(concurring):
I concur in the remand for a hearing, though I think the preferable procedure in that connection would be to reverse and vacate the sentence pending the result of the remand. I also concur in the opinion of the court regarding the circumstances incident to the phase of the case which the opinion states was developed by counsel this court appointed.
I add the following on the general problem of permitting withdrawal of a guilty plea, as applicable to this particular case.
In 1927 the Supreme Court said:
“The court in exercise of its discretion will permit one accused to substitute a plea of not guilty and have a trial if for any reason the granting of the privilege seems fair and just. Swang v. State, 2 Cold W. (Tenn.) 212; State v. Maresca, 85 Conn. 509; State v. Nicholas, 46 Mont. 470, 472; State v. Stephens, 71 Mo. 535; People v. McCrory, 41 Cal. 458, 461; State v. Coston, 113 La. 717, 720; Bishop’s New Criminal Procedure, § 747.”
Kercheval v. United States, 274 U.S. 220, 224, 47 S.Ct. 582, 583 (1927) 1 Our case of Poole v. United States, 102 U.S.App. D.C. 71, 75, 250 F.2d 396, 400 (1957), referred to Kercheval and other authorities. We there said:
“Leave to withdraw a guilty plea prior to sentencing should be freely allowed.”
We relied in part upon our earlier ease of McJordan v. Huff, quoting from it as follows:
“As we said in McJordan v. Huff, 1943, 77 U.S.App.D.C. 171, 172, 133 F.2d 408, 409: ‘ * * * it goes without saying that a plea of guilty at that time [arraignment] can be and often is changed, on proper motion, as a matter of course.’ ” (Emphasis added by Poole court.)
The court’s opinion also refers to our more recent case of Everett v. United States, 119 U.S.App.D.C. -, 336 F.2d 979 (1964) (in which Judge Wright dissented). In Everett the accused at the hearing on the motion to withdraw his plea of guilty stated to the court, “I am guilty of that charge. I did attempt to rob this place. That’s all.” In these circumstances the court denied the motion. More importantly in relation to the present case the court granted Everett’s motion to withdraw his guilty plea to a different count as to which he maintained his innocence, as Hawk does in this case.2
The question is not answered by the fact that the guilty plea was validly entered. The right to withdraw such a plea *797is not conditioned upon its invalidity. The question is whether, notwithstanding its validity when entered, the court should, in the exercise of that sound discretion applicable to this problem, permit it to be changed. In answering the court should give weight to the place trial by jury is accorded in our system of administering criminal justice. On the background of this fundamental right the courts give generous latitude to an accused who wishes to go to trial rather than to adhere to a plea of guilty previously entered.
It is probably true that appellant was motivated at least in part by the circumstances that after he entered his plea of guilty the victim of the assault, of which he and others were accused, had failed at the trial of a codefendant to testify the latter had actually committed the crime of which both were charged. As the court’s opinion points out, the complaining witness became unavailable to testify in that trial, resulting in dismissal of the case on the prosecutor’s motion. From these circumstances appellant may have concluded that if he went to trial the result would be the same, thus freeing him. But this motivation does not require denial of the motion, especially in light of appellant’s contention that the complaining witness perjured herself. Moreover, other factors were before the court. The guilty plea by Hawk was to a lesser offense than the indictment charged.3 It was not an admission that he was guilty of the more serious offense he states in his motions he did not commit, and for which he was willing to be tried. In asserting his innocence he alleges that he entered the plea because he was afraid of the sentence he would receive if found guilty by a jury. He said the plea was made in “bad faith.” He also alleges that he was under the impression he was pleading to a misdemeanor, but subsequently discovered that his plea was to a felony. When his motion to withdraw the guilty plea was denied and he was about to be sentenced he stated again to the court that he was innocent of the charge and wished to withdraw his plea.
. The court’s opinion refers to the statement in Kercheval that a plea of guilty is itself a conviction and when one so pleads “he may be held bound.” The Court said this in the course of holding that.since the guilty plea had been withdrawn it could not be admitted on the issue of guilt on the trial which occurred after a not guilty plea had been substituted for the guilty plea. Accordingly, the guilty plea binds the accused only if he has been validly refused permission to withdraw it, the very question to be decided in this case.
. The court’s opinion also refers to High v. United States, 110 U.S.App.D.C. 25, 288 F.2d 427, cert. denied, 366 U.S. 923, 81 S.Ct. 1350 (1961). There the motion to vacate the sentence and to withdraw the plea of guilty was filed after sentence. Such a motion is governed by more stringent requirements then one filed before sentence. See Rule 32(d) Ped.R. Crim.P. In any event there was no assertion of innocence by High, as there was by Hawk in this case.
. Should the motion to withdraw the guilty plea be granted there is the possibility appellant may be faced with the more serious charges contained in the counts dismissed. I intímate no opinion on any question with which the courts might be confronted by reason of this possibility.