APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 76-1485)
Before Aldisert, Gibbons and Higginbotham, Circuit Judges.
This appeal from the district court's denial of Howard Horsley's motion pursuant to 28 U.S.C. § 2255 presents the question whether the trial judge's failure personally to advise an accused of the nature and elements of the offense with which he was charged and to which he pleaded guilty requires that plea to be vacated. Because the record reveals that the plea colloquy did not satisfy the requirements of Federal Rule of Criminal Procedure 11,*fn1 resulting in prejudice to the appellant, we reverse the decision of the district court and remand the case with instructions that Horsley be permitted to plead anew.
In July 1976 ten defendants, including appellant Horsley, were indicted and charged with conspiracy and substantive violations of the federal narcotics law. Horsley was named as a defendant in count one (conspiracy to distribute heroin in violation of 21 U.S.C. § 846) and count five (possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1)). After initially pleading not guilty before a magistrate, appellant changed his plea on November 8, 1976, to one of guilty to the first count. The trial judge questioned the defendant pursuant to Rule 11, and ultimately accepted the plea. Horsley subsequently received the maximum statutory sentence: 15 years imprisonment to be followed by a special parole term of three years, to run consecutively with any sentence being served by appellant at that time.
Acting at first Pro se, and thereafter through retained counsel, appellant filed a § 2255 motion to vacate the sentence, along with a motion to withdraw the guilty plea. Both motions centered on the allegation that the trial judge failed to advise Horsley of the elements of the offense with which he was charged and that, as a result, the guilty plea was not knowingly and voluntarily entered.
In accord with the Rule 11 mandate that the court inform defendant of, and determine that he understands, the nature of the charge, the court questioned the appellant as follows:
Q. And you have indicated to (the prosecuting attorney) that you received a copy of the indictment in this case and had an opportunity to go over it with your attorney?
Q. Do you fully understand the charges against you?
Q. Do you understand the indictment charges you with conspiracy with respect to heroin, and that is the count you are pleading to?
Q. Have you told Mr. Bogdon all the facts in connection with this charge?
Q. And are you satisfied with Mr. Bogdon as your attorney?