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GILMORE v. ZIMMERMAN

October 10, 1985

IRVIN W. GILMORE
v.
LEROY ZIMMERMAN, Attorney General of the Commonwealth of Pennsylvania



The opinion of the court was delivered by: HUYETT

HUYETT, J

 MEMORANDUM AND ORDER

 Petitioner Irvin W. Gilmore filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 seeking to enjoin a state criminal proceeding pending against him. After reviewing Gilmore's petition, Magistrate Leomporra recommended that the petition for writ of habeas corpus be denied and dismissed without an evidentiary hearing. Judge Leomporra's Report and Recommendation was filed on August 27, 1985.

 After reviewing the Magistrate's Report and Recommendation, petitioner's objections, and the circumstances giving rise to this petition, I agree with the Magistrate's conclusion that the petition for writ of habeas corpus must be denied; I do not, however, entirely, accept the Magistrate's analysis. On September 6, 1985, counsel for petitioner, Emmanuel H. Dimitriou, filed petitioner's objections to Judge Leomporra's Report and Recommendation and requested that I make a de novo determination as to the issues presented in the petition for writ of habeas corpus.

 The facts giving rise to the petition are as follows. On June 19, 1984, a criminal complaint was issued against petitioner Gilmore and he was charged and arrested for criminal homicide, 18 Pa. Cons. Stat. Ann. § 2501; aggravated assault, 18 Pa. Cons. Stat. Ann. § 2702; and recklessly endangering another person, 18 Pa. Cons. Stat. Ann. § 2705. On October 21, 1984, an information was filed. Gilmore waived arraignment and on October 23, 1981 a plea of "not guilty" was entered on his behalf.

 As of January 10, 1983, no plea agreement had been entered into between the Commonwealth and Gilmore. At best there was a report by counsel to Judge Schaeffer that plea discussions were underway. Mr. Haddad told the court that the Commonwealth would make a recommendation as to an appropriate sentence after obtaining a psychological and medical examination of petitioner. Judge Schaeffer then stated that he would accept petitioner's plea and order a presentence report.

 The colloquy before Judge Schaeffer resumed on February 28, 1983. At that time, Mr. Haddad set forth the terms of the plea bargain, and stated that the Commonwealth would accept a plea to involuntary manslaughter and the Commonwealth would recommend a sentence of probation plus the maximum fine of $10,000. Judge Schaeffer, upon hearing the Commonwealth's position, stated that he would not accept the plea bargain. He then gave petitioner the choice between permitting the plea to be an open plea thereby permitting the Judge to sentence him in accordance with the law as he deemed proper or withdrawing his guilty plea. Petitioner, after consulting with his attorney, decided to stand on the plea as previously entered. Judge Schaeffer then proceeded to ask petitioner Gilmore several questions based on inconsistent statements Gilmore had allegedly made to two police officers and which were the basis of the Commonwealth's evidence against Gilmore. Petitioner's counsel objected to the line of questioning whereupon Judge Schaeffer ordered the guilty plea withdrawn and ordered petitioner to stand trial. In his written opinion, Judge Schaeffer held that there had been an insufficient factual basis for him to accept the plea and it was for this reason that he had ordered the plea withdrawn.

 Petitioner Gilmore contends that Judge Schaeffer's actions in withdrawing his guilty plea and ordering him to stand trial violate the constitutional prohibition against double jeopardy. Gilmore claims that Judge Schaeffer accepted his guilty plea and that jeopardy attached to the guilty plea so that he may not now be tried for the crimes with which he was originally charged. In his Report and Recommendation, Judge Leomporra concluded that jeopardy had not attached; he based his conclusion on two alternative grounds. First, he concluded that jeopardy had not attached because petitioner had not yet been put to trial: no jury had been empaneled nor had the court started to hear evidence. In the alternative, Judge Leomporra, relying upon Klobuchir v. Commonwealth of Pennsylvania, 639 F.2d 966 (3d Cir.), cert. denied, 454 U.S. 1031, 70 L. Ed. 2d 474, 102 S. Ct. 566 (1981), held that Gilmore had never been in jeopardy of being convicted of murder because he entered a guilty plea to involuntary manslaughter; therefore there was no double jeopardy violation. Petitioner has filed objections to both grounds of the Report and Recommendation.

