Barnett, Charles Edward

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Volume 67 | Issue 2 Article 5February 1965Criminal Law--Knowledge of Consequences ofPlea of GuiltyCharles Edward BarnettWest Virginia University College of LawFollow this and additional works at: https://researchrepository.wvu.edu/wvlrPart of the Criminal Law CommonsThis Case Comment is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been acceptedfor inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contactian.harmon@mail.wvu.edu.Recommended CitationCharles E. Barnett, Criminal Law--Knowledge of Consequences of Plea of Guilty, 67 W. Va. L. Rev. (1965).Available at: https://researchrepository.wvu.edu/wvlr/vol67/iss2/5West Virginia Law ReviewPublished by the College of Law of West Virginia University. Officialpublication of The West Virginia Bar AssociationSTUDENT BOARD OF EDITORSJohn Ralph Lukens, Editor in ChiefFred Adkins, Associate EditorVictor Alfred Barone, Associate EditorWard Day Stone, Jr., Associate EditorBoyd Lee Warner, Associate EditorCharles Edward Barnett Charles Marion Love, IIIRalph Judy Bean, Jr. John Payne SchererFrank Cuomo, Jr. Larry Lynn SkeenDavid Gail Hanlon William Walter SmithCharles Ellsworth Heilmann Robert Willis WalkerLester Clay Hess, Jr. Robin WisemanDennis Raymond LewisWillard D. Lorensen, Faculty Editor in ChargeAgnes A. Furman, Business ManagerCASE COMMENTSCriminal Law - Knowledge of Consequencesto Plea of GuiltyD pleaded guilty to interstate transportation of a stolen vehicle,after being told the maximum penalty was five years imprison-ment. D was sentenced to an indefinite term under the FederalYouth Correction Act, 18 U.S.C. § 5010, which provided a maximumof six years confinement. At the end of five years, D moved to havethe sentence vacated, under 28 U.S.C. § 2255 (1949). D contendedthe court had violated Rule 11 of the Federal Rules of CriminalProcedure, which provides that the trial court "shall not accept aplea of guilty without first determining that the plea is made volun-tarily with understanding of the charge." D's motion was denied.Held, affirmed, in a short per curiam opinion without discussion ofthe merits of D's motion. A dissenting judge held that Rule 11had been violated, and that D was entitled to the relief sought.Marvel v. United States, 335 F.2d 101 (5th Cir. 1964).[141]1Barnett: Criminal Law--Knowledge of Consequences of Plea of GuiltyPublished by The Research Repository @ WVU, 1965WEST VIRGINIA LAW REVIEWThe court's position in the principal case differs from that takenby other circuits. In an earlier case in the fourth circuit, under analmost identical set of facts, the petitioner moved to have hissentence set aside, and the appellate court remanded the case fora hearing on petitioner's claim. Petitioner alleged that he had beentold his maximum imprisonment could only be five years, withoutbeing told he could be confined under the Youth CorrectionAct for a longer period. The court held that if the petitioner couldestablish as true the facts alleged, he would be entitled to reliefunder 28 U.S.C. § 2255. The court said that "understanding of thenature of the charge," as used in Rule 11, cannot be interpreted tomean anything less than a complete understanding of the possiblesentence. Pilkington v. United States, 315 F.2d 204 (4th Cir. 1963).The conflict between the principal case and the Pilkington caseraises a question with definite constitutional overtones. In bothcases the petitioners contended only that Rule 11 had beenviolated, without suggesting that this was also a violation of theirconstitutional rights. However, the underlying issue here wouldseem to be whether "due process," as provided for in the fifth andfourteenth amendments to the federal constitution, is violated whena defendant is convicted upon his plea of guilty, and he is notaware of the maximum penalty or penalties which may be imposedupon his conviction. This question seems never to have beensquarely answered by the United States Supreme Court.Many cases have reached the Court where the defendant hadpleaded guilty without full knowledge of the consequences of hisplea. E.g., Von Moltke v. Gillis, 332 U.S. 708 (1947); Smith v.O'Grady, 312 U.S. 329 (1941). Although the Court has always heldthese convictions