The opinion of the court was delivered by: BY THE COURT; HARVEY BARTLE, III
The issue here presented is whether defendant's July 9, 1979 guilty plea to robbery in the Court of Common Pleas of Philadelphia County was intelligent and voluntary and, if not, whether this Court may consider that conviction in determining the defendant's status as an armed career criminal for sentencing purposes. The Court must also determine whether defendant is a career offender under the Sentencing Guidelines if he is not an armed career criminal.
On February 4, 1992, a jury of this Court found defendant Clarence Glenn guilty, as a prior felon, of possessing a firearm in violation of 18 U.S.C. § 922(g)(1).
Following defendant's conviction, the Government moved to enhance his sentence. This motion was made pursuant to 18 U.S.C. § 924(e) which provides that a defendant convicted of violating 18 U.S.C. § 922(g)(1), who has three prior convictions for specified violent felonies or serious drug offenses, faces a minimum term of 15 years of imprisonment.
The three prior violent felony convictions upon which the Government relies in seeking defendant's designation as an armed career criminal are the following: (1) an April 22, 1979, forcible robbery as to which defendant pleaded guilty on July 9, 1979, in the Court of Common Pleas of Philadelphia County (C.P. 79-04-2239); (2) a November 1, 1979, strong arm robbery as to which defendant was found guilty on August 26, 1980, in the Court of Common Pleas of Philadelphia County (C.P. 79-11-857); and (3) a January 21, 1982, aggravated assault as to which defendant was found guilty on June 17, 1982, also in the Court of Common Pleas of Philadelphia County (C.P. 82-02-2322, 2323 and 2329).
Section 4B1.4 of the November 1, 1990 Sentencing Guidelines Manual, applicable here, mandates an offense level of 33 where a defendant is designated as an armed career criminal under 18 U.S.C. § 924(e). Additionally, because of the defendant's extensive criminal record, the Probation Department has determined that defendant's Criminal History Category under the Sentencing Guidelines is VI.
Based on that combination the applicable guideline imprisonment range is 235 to 293 months. Thus, if Glenn is appropriately designated an armed career criminal under § 924(e), he faces a statutory mandatory minimum prison sentence of 15 years and a minimum guideline sentence of more than 19 years of imprisonment.
Defendant first challenges his designation as an armed career criminal. He contends that the forcible robbery conviction should not be counted since it resulted from his invalid guilty plea on July 9, 1979 before Judge Thomas N. Shiomos (C.P. 79-04-2239). If this conviction is not available for sentencing enhancement purposes, defendant's designation as an armed career criminal fails because of the lack of three prior convictions for violent felonies as required under 18 U.S.C. § 924(e)(1).
Defendant has a right to a hearing on any contested issues of fact in the presentence investigation report. Due process guarantees a convicted criminal defendant the right not to have his sentence based upon 'materially inaccurate' information. See Johnson v. Mississippi, 486 U.S. 578, 590, 108 S. Ct. 1981, 1989 (1988). The presentence report serves as a prima facie showing of fact. If a defendant challenges any fact contained in the report, he has the burden of coming forward with evidence that tends to indicate that the report is incomplete or incorrect. Once a defendant has done so, the Government has the burden of ultimate persuasion by a preponderance of the evidence if it is attempting, as here, to adjust upward defendant's sentence on the ground that he is an armed career criminal. United States v. McDowell, 888 F.2d 285, 290-91 (3d Cir. 1989); United States v. Hope, 906 F.2d 254 (7th Cir. 1990), cert. denied, U.S. , 111 S. Ct. 1640, 113 L. Ed. 2d 735 (1991).
Although the Common Pleas Court made defendant aware of certain rights, the defendant contends that the Court failed to advise him of his right against self-incrimination, his right to remain silent, his right to counsel, the presumption of innocence, and the elements of the offense to which he was pleading guilty. Since the defendant has met its burden of coming forward with evidence to invalidate that conviction, the burden is on the Government to prove the propriety of that guilty plea.
If a defendant did not enter an intelligent and voluntary guilty plea to robbery in July, 1979, his conviction for that offense cannot be used in calculating whether he is an armed career criminal under the Sentencing Guidelines. See United States v. Ferguson, 935 F.2d 862, 866 (7th Cir. 1991), cert. denied, U.S. , 112 S. Ct. 907 (1992). Otherwise, the Court would be enhancing his sentence based on an unconstitutional conviction. Such a result is not permissible. United States v. Brown, 899 F.2d 677 (7th Cir. 1990); see Burgett v. State of Texas, 389 U.S. 109, 115, 88 S. Ct. 258, 262 (1967).
We must therefore determine whether defendant's 1979 guilty plea was intelligent and voluntary. In order to have a constitutional waiver, defendant must at least be made aware of certain fundamental rights to which he is entitled if he should decide to stand trial. Among these are his privilege against self-incrimination,
his right to a jury trial, and his right to confront his accusers. Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712 (1969). While the state court judge explained to defendant certain of his rights before accepting the guilty plea, he did not advise him of his right against self-incrimination - one of the three specific rights to which the Supreme Court referred in Boykin v. Alabama, supra, in determining whether a guilty plea was voluntary and knowing. The failure to mention this critical right, in the context of this case, is fatal to the validity of the guilty plea. The right against self-incrimination is a separate and distinct right apart from all others. That constitutional right prevents the Government from compelling the defendant to testify against his will. The Government may not prove its case out of the mouth of the defendant from his involuntary appearance on the witness stand. See, Ullman v. United States, 350 U.S. 422, 428, 76 S. Ct. 497 (1956); United States v. White, 322 U.S. 694, 698, 64 S. Ct. 1248 (1944).The defendant is also entitled to know, as part of his right to remain silent, that the jury may not draw an inference of guilt from his failure to testify. Cf. Griffen v. California, 380 U.S. 609, 614, 85 S. Ct. 1229 (1965). Contrary to the position of the Government, the fact that the Court advised defendant of the Government's burden of proof beyond a reasonable doubt, and of certain other rights, cannot be deemed imparting to him knowledge of the separate right against compelled testimony. Cf. Gonzales v. Grammer, 655 F. Supp. 1147 (D. Neb. 1987), aff'd, 848 F.2d 894 (8th Cir. 1988).
The Government relies on a February 16, 1979 guilty plea colloquy with defendant before the same Judge Shiomos in support of its position that defendant's July, 1979 guilty plea was voluntary and knowing. Concedingly, on the earlier occasion, Judge Shiomos advised him of his right to remain silent. The Government argues that because defendant was advised of this right some five months earlier, he was aware of it on July 9, 1979 even though not mentioned by Judge Shiomos at that time. The Government's position is not persuasive for a number of reasons. A stale colloquy will not pass muster. It is the Court's responsibility to make thorough inquiry at the time of any guilty plea to satisfy itself that defendant, unlearned in the law, is giving up knowingly and voluntarily certain valuable constitutional rights. We cannot find that this defendant's plea was intelligent and voluntary when he did not have fresh in his mind all the critical factors necessary to make such an important decision.
Even if, however, the defendant could be deemed to have remembered in detail the February, 1979 colloquy when he was advised of his right against self-incrimination, it does not follow that he knew in July, 1979 that he still had such a constitutional right. It is just as likely, if not more likely, that defendant would conclude from the judge's failure to mention that right in July that the right no longer existed. Moreover, it would be anomalous, indeed, to hold a 19 year old defendant with less than a full high school education to have ...