 Petitioner filed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Generally, federal habeas corpus is a remedy which is available only post-conviction. Exceptions have been made, however, where "special circumstances" exist, and as Judge Leomporra concluded "special circumstances" exist in this case because forcing petitioner to stand trial would defeat the constitutional right he seeks to preserve. U.S. ex rel. Webb v. Court of Common Pleas, 516 F.2d 1034 (3d Cir. 1975). Neither party has raised any objection to the conclusion that a federal court properly may entertain petitioner's double jeopardy claims in a federal habeas petition at this time, and I will, therefore, approve and adopt this aspect of the Report and Recommendation.

 Petitioner's first objection pertains to the inference created in the Report and Recommendation that jeopardy never attaches to a plea. The Fifth Amendment to the United States Constitution provides: "Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . ." At some point, the constitutional protection against double jeopardy must attach to a guilty plea; otherwise, a defendant could be subject to punishment for the same offense twice. Following a guilty plea, punishment is usually as imminent and inevitable as after a conviction by a jury. In United States v. Jerry, 487 F.2d 600, 606 (3d Cir. 1973), the court held that the defendant "must be considered to have been convicted by the entry of his plea of guilty just as if a jury had found a verdict of guilty against him and jeopardy attached with the acceptance of his guilty plea by the district court." Therefore, to the extent that the Report and Recommendation implies that jeopardy may never attach to a guilty plea, it must be rejected.

 The Magistrate held in the alternative that jeopardy never attached because Gilmore was never faced with the possibility of being convicted for murder. In support of this conclusion, the Magistrate relied upon Klobuchir v. Commonwealth of Pennsylvania, 639 F.2d 966 (3d Cir.), cert. denied, 454 U.S. 1031, 70 L. Ed. 2d 474, 102 S. Ct. 566 (1981), in which the court held that the double jeopardy clause did not bar the state from retrying the defendant on the original first degree murder charge after his plea was withdrawn. The Klobuchir court concluded that when the trial judge accepted the defendant's guilty plea to third degree murder, he could not have considered any greater charge, and therefore the defendant was never in jeopardy of being convicted of first degree murder. An important distinction between Klobuchir and the present case is that in Klobuchir, the defendant had moved post-conviction for relief from his guilty plea while in this case Judge Schaeffer vacated or ordered the withdrawal of petitioner's guilty plea over his objections. In Klobuchir, there was no question that the defendant could be retried for the lesser offense to which the defendant had entered a plea, i.e. third degree murder; jeopardy had not attached to the lesser offense. Rather, the question was whether he could also be tried for the higher offense, and the court held that he could be. In this case, the question petitioner is raising is essentially whether he could even be tried for the lesser offense for which he entered a guilty plea, i.e. whether jeopardy attached to the plea of guilty of involuntary manslaughter. *fn1"

 Petitioner contends that Judge Schaeffer unconditionally accepted his plea on January 10, 1983, that jeopardy attached to that plea, and that Judge Schaeffer's order striking the plea and setting the case for trial violated his fifth amendment protection from further prosecution. Petitioner further contends that a judge is permitted to vacate a guilty plea only in extreme circumstances, and those circumstances did not exist in this case. In this way, petitioner analogizes the vacation of a guilty plea over the objection of the defendant to the declaration of a mistrial when the defendant objects.

 As previously noted, the court in United States v. Jerry, 487 F.2d 600 (3d Cir. 1973) held that jeopardy attaches to a guilty plea which is accepted. *fn2" The questions left open after Jerry and which are raised by the present case are what constitutes acceptance for purposes of double ...


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