The opinion of the court was delivered by: HART
By opinion, dated January 18, 1972, 148 U.S. App. D.C. 338, 459 F.2d 1362, the United States Court of Appeals for the District of Columbia Circuit remanded this case to determine whether a respected member of the Bar, an officer of this Court, had lied to a defendant, and inferentially lied to the Court, concerning a plea. Such a remand puts the personal and professional integrity of the attorney in question. The charges, if true, would justify disbarment.
On June 22, 1970, the defendant was indicted, charged with "armed robbery," and three other offenses. He was arraigned on July 6, 1970, and plead "Not Guilty."
On July 24, 1970, defendant's counsel moved for a mental examination for defendant and the motion was granted. On September 22, 1970, the Staff of St. Elizabeth's Hospital found that defendant suffered from drug dependence, heroin, but that he was competent to stand trial and was not suffering from a mental disease or defect.
"THE COURT: Miss Harris, we will take your case now.
"Do you have some representation to make?
"MISS HARRIS: Yes, Your Honor, this is here today for a disposition, for a withdrawal of the plea of not guilty and a plea to robbery, count 2 of the indictment, under Section 22-2901 of the District of Columbia Criminal Code.
"THE COURT: That is robbery as differentiated from armed robbery?
"MISS HARRIS: That is correct, sir.
"Now, Mr. Curtis, I advise you and I want you to understand that you have Constitutional rights as follows: You have a right to a speedy trial by jury with the aid of counsel; you have a right against compulsory self-incrimination; and you have a right to face your accusers. If you plead guilty to the second count charging you with robbery, you will waive all three of those rights as they apply to that count and the matters involved therein. Do you understand that?
"THE COURT: You will have the assistance of counsel at the time of sentence if your plea is accepted; do you understand that?
"THE COURT: Now, the second count charges you with the crime of robbery, and do you understand that?
"THE COURT: The elements of the crime of robbery are these, as they apply particularly to this case: That is, that on or about April 8, 1970, within the District of Columbia, you along with William T. Weaver, took certain property away from the complaining witness, Thermon E. Statum; that is one element; do you understand that?
"THE COURT: Another element is that you took it unlawfully with intent to convert it to your own purposes; do you understand that?
"THE COURT: Another element is that you took it from the complainant's person or immediate actual possession; do you understand that?
"THE COURT: Another element is that you took it by force or violence against resistance or by putting the complainant, Mr. Statum, in fear; do you understand that?
"THE COURT: What in fact did you do on that day? What did you and Weaver do with Mr. Statum?
"DEFT. CURTIS: We were sitting in a car waiting for his girl friend and his other friend, waiting for him to bring back some narcotics, you know, so we stayed in the car so long until they started coming down, and we were getting sick, so I said Man, we got to get some money, like that. He said I know it. I said What we going to do? He say he don't know. So this man by the name of Mr. Statum drove up behind us, and he say You want to get him? I say, Might as well take a chance. So we got out the car and Mr. Statum got out first out of his car and we got out and he say Have you seen -- you know, he was wobbling like he had been drinking, and he asked me, asked us rather, Have you seen a girl about so high? I said Yes, I seen her. He said Can you tell me where she went to? I said, She went in there, like that. So he walked towards the door. When he walked towards the door we came up behind him and demanded money. I took a watch from him and put him back in the car.
"THE COURT: Did one of the two of you have a gun?
"THE COURT: Sentence, how long I am going to send you to jail for, if I send you at all, has anybody told you?
"THE COURT: Let me tell you this: I don't know myself what sentence I am going to give you until after I read the pre-sentence report and know all about you and give you and your counsel a chance to speak at your sentence. Therefore, if I don't know, no one else could know. Do you understand that?
"THE COURT: Has any promise of any kind been made to induce your plea of guilty except that the remaining counts of the indictment will be dismissed at the time of sentence if your plea is accepted? Have any other promises been made to you?
"THE COURT: Do you understand as a result of your plea you could be sentenced to as much as fifteen years in prison?
"THE COURT: Are you entering this plea voluntarily of your own free will because you are guilty and for no other reason?
"THE COURT: Have you discussed the entry of this plea fully with your attorney?
"THE COURT: Are you completely satisfied with the services of your attorney in this case?
"THE COURT: Take his plea to the second count.
"THE DEPUTY CLERK: Leon R. Curtis, in Criminal No. 1052-70, do you wish to withdraw your plea of not guilty heretofore entered, and enter a plea of guilty to count 2 of the indictment which charges robbery?
"THE COURT: Order a pre-sentence report; commit the defendant."
On January 15, 1971, defendant was sentenced to from 3 to 15 years and the remaining Counts of the indictment, including one for "armed robbery," were dismissed. (The following is the transcript of the sentencing procedure.
"THE COURT: The defendant, Leon R. Curtis, is before this Court today for sentencing in Criminal No. 1052-70, having been convicted of robbery on a plea of guilty to count 2 of a four-count indictment charging armed robbery, robbery, assault with a dangerous weapon and unauthorized use of a vehicle.
"Counsel, do you have anything to say before the Court passes sentence?
