Paul Handy NUNLEY, Appellant, v. UNITED STATES of America, Appellee

United States Court of Appeals for the Tenth Circuit1961-08-11No. No. 6771

294 F.2d 579

Summary · law.co

Holding. The court affirmed the denial of habeas relief, holding that although formal compliance with pleading procedures is important, the absence of an express judicial determination of voluntariness does not invalidate a guilty plea when the record shows the defendant was aware of the charges, understood the consequences, received competent counsel, and voluntarily entered the plea.

Nunley sought collateral relief for a second time under federal habeas procedures, challenging his 30-year consecutive sentence for drug offenses. He argued that the trial court violated criminal procedure rules by failing to explicitly determine that his guilty plea was entered voluntarily. A new judge conducted a hearing after the original sentencing judge's death and made comprehensive findings that Nunley's plea was voluntary, intelligent, and made with full understanding of the charges against him.

The court found ample evidence supporting the voluntariness of the plea. Nunley had prior criminal experience, had consulted with multiple attorneys before pleading guilty, waited over 30 days without attempting to withdraw his plea, and was clearly informed of the charges and potential penalties at arraignment. Although the original sentencing judge had not made an explicit on-the-record determination of voluntariness, the circumstances abundantly demonstrated that Nunley understood what he was doing and acted of his own free will.

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Key issues

Whether trial court's failure to make explicit finding of voluntary plea violates Federal Rules of Criminal Procedure Rule 11
Whether circumstantial evidence of voluntariness suffices absent express judicial determination
Whether defendant's criminal experience and consultation with counsel support knowing and voluntary plea

Procedural posture

Nunley appealed the denial of his second motion for collateral relief under 28 U.S.C. § 2255, challenging the voluntariness of his guilty plea.

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Opinion · public domain

majority opinion

PER CURIAM.

On his plea of guilty appellant Nunley was sentenced to consecutive terms totaling 30 years for various narcotic offenses. For the second time he seeks relief under 28 U.S.C. § 2255. On his first application he contended that he was not mentally competent at the time of the entry of the guilty plea and that he was not represented by competent and effective counsel. This court affirmed the trial court’s denial of relief and held that the conviction could not be collaterally attacked on the ground of insanity at the time of the commission of the offense or at the time of conviction; that he was represented by competent counsel at the time of arraignment; and that he competently and intelligently waived counsel at the time of the sentence.

Nunley now seeks relief on the ground that the trial court failed to make a determination that the guilty plea was made voluntarily and, hence, violated Rule 11, F.R.Crim.P., 18 U.S.C.A. As the sentencing judge died prior to the filing of the second § 2255 motion, it was heard by another judge who appointed an attorney for Nunley and who conducted a hearing at which Nunley testified. The court entered comprehensive findings of fact specifically stating that the guilty plea was made voluntarily, intelligently, and with understanding of the nature of the charges. These find ings are supported by substantial evidence and are not clearly erroneous.

Nunley, who had four prior felony convictions, consulted with four attorneys before entering his plea. Over 30 days intervened between the entry of the plea and the sentence. During that period Nunley made no effort to change his plea. The transcript of the arraignment and sentencing proceedings shows that Nunley was advised of the nature of the charges and of the possible penalties. In response to a question of the court as to whether he wanted to plead guilty he replied, “Plead guilty.” His court-appointed counsel, whom this court has previously held to have represented him competently and effectively, said that Nunley wanted to plead guilty. While the sentencing court made no express determination that the guilty plea was entered voluntarily, it adequately appears that Nunley knew the nature of the charges, did not act under any coercion, promises or threats, understood the possible penalties, and was well aware of the entire situation in which he was placed.

Rule 11 does not require any ritualistic ceremonial. A sentencing court does not have to conduct a hearing and make a finding showing compliance with the rule before accepting any guilty plea. If there is any aspect of the situation which suggests that the requirements of the rule are not satisfied, appropriate inquiry must be made. That is not the case here. The accused, experienced in the ways of criminal proceedings and represented by able counsel, was properly advised of the charges and the consequent possibilities. This is not a case like United States v. Lester, 2 Cir., 247 F.2d 496, where the accused was not represented by counsel and where the judge to whom application for relief was made failed to ascertain whether the guilty plea was entered in compliance with the rule. Here the trial court held “a thorough hearing in which it was abundantly proved that the defendant’s plea was made with knowledge and volition.”

Affirmed.

. Nunley v. United States, 10 Cir., 283 F.2d 651.

. Cf. United States v. Davis, 7 Cir., 212 F.2d 264, 267.

. Gundlach v. United States, 4 Cir., 202 F.2d 72, 76, certiorari denied 360 U.S. 904, 79 S.Ct. 1283, 3 L.Ed.2d 1255. See also Edwards v. United States, 103 U.S.App.D.C. 152, 256 F.2d 707, certiorari denied 35S U.S. 847, 79 S.Ct. 74, 3 L.Ed.2d 82, and United States v. Swaggerty, 7 Cir., 218 F.2d 875, certiorari denied 349 U.S. 959, 75 S.Ct. 889, 99 L.Ed. 1282.