were obtained in violation of constitutionalguarantees, there have always been other important issues presentwhich have held the Court's attention. A majority of these casesinvolved a denial of counsel, or an unintelligent waiver of counsel,and the Court has stressed this lack of counsel, with only a passingreference made to the fact that the defendant did not know theconsequences of his plea. As a result, it is impossible to saywith certainty that the Court has held that a conviction based upona plea of guilty, without the defendant's full knowledge of themaximum penalties prescribed, would of itself, be sufficient groundsfor setting aside the conviction, or vacating the sentence. In Smith[Vol. 672West Virginia Law Review, Vol. 67, Iss. 2 [1965], Art. 5https://researchrepository.wvu.edu/wvlr/vol67/iss2/5CASE COMMENTSv. O'Grady, supra, the Court stated that notice of the charge againstthe defendant was the first and most universally recognized require-ment of due process. However, the Court did not amplify thisstatement to say whether knowledge of the nature of the chargemust include knowledge of the maximum penalties prescribed forthe offense.The sixth amendment to the federal constitution provides that,"In all criminal prosecutions, the accused shall be ... informed ofthe nature and cause of the accusation. . ." This requirement hasgenerally been held to be satisfied if (1) the defendant is furnishedwith sufficient information to enable him to make his defense andavail himself of conviction or acquittal for protection againstprosecution for the same cause, and (2) to inform the court of thefacts alleged, so that it might decide whether they are sufficientat law to support conviction, if one should be had. United Statesv. Seeger, 303 F.2d 478 (2d Cir. 1962). It could be argued thata liberal interpretation of the sixth amendment should lead to theconclusion that the "nature of the accusation" includes informationas to the possible consequences of conviction. It is the very similarlanguage found in Rule 11 which the court used to justify itsholding in Pilkington v. United States, supra.Although the United States Supreme Court has not answeredthe question with finality, the language it has used in many of thecases where the question has been raised, and the holdings of thegreat majority of the lower federal courts, would seem to indicatethat on a plea of guilty, knowledge of the prescribed penalties isa requirement of due process. Carter v. United States, 306 F.2d283 (D.C. Cir. 1962); United States v. Lester, 247 F.2d 496 (2d Cir.1957). However, it does not necessarily follow that the court mustitself inform the accused of the prescribed penalties. The defendantis not prejudiced by the court's failure to inform him of the pos-sible consequences of his plea, if, in fact, the defendant is fullyaware of, and fully understands, the penalties prescribed at the timehe enters his plea. United States v. Lo Duca, 274 F.2d 57 (2d Cir.1960); Bergen v. United States, 145 F.2d 181 (8th Cir. 1944).This comment has not considered those cases wherein an accusedpleads guilty with full knowledge of the prescribed penalties, butwho is disappointed with the severity of the sentence actually im-posed. Generally, unless other factors are present, the disappoint-1965]3Barnett: Criminal Law--Knowledge of Consequences of Plea of GuiltyPublished by The Research Repository @ WVU, 1965WEST VIRGINIA LAW REVIEWment alone is not sufficient grounds for setting aside the judg-ment. United States v. Norstrand Corp., 168 F.2d 481 (2d Cir.1948). Neither has this comment touched upon those cases wherean accused enters a plea of guilty with full knowledge of the penal-ties prescribed for the crime with which he is charged, but whois quite unaware of the important and often harsh collateral con-sequences which may frequently flow from a conviction, e.g., de-portation, sentencing under habitual criminal laws, loss of civilrights, etc. Although these collateral consequences are much moreapt to take the accused unaware, and many times are more harshthan the penalty for the crime itself, the courts are not concernedwith these extraneous consequences, and generally refuse to giveany relief in these cases. United States v. Parrino, 212 F.2d 919 (2dCir. 1954), cert. denied, 