured both by Brown and by counsel that no sentencing arrangements existed, the record established by the plea reception proceeding was not conclusive:*fn5 the trial judge did not ask if Brown had been instructed to respond untruthfully; he did not admonish Brown that he could not later assert the existence of plea negotiations; and he did not specifically state that the court approved of plea bargaining or emphasize that Brown had freedom to disclose such negotiations without fear of reprisal.
The trial judge's probe into the existence of plea negotiations thus did not conform to the tripartite interrogation set forth in Hawthorne. Although insistence upon adherence to the inquiry delineated in Hawthorne may appear to some to require compliance with an empty ritual, it nonetheless brings us one step closer to the elusive goal of assuring that there has been in fact a voluntary plea. Moreover, Hawthorne represents a considered judgment that failure to follow such guidelines tends to further embroil trial courts, and ultimately the appellate courts, in § 2255 litigation which might otherwise be avoided.
Accordingly, the judgment of the district court is vacated and the case remanded for proceedings consistent with this opinion.*fn6