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UNITED STATES v. HELDON

January 17, 1984

UNITED STATES OF AMERICA
v.
ALAN HELDON



The opinion of the court was delivered by: TROUTMAN

 TROUTMAN, J.

 Contending that his Fifth and Sixth Amendment rights were violated due to the Court's alleged non-compliance with the requirements of FED. R. CRIM. P. 11 and the ineffective assistance of his retained counsel, petitioner Alan Heldon has moved to vacate, set aside or correct his sentence pursuant to 28 U.S.C. ┬ž 2255. *fn1"

 Petitioner was indicted with co-defendants Randy Johnston and Michael Brewer on June 21, 1979. The twenty-eight-count indictment included a charge, in Count 1, of conspiracy to distribute phencyclidine (hereafter PCP). The remaining counts consisted of charges of either distribution or possession with intent to distribute PCP.

 Petitioner pleaded nolo contendere to counts one through seventeen, inclusive, and twenty through twenty-eight, inclusive, on October 16, 1979. On February 13, 1980, he was sentenced, on Counts 1 and 2, to consecutive five-year prison terms. Count 2 also included a two-year special parole term which was to run consecutively to the terms of imprisonment imposed under Counts 1 and 2. In addition, petitioner was sentenced to a five-year term of probation on each of seventeen other counts. The probationary terms were to run concurrently with each other, but consecutively to the sentences imposed under Counts 1 and 2. Lastly, the sentences were to run consecutively to any sentences petitioner may have received in any state court.

 Petitioner's counsel filed a motion for reduction of sentence pursuant to FED. R. CRIM. P. 35 which was granted on September 22, 1980. The Court modified the prison sentences imposed under Counts 1 and 2 to run concurrently with each other. In addition, the probationary terms on each of the remaining counts were reduced to two years and were further modified to run concurrently with the two-year special parole term imposed under Count 2. The Court did not alter its prior mandate that the sentences run consecutively to any state court sentences imposed upon the petitioner.

 Petitioner asserts that the Court violated the strictures of FED. R. CRIM. P. 11 by failing to determine:

 1. whether the petitioner understood the nature of the charge, including the maximum possible penalty under the law;

 2. whether there was a factual basis for the plea;

 3. whether the plea was being entered into voluntarily;

 4. whether the petitioner understood that he had a right to plead not guilty, to be tried by a jury, to confront and cross-examine all witnesses against him, and not to be compelled to incriminate himself;

 5. whether the petitioner understood that the court's acceptance of the plea would result in his waiver of his right to trial; and

 6. whether the petitioner knew that any answers he gave under oath and on the record could later be used against him in a prosecution for perjury.

 Moreover, he contends that the representation he received from his retained counsel amounted to "ineffective assistance" in two respects. First, he argues that he had no choice but to plead nolo contendere due to counsel's inadequate preparation of a defense. He specifically pointed to counsel's alleged failure to conduct an investigation into the evidence supporting the indictment, to interview witnesses, and to do legal research. Secondly, petitioner claims his nolo plea was the product of the faulty advice and misrepresentations of defense counsel particularly in regards to the existence of a plea ...


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