APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA Civil Action No. 75-13.
Gibbons and Hunter, Circuit Judges, and Layton, Senior District Judge.*fn* Gibbons, Circuit Judge, concurring.
LAYTON, Senior District Judge:
This is an appeal from the denial by the United States District Court for the Western District of Pennsylvania of a petition to vacate a sentence.
On September 26, 1973, Mark Houmis pled not guilty to a seven-count indictment charging counterfeiting in violation of 18 U.S.C. §§ 371, 471-72.
On December 4, 1973, Houmis decided to change his plea to guilty on Count II of the indictment and a hearing was held pursuant to Rule 11, F.R. Cr. P. Sentencing was postponed until January 11, 1974, at which time Houmis was sentenced to a term of 8 years, 5 years of which were to run concurrently with a 5 year sentence which he was then serving on another charge.
After several unsuccessful efforts to obtain relief from this sentence, on January 3, 1975, Houmis petitioned for relief under 28 U.S.C. § 2255. A second hearing was held in May 1975. On December 30, 1975, the court denied relief and Houmis has appealed.
The principal grounds for appeal are (1) that the sentence was inconsistent with a plea bargain made between Houmis and the United States Attorney prior to the Rule 11 hearing; and (2) that Houmis was denied the effective assistance of counsel at the hearing because his attorney was then representing two other defendants in the same case under circumstances indicating that he was acting under a conflict of interest.
Because both the record and the district court's opinion reflect substantial confusion regarding whether the defendant understood the agreement, and thus leave doubt whether any "meeting of the minds" ever resulted from plea negotiations, we cannot reach the first issue, and need not reach the second. Instead we are remanding with instructions that the defendant be given an opportunity to withdraw his plea.
At the plea hearing, Houmis took the position that he agreed to plead guilty on two conditions: (1) that Barbara Ross and Sandy Antosz, two other joint defendants in the same case, be relieved from prosecution and (2) that he would receive no more than a 5 year sentence to run concurrently with another sentence that he was then serving. The pertinent portions of the record of the plea hearing follow:
Sheinman: (defense counsel) "What he (defendant) meant was, your Honor, that Sandra Antosz and Barbara Ross should have the complaints dismissed against them because he felt that they didn't do anything wrong . . . and if the United States Attorney's office would go along with a sentence that he (defendant) would have not in excess of what he was doing,*fn1 concurrent with his time. . . .
I assume that is true, isn't it?"
Curry: (United States Attorney) " That is correct, your Honor."*fn2 ...