left open after Jerry and which are raised by the present case are what constitutes acceptance for purposes of double jeopardy and does jeopardy attach automatically or irrevocably when a plea is accepted.
In U.S. ex rel. Metz v. Maroney, 404 F.2d 233 (3d Cir. 1968), the court held that the state trial court properly acted in setting aside the guilty plea without the consent of the defendant at the time of sentencing because the defendant made statements then which, if true, constituted a complete defense to the charge of murder. Analogizing the situation to that in which a trial judge believes that an involuntary mistrial should be declared because of manifest necessity, the court held that, under the circumstances, requiring the defendant to stand trial on a plea of not guilty did not violate the constitutional prohibition against double jeopardy. The court concluded that fundamental fairness and the interests of justice warranted the state judge's actions. Id. at 236-37. In U.S. v. Hecht, 638 F.2d 651 (3d Cir. 1981), the court held that the trial court erred in vacating the plea because there was a sufficient factual basis for the guilty plea. The court, therefore, ordered the plea reinstated.
The Metz and Hecht cases suggest that a trial judge's discretion in accepting or rejecting a plea agreement is limited, and that his actions may have double jeopardy ramifications. They further suggest that acceptance of a guilty plea is not irrevocable. Under certain circumstances, a trial judge will be justified in vacating a plea if he becomes aware that there is an insufficient factual basis for the plea.
In United States v. Cruz, 709 F.2d 111, 114 (1st Cir. 1983), the court held that jeopardy does not attach automatically and irrevocably in all instance when a guilty plea is accepted. Like the Metz court, the Cruz court analogized the judicial withdrawal of a previously accepted guilty plea to the judicial declaration of a mistrial and suggested that the reasonable approach to these situations would be to hold that jeopardy attaches upon acceptance of the guilty plea, but that the district court may rescind its acceptance at any time before sentencing and judgment upon the showing of "manifest necessity." The Cruz court went on to hold, however, that it was unnecessary to reach this standard because the district court had violated Federal Rules of Criminal Procedure 11(e) and 32(c) by vacating the plea solely on the basis of information in the presentence report.
The Pennsylvania courts in their various rulings have implicitly held that Judge Schaeffer did not violate state procedural rules in ordering the withdrawal of Gilmore's guilty plea. Therefore, the question becomes that which the Cruz court did not reach, i.e. whether jeopardy attached irrevocably on January 10, 1983 when Judge Schaeffer stated that he would accept Gilmore's plea or whether he acted properly in rescinding the plea prior to sentencing because there was manifest necessity for such action.
Because I believe that Judge Schaeffer's actions were justified, Gilmore's petition for writ of habeas corpus must be denied. First, it would appear that Judge Schaeffer's comments at the January 10, 1983 plea hearing did not constitute an unequivocal acceptance of the plea. The plea bargain between Gilmore and the Commonwealth was only in the discussion stage as of January 10, 1983, and it was not until the February 28th hearing that the Commonwealth outlined the bargain for the court. More importantly, however, even if Judge Schaeffer did accept the plea on January 10, 1983, the lack of factual basis for the plea warranted his order withdrawing the plea before sentencing on February 28, 1983.
Addressing the issue of what constitutes a voluntary and intelligently made plea, the Supreme Court in North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162, 91 S. Ct. 160 (1970), held that a defendant's guilty plea was not rendered constitutionally invalid because the defendant protested his innocence as long as there was a strong factual basis for the plea presented by the state. "When his plea is viewed in light of the evidence against him, which substantially negated his claim of innocence and which further provided a means by which the judge could test whether the plea was being intelligently entered, . . ., its validity cannot be seriously questioned." Id. at 38. In cases since Alford, courts have held that a judge may commit constitutional error if he accepts a guilty plea when defendant's admission of guilt is equivocal, and a sufficient factual basis is lacking. See U.S. v. Hecht, 638 F.2d 651, 653 (3d Cir. 1981); Willett v. State of Georgia, 608 F.2d 538, 540 (5th Cir. 1979); United States ex rel. Dunn v. Casscles, 494 F.2d 397, 399-400 (2d Cir. 1974).
