Opinion
No. 71-3103. Summary Calendar.
Rule 18, 5th Cir. See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, et al., 5th Cir. 1970, 431 F.2d 409, Part I.
February 25, 1972.
Gary M. Ketchum, Tampa, Fla., for petitioner-appellant.
Michael N. Corin, Asst. Atty. Gen., Robert L. Shevin, Atty. Gen., Tallahassee, Fla., for respondent-appellee.
Appeal from the United States District Court for the Middle District of Florida.
Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.
Wilbur M. Johnson represented by privately retained counsel pled guilty in a Florida court to a charge of breaking and entering. He was sentenced to fifteen years imprisonment and no direct appeal was taken. Thereafter, he made several unsuccessful efforts to obtain state post-conviction relief. He subsequently sought habeas corpus relief in the United States District Court upon two grounds: (1) that his plea of guilty was involuntary because both the trial court and his privately retained counsel had erroneously advised him that the maximum sentence was fifteen years when in fact it was twenty years, and (2) that he was not advised of his right to appeal and of his right to the assistance of appointed counsel on appeal. The writ was initially denied for failure to exhaust state remedies. After Johnson returned to the state courts but failed to appeal the state trial court's denial of his motion to vacate, the district court again refused to hear the case until all state remedies had been exhausted.
Thereafter the Florida court of appeals affirmed the denial of his motion to vacate. The United States District Court then ordered the United States Magistrate to conduct an evidentiary hearing. A hearing was held after which the magistrate concluded that the erroneous advice given Johnson did not render his plea involuntary and that if there was error it was harmless. Based upon the findings of fact and the conclusions of law of the magistrate as well as upon his own independent examination of the record, the district court denied the writ. Appointed counsel has skillfully presented his client's case in this court, but skill cannot overcome both facts and law which compel a denial of relief. We affirm.
In Eakes v. United States this court expressly held that a plea of guilty is not rendered involuntary merely because a defendant received a lesser sentence than either that which he was informed the district court could impose or the maximum sentence provided by law. This court followed Eakes in United States v. Woodall expressly overruling two prior decisions of the court which were in conflict. In Woodall the appellant sought to set aside his guilty plea alleging that he was misinformed that the sentences under each count of the indictment could be pyramided. Sitting en banc, this court held that even accepting arguendo Woodall's version of the facts, his claim was without merit. The court weighed the effect of the advice as to the harsher punishment on Woodall's decision and concluded that the likelihood that it would have no effect outweighed the possibility that the prospect of greater punishment would have caused a change in his plea.
391 F.2d 287 (5th Cir. 1968).
438 F.2d 1317 (5th Cir. 1970) (en banc), cert. denied, 403 U.S. 933, 91 S.Ct. 2262, 29 L.Ed.2d 712 (1971).
Stephen v. United States, 426 F.2d 257 (5th Cir. 1970); Grant v. United States, 424 F.2d 273 (5th Cir. 1970).
Here Johnson was incorrectly advised that the maximum sentence was less than that authorized by law. But his sentence was equal to that which he had been told and less than the statutory maximum. Under such circumstances we think the Woodall rationale is controlling. The likelihood that the knowledge that the maximum sentence was twenty years instead of fifteen years would have caused Johnson to change his plea is so improbable as to be without legal significance.
The district court did not comment on Johnson's other contention. However, the record fully supports the district court's denial of relief. Johnson rests this portion of his argument largely on Swenson v. Bosler. In Swenson the Supreme Court declared unconstitutional a Missouri procedure which did not provide counsel for indigent appeals. Although the Court found that the record demonstrated that the trial court was sufficiently informed of the defendant's desire for counsel on appeal, the Court went on to state that the absence of a request would not constitute a waiver of the defendant's rights. But the Court did not establish a per se rule that trial courts must inquire of defendants whether they desire to appeal or are indigent and desire the assistance of appointed counsel. Instead, the Court said a waiver of the right to the appointment of appellate counsel would not be inferred "[w]hen a defendant whose indigency and desire to appeal are manifest" simply because the defendant made no request for counsel.
386 U.S. 258, 87 S.Ct. 996, 18 L.Ed.2d 33 (1967).
In the instant case the record shows that Johnson was represented at trial by privately retained counsel. No facts are alleged which indicate that the trial court was aware or should have been aware that Johnson would not continue to be represented by privately retained counsel if he chose to appeal. There is no indication that any responsible state official had knowledge that Johnson was or claimed to be an indigent and desired appointed counsel on his appeal. Furthermore, Johnson pled guilty. Under such circumstances there would have been no apparent reason to appeal and the trial court was under no constitutional obligation to advise Johnson of the right to a direct appeal, or to the right of appointed counsel on appeal.
Worts v. Dutton, 395 F.2d 341 (5th Cir. 1968); Horsley v. Simpson, 400 F.2d 708 (5th Cir. 1968).
See Sexton v. United States, 446 F.2d 862 (5th Cir. 1971); Giles v. Beto, 437 F.2d 192 (5th Cir. 1971).
Affirmed.