Cherrie v. United States, 179 F.2d 94, 10th Cir. (1949)
Cherrie v. United States, 179 F.2d 94, 10th Cir. (1949)
Cherrie v. United States, 179 F.2d 94, 10th Cir. (1949)
2d 94
CHERRIE
v.
UNITED STATES.
No. 3977.
This is an appeal from the denial of a motion filed under 28 U.S.C.A. 2255 to
vacate a sentence of imprisonment.
On the same day, an information was filed. It contained four counts, each
charging a violation of 18 U.S.C.A. 415 [now 2314]. Cherrie was brought
before the court, and the following colloquy occurred between the court and
Cherrie:
"The Court: * * * You are held under a charge of transporting a falsely made
security, a check dated October 5, 1945, drawn on the United States National
Bank, Denver, Colorado, payable to P. J. Ryan, signed by M. F. Johnson for the
7* * * * * *
8
"The Court: Are you ready to plead to this information of which I have
heretofore outlined in regard to the charge against you without the assistance of
counsel to which you are entitled? A. Yes, sir.
"The Court: And at this time do you plead guilty or not guilty? A. Guilty."
10
The court then continued the matter for a pre-sentence investigation, and on
August 5, sentenced Cherrie to imprisonment for three years on each count, to
run concurrently.
11
The report of the probation officer disclosed that Cherrie was sentenced to a
term of 2 to 20 years in the Washington State Reformatory in 1941 and was
paroled after serving 11 months of his sentence.
12
The motion to vacate was predicated on the ground that Cherrie did not
voluntarily, intelligently, and competently waive his right to the benefit of
counsel when he signed the written waiver of indictment and when he entered
his plea of guilty to the several counts of the information. In disposing of the
motion, the trial judge, in a written memorandum, recited the proceedings on
June 24, 1948, and stated that he personally remembered what occurred at such
proceedings, and further said: "This personal recollection impressed me with
the intelligence of the defendant and that he knew what he was doing at the
time so that he intelligently waived the assistance of counsel after he had been
advised that he was entitled to it by law."
13
It will be observed that Cherrie signed the waiver of indictment without the
advice of counsel, and that when he was brought before the court, the only
statement advising him of his constitutional right to counsel for his defense was
by the indirect statement: "Are you ready to plead to this information of which
I have heretofore outlined in regard to the charge against you without the
assistance of counsel to which you are entitled?"
14
In Von Moltke v. Gillies, 332 U.S. 708, 722-723, 68 S.Ct. 316, 322, 92 L.Ed.
309, the court said: "It is the solemn duty of a federal judge before whom a
defendant appears without counsel to make a thorough inquiry and to take all
steps necessary to insure the fullest protection of this constitutional right at
every stage of the proceedings.
******
15
16
17
We are of the opinion that the mere statement "Are you ready to plead * * *
without the assistance of counsel to which you are entitled?" did not discharge
the duty of the court. When a defendant appears before the court without
counsel, we think, as a minimum, the court, in order to discharge its duty, must
advise the defendant of the seriousness of the charge, that the Constitution of
the United States guarantees him the right to have the assistance of counsel for
his defense, and that if he is unable to employ counsel, it is the duty of the
court to appoint, and the court will appoint, counsel for him. Ordinarily, only
by such an inquiry can the court be sure that the defendant understands his
constitutional right and intelligently waives it.2 Of course, if the defendant is
learned in the law, or it otherwise clearly appears that he knows his
constitutional rights, a less inquiry may suffice.
18
Section 2255, supra, in part provides: "Unless the motion and the files and
records of the case conclusively show that the prisoner is entitled to no relief,
the court shall cause notice thereof to be served upon the United States
attorney, grant a prompt hearing thereon, determine the issues and make
findings of fact and conclusions of law with respect thereto."
19
Here, we think the files and records did not conclusively show that Cherrie was
not entitled to any relief and that the court should have granted him a hearing
on his motion.
20
Reversed and remanded for further proceedings in accordance with the views
herein expressed.
Notes:
1
"* * * the above named defendant, who is accused of violating Title 18,
Section 415 [now 2314] U.S.C.A. (Transporting falsely made securities
interstate) being advised of the nature of the charge and of his rights, hereby
waives in open court prosecution by indictment and consents that the
proceeding may be by information instead of by indictment
C. C. Cherrie
Defendant."