Throughout the plea colloquy on January 10, 1983, Gilmore's attorney, Emmanuel Dimitriou, repeatedly emphasized that Gilmore was not admitting his guilt and that, in fact, he had no recollection of any of the acts related to the alleged incident as a result of his consumption of alcohol and his physical exhaustion at the time. Petitioner's Exhibit A, at 7-8, 10. Therefore, the only factual basis for the plea were the facts Mr. Haddad, for the Commonwealth, stated would have been presented at trial. These were limited to facts about the cause of death, i.e., blood alcohol level and blood meperidine level of decedent and two conflicting statements petitioner had allegedly made as to his involvement in the events which led to his wife's death. One was a statement to Trooper Pease that he had injected his wife with a vitamin and meperidine combination; the second was a statement to Chief Harley Smith in which Gilmore denied having made any injections. Petitioner's Exhibit A, at 5-7.
On February 28, 1983, after rejecting the plea bargain and the recommendation of probation and a $10,000 fine, Judge Schaeffer attempted to engage in a colloquy with petitioner about the alleged admissions to Trooper Pease which were the basis of the Commonwealth's case against him. At this point, counsel for petitioner objected to any questioning by the judge stating that he had advised his client that his open plea was based on the record as it had already been established and that additional colloquy was unnecessary. Id. at 7. Judge Schaeffer then promptly ordered the plea withdrawn.
While it may have been preferable for Judge Schaeffer to elaborate on the reasons for his actions on the record at the time, I do not think his failure to do so affects the validity of his actions, and I accept and agree with his conclusion that there was an inadequate factual basis to support petitioner's guilty plea. The primary evidence pointing to petitioner's guilt were the admissions he allegedly made to Trooper Pease to the effect that he had injected his wife with meperidine. Yet, at the plea hearings, petitioner was adamant that he was not admitting his guilt. He also refused, through his counsel, in response to Judge Schaeffer's questions, to acknowledge making any statements to Trooper Pease. Without verification of these statements at a minimum which could come only from the lips of petitioner, there was an insufficient basis for the plea. Statements which petitioner never admitted having made and the circumstances of which are unclear, are simply insufficient to support the guilty plea under North Carolina v. Alford, 400 U.S. 25 at 27, 27 L. Ed. 2d 162, 91 S. Ct. 160 (1970), and its progeny. It is unclear from the record presented to me when petitioner allegedly made his conflicting statements; it is also unclear what petitioner's mental and physical condition was at the time he allegedly made the statements. Finally, petitioner's statement in which he allegedly admitted to injecting his wife with meperidine does not include a statement as to what time frame his admission covered, i.e. immediately prior to her death or several days before.
Therefore, jeopardy had not attached irrevocably to the plea to involuntary manslaughter entered by petitioner. And Judge Schaeffer, in ordering petitioner's guilty plea to be withdrawn and petitioner to stand trial, did not expose petitioner to a violation of the constitutional prohibition against double jeopardy for the involuntary manslaughter charge. Furthermore, under Klobuchir v. Commonwealth of Pennsylvania, 639 F.2d 966 (3d Cir.), cert. denied, 454 U.S. 1031, 102 S. Ct. 566, 70 L. Ed. 2d 474 (1981), jeopardy has not attached to the higher offense with which petitioner was charged.
An appropriate order follows.
O R D E R
NOW, October 10, 1985, upon consideration of petitioner Gilmore's petition for writ of habeas corpus, petitioner's objections to the Report and Recommendation of United States Magistrate Tullio Gene Leomporra, and for the reasons stated in the accompanying memorandum, IT IS ORDERED that the petition for writ of habeas corpus is DENIED and DISMISSED WITHOUT AN EVIDENTIARY HEARING.
There is no probable cause for appeal.