348 U.S. 840 (1954).The courts of most of the states have held that a plea of guilty isvalid only when made with full awareness of the maximum legalpenalties which might be imposed. Some states appear to makea distinction between a capital offense and a lesser crime, or be-tween a felony and a misdemeanor. Burton v. State, 112 Tex. Crim.334, 16 S.W.2d 828 (1929). Some states have statutes which placean affirmative duty on the court to explain the consequences of aplea of guilty. See, e.g., CoL. Ray. STAT. ch. 39, art. 7, § 8 (1953);ILL. REv. STAT. ch. 38, § 732 (1959).West Virginia would seem to agree with the majority view. InState v. Hill, 81 W. Va. 676, 95 S.E. 21 (1918), the court said thatno plea of guilty should be accepted in a capital case until the de-fendant has been warned and cautioned of the consequences ofhis act, and until the court is satisfied that the defendant under-stands and appreciates the same. This case was cited with approvalin In re State ex rel. Eplin, 132 W. Va. 610, 53 S.E.2d 614 (1949),where the court said that although the Hill case had referred to acapital offense, the same protection should also be afforded thoseaccused of a lesser crime. Although the court did not say whetherthey were thinking of misdemeanors, it is quite possible they were,because the opinion spoke only of "criminal cases." The courtwas careful to point out, however, that before it would constitutereversible error, it must first appear that the defendant's guilty pleawas entered "under some mistake, misapprehension, compulsion, orinducement, or circumstance, working injustice."[Vol. 674West Virginia Law Review, Vol. 67, Iss. 2 [1965], Art. 5https://researchrepository.wvu.edu/wvlr/vol67/iss2/5CASE COMMENTSIn a later case, Boggess v. Briers, 134 W. Va. 370, 59 S.E.2d 480(1950), the court said the trial court was under no duty to advisethe defendant of the possible punishment his plea of guilty mightentail. The court said that "whatever may be the rule in somecourts, there is no such requirement in the courts of this state."However, in this case, the court pointed out that the defendantwas himself an attorney, and had competent counsel by his sidewhen he entered his plea. Other evidence also refuted the idea thatthe defendant had entered his plea in ignorance of the con-sequences. Accord, State ex rel. Post v. Boles, 124 S.E.2d 697(W. Va. 1962).In conclusion, it would seem that the requirements of "due pro-cess" are not met where an accused is permitted to plead guiltyto a criminal charge without being aware of the direct penaltieswhich might legally be imposed following the conviction. Theconcepts of justice and fair play to which the courts so frequentlyrefer in defining "due process" would seem to dictate such a con-clusion. With the United States Supreme Court's present tendencyto extend increasingly greater safeguards to those accused of crime,it seems likely that a case similar to the principal case will soonreach the Court. If and when it does, it is probable the Court willhold that the petitioner was denied "due process" in being permittedto plead guilty under a misapprehension, honestly held, of themaximum prescribed period of confinement.Charles Edward BarnettContracts--Holder's Liability forUnauthorized Purchases on Credit CardD's credit card was lost or stolen by an unknown imposter whoused it to incur substantial charges before the required notice ofthe loss was given to P, the issuer of the card. P paid the merchantsfor the charges and sought recovery from the D under the termsset out on the back of the card, holding the issuee liable for allpurchases made prior to the issuer's receiving notice of the lossor theft of the card. Held, recovery denied. A cardholder is not ab-solutely liable. The issuer and the merchants each owe a duty ofreasonable care to prevent improper charges from being made. Pfailed to show that either it or the merchants were free from1965]5Barnett: Criminal Law--Knowledge of Consequences of Plea of GuiltyPublished by The Research Repository @ WVU, 1965

Criminal Law--Knowledge of Consequences of Plea of Guilty

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Criminal Law--Knowledge of Consequences of Plea of Guilty

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