The opinion of the court was delivered by: BIUNNO
After initial review, the court noted several related questions and asked the parties to express their views on them. One was whether Moore's counsel had informed him of the requirement, aside from the colloquy at plea acceptance.
Another was whether, if Moore proved to be entitled to withdraw his plea of guilty to one count, the other count dismissed at sentence in accordance with plea negotiations should be reinstated.
The third was whether unenforceability of the provision for special parole had the consequence of establishing that his plea was properly accepted but rendered the sentence illegal.
Following the entry of a memorandum, and then an opinion and order in the matter, an evidentiary hearing was conducted.
The requirement that a defendant charged with an offense in violation of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. § 801 et seq.), who may be subject to one or another of the provisions for mandatory special parole, must be aware of that potential consequence was first spelled out in Roberts v. U.S., 491 F.2d 1236 (C.A. 3, 1974), decided January 28, 1974.
Moore had pleaded guilty on October 13, 1972 (15 months before Roberts), and was sentenced on July 27, 1973 (7 months before Roberts), Cr. No. 845-71.
The record at plea shows that the trial judge addressed Moore personally, and made the required findings. Any awareness of the special parole aspects is by inference or implication, rather than explicitly, as noted in the prior rulings.
Moore was represented by counsel and was asked if he had discussed the plea with him; he had. He was asked if counsel had answered all his questions; he had. Since the mandatory special parole provision is set out in the same section Moore was charged with violating and to which he pleaded guilty, counsel could hardly have overlooked it. The inference of awareness is clear and is a proper one.
However, when the question was raised in this proceeding, Moore responded that he was not informed of the provision by counsel. If Moore were taken at his word, the obvious inference could not be drawn.
In those circumstances, if Roberts applies Moore would have the right to withdraw his plea, aside from the other questions discussed later.
The United States meets this reasoning with the claim that Roberts should not be applied retroactively to defendants who had pleaded and were sentenced before the decision in Roberts came down. Heavy reliance is placed on Brown v. U.S., 508 F.2d 618 (C.A. 3 1974), decided December 31, 1974 and amended January 24, 1975.
Brown does contain detailed discussion of the principles and considerations applicable to the question of retroactivity of court decisions. But there are three separate opinions, one by each member of the panel (a majority, a concurring and a dissenting opinion), totalling more than 27 pages, literally bristling with references, excerpts and analyses of many other decisions.
The opinions represent herculean efforts to distill a rational pattern of guides to resolve retroactivity questions. Yet, after multiple reviews of the three opinions as well as of the major decisions of the Supreme Court of the United States on the question, the reader senses that the cases display the characteristics of a Brownian movement more than they do a discernable pattern or matrix.
In principle, retroactivity in the law is a repugnant characteristic to begin with. In the original Constitution, before annexation of the Bill of Rights, the enactment of ex post facto laws was forbidden. U.S.Const., Art. I, § 9, cl. 3. The earliest decision on this was Calder v. Bull, 3 U.S. 386, 3 Dall 386, 1 L. Ed. 648 (1798), and there has been little, ...