Kalodner, Freedman and Seitz, Circuit Judges. Kalodner, Circuit Judge (dissenting).
This habeas corpus petition graphically illustrates the undesirability of the practice, widespread until very recently, of accepting pleas of guilty without that penetrating inquiry which searches out the mind of the defendant and clearly reveals on the record that his plea was made voluntarily and knowingly.
Petitioner was indicted in the Court of Quarter Sessions in Lancaster County, Pennsylvania, on a number of charges. Those before us now were on two indictments for furnishing intoxicants to minors*fn1 and an indictment containing two counts of corrupting the morals of a minor.*fn2 He appeared before the court on March 21, 1966 represented by Theodore S. Danforth, the Public Defender of Lancaster County, and pleaded guilty to the three indictments containing the four charges. The record indicates that at the same time two other indictments, one for displaying obscene motion pictures and the other for solicitation to commit sodomy, were also before the court and were nolle prossed. Petitioner was sentenced on the two indictments for furnishing intoxicants to minors to pay a fine, and on one of the counts of corrupting the morals of a minor to pay a fine and undergo imprisonment for not less than one and one-half years and not more than three years, and on the second count was given a suspended sentence and placed on probation for three years.*fn3
Petitioner now attacks his pleas of guilty on the ground that he was induced to enter them on his understanding that the other charges would be dropped and that he would be required to serve an imprisonment of nine months. At the hearings held in the District Court he amplified this ground by the claim that he had been led to understand that the sentence of imprisonment for nine months was to represent the total confinement to which he was to be subjected, although he was at that time on parole on another sentence on which he had a further parole period of two and one-half years on a four and one-half year parole. The parties agree that as a result of his pleas of guilty in the present case he is now imprisoned on the sentence from which he was paroled, and that under Pennsylvania law he will be required to serve, not the unexpired portion of his parole, but its full period of four and one-half years before he begins the service of the present one and one-half to three year sentence.*fn4
Petitioner claims that the assurance on which he pleaded guilty was breached a few minutes later, when the sentencing judge, who at first imposed a sentence of nine months imprisonment, changed it to one and one-half to three years after the detective who had narrated the prosecution's case recited petitioner's criminal record. If the claim is justified, petitioner has suffered serious injustice from the refusal to set aside his plea of guilty. Instead of a nine months period of imprisonment he has been required to begin anew service of four and one-half years imprisonment on his old sentence on which he was paroled and when that is completed will be compelled to serve the present sentence of one and one-half to three years and thereupon enter on probation for a period of three years.
A transcript of the proceedings, held on March 21 and 22, 1966, was made part of the record in the District Court and is before us. It leaves much to be desired. It shows no plea of guilty by petitioner, but a statement by the Assistant District Attorney that petitioner was pleading guilty, the court's request that a detective state the facts and petitioner's prior record, and its inquiry whether petitioner's counsel had anything to say. Counsel replied in the negative, adding: "We have discussed this fully at side bar. The defendant is aware of the circumstances."
Thus, although petitioner obviously realized that he was being pleaded guilty, the plea came not from him but from his counsel's earlier discussion with the prosecutor, and the allocution was directed not to petitioner but to his counsel.
The next day petitioner was resentenced in what amounted to a change in the place of imprisonment. At that time a colloquy ensued between petitioner and the judge which showed petitioner's concern regarding his parole.
Petitioner testified in the District Court that he made his pleas of guilty on Mr. Danforth's assurance that he would not be required to serve more than nine months imprisonment, that this indeed was the sentence originally imposed and that it was changed after his criminal record was made known to the court. He claimed also that this nine months sentence was to be the total imprisonment and that the sentence under which he was paroled would be discontinued. There is nothing in the transcript, however, to show that the court had earlier imposed a sentence of only nine months imprisonment, as petitioner claims. But petitioner is corroborated by a letter from Mr. Danforth which informed him that "The first and lighter [sentence] was made without knowledge of your prior record." Mr. Danforth testified in the District Court that it was his recollection that a lighter sentence had initially been imposed.
Mr. Danforth's testimony in the District Court acknowledged that discussions had ensued at side bar between him and the prosecutor with the judge but explained that no agreements were made because those involved believed it would be improper to press their understanding to the point of a binding obligation. There can be no doubt from Mr. Danforth's testimony, however, that petitioner would have been justified in believing that his counsel felt that if he pleaded guilty to the designated charges, the others would be nolle prossed and he would suffer a relatively short period of imprisonment.*fn5
The District Court held that the burden rested on petitioner to prove that "the trial judge had made a promise or commitment to petitioner which was not kept and which induced the guilty plea." 293 F. Supp. 1124, 1125 (E.D.Pa.1968). In so allocating the burden of proof the District Court fell into error.
In Pennsylvania where these criminal proceedings occurred the Supreme Court in a number of cases urged trial courts to conduct a full on-the-record examination of a defendant who pleads guilty, to determine whether he fully understands the nature of the charges against him, the acts which are sufficient ...