"MISS HARRIS: May it please the Court:
"We urge the sentencing of the defendant under the Youth Corrections Act, 18 U.S. Code Section 5010. Under a recent decision of the Court of Appeals, U.S. versus Walters, it has been stated that in the absence of an affirmative finding of incorrigibility, the Court must make a commitment and sentence under that statute.
"On the basis of the pre-sentence report and on the basis of the past record of this defendant, for whom this is the first felony conviction, I would say there is too little evidence to make an affirmative finding of incorrigibility. He falls within the age limits of the Youth Corrections Act, he is under 22, age 20, and as the Court said in the Walters case, the Congressional intent was toward an expectation and hope for rehabilitation for persons of this age.
"I would urge, therefore, under 18 U.S.C. § 5010, whose provisions made it possible to extend commitment, that option in favor of rehabilitation be accepted by this Court. I would urge the Court even with the difficulties involved in such a recommendation, to recommend to the Attorney General the most extensive kind of psychiatric evaluation for this young man whose past social history is such that it seems to me he does deserve the best we can give in rehabilitative efforts.
"THE COURT: You, of course, have read his presentence report?
"MISS HARRIS: That is correct.
"THE COURT: Which the Court made available to you.
Mr. Curtis, have you anything to say?
"DEFT. CURTIS: Yes, sir, Your Honor. All I have to say is if I ever get out of this, I would like to better myself and learn some type of skill and stop leading the life of crime. That's all, Your Honor.
"THE COURT: Well, this Court disagrees with counsel. It's true that this defendant, because of his age, is eligible for sentencing under the Youth Corrections Act. However, a reading of the pre-sentence report, which contains the past history of this defendant, and no indication that any of the pre-sentence report is erroneous, would indicate to the Court that this defendant has no marketable skill whatever, that he would profit in no wise from the Youth Corrections Act, that he is not subject, in the opinion of the Court, to be rehabilitated under the Youth Corrections Act, and this Court is, therefore, of the opinion that a relatively low minimum sentence with a high maximum sentence would best serve the interests of justice in this case and permit this defendant to learn a trade, to obtain a reasonably early release if he will work at it, but, on the other hand, permitting the Parole Board to protect the public in the event this defendant should not prove susceptible to rehabilitation in the prison system.
"It is, therefore, the judgment of this Court that you be imprisoned in a place of confinement to be designated by the Attorney General of the United States, or his authorized representative, for a term of not less than three years, and not more than fifteen years. The foregoing sentence is to be served consecutively to any sentence imposed prior to this date by any court in this or any other jurisdiction, state or federal.
"It is the recommendation of this Court that this prisoner be sent by the Attorney General to a Federal Institution where he can be taught a trade. All right.
"MISS HARRIS: Thank you, Your Honor. For the record may the defendant simply render his objection to the consecutive sentence made, simply to protect the record, and also to renew the position that under the circumstances a commitment under the Youth Corrections Act is required?
"THE COURT: You may. I don't think it is necessary, but you may.
"MR. HOFFMAN: The Government moves to dismiss the remaining counts, Your Honor.
"THE COURT: Remaining counts will be dismissed. Thank you.
"MISS HARRIS: Thank you, Your Honor."
Under date of March 9, 1971, defendant wrote a letter to the Trial Court which was received by the Clerk on March 17, 1971. In this letter, dated almost two months after his sentence, defendant for the first time alleged to the Trial Court that he had plead relying on a "promise" by his lawyer that he would receive a sentence under the Youth Corrections Act. This statement in the letter was directly contrary to the defendant's statements to the Court at the time of the plea on October 30, 1970. (See Transcript of October 30, 1970, supra.) Further, on January 15, 1971, when defendant was sentenced to 3 to 15 years, he made no mention of any YCA promise by his attorney. If any such promise had been made, surely the defendant would have mentioned it when he heard a sentence of 3 to 15 years pronounced against him.
This defendant was not unfamiliar with courts and court procedures. See Curtis v. United States, D.C. App., 268 A. 2d 603 (1970). In that case this defendant had plead to a misdemeanor in the District of Columbia Court of General Sessions. The Judge, in taking defendant's plea, advised him that he could be sentenced to 365 days in jail. Defendant was not advised that he could be sentenced under the Youth Corrections Act. Defendant was committed for study under 18 U.S.C. § 5010(e). Later, defendant appeared before the Court and the Court indicated it was going to sentence the defendant under the Youth Corrections Act. Defendant immediately asked to withdraw his plea on the grounds that he "understood" he could be confined for 6 years if so sentenced and this had not been explained to him. Defendant was, nevertheless, sentenced under the Youth Corrections Act. He appealed and his case was reversed on the authority of Carter v. United States, 113 U.S. App. D.C. 123, 306 F.2d 283 (1962). It is not believable, under the circumstances, that if this defendant had been promised a Youth Corrections Act sentence by his attorney that he would have stood silent when a sentence of 3 to 15 years was pronounced on him.
The Court treated defendant's letter of March 9, 1971, as a "Motion to Reduce Sentence and For a New Trial" and denied same. The Court at that time wrote defendant as follows:
In reply to your recent communication of March 9, 1971, which you asked to be treated as a motion for a new trial or for a reduction of sentence, I quote to you the following colloquy which occurred ...