United States of America Ex Rel. George Fink, E-8912 v. Alfred T. Rundle, Superintendent, State Correctional Institution, Philadelphia, Pennsylvania

KALODNER, Circuit Judge

(dissenting):

I would affirm the Order of the District Court denying the relator’s habeas corpus petition for these reasons:

The hard core of relator’s petition is that he “was induced by [his] counsel to enter a compromise guilty plea with the understanding that a sentence not exceeding nine (9) months would be imposed,” in contrast to the one and a half to three years sentence actually imposed by the state trial court.

*547The District Court, after a hearing at which the relator and his counsel testified, and the transcript of the state sentencing proceeding was introduced in testimony, found that the relator’s afore-stated contention was without merit and that “the plea of guilty was entered voluntarily”. While the District Court erred in stating in its Opinion1 that “The burden of persuasion rests upon the defendant who seeks to withdraw his plea,” the error is harmless in the instant case since the state sentencing record, and that below, clearly establish the correctness of the District Court’s findings on the score of the relator’s contentions.

The relator’s contentions with respect to his “understanding” of the sentence he was to receive, and that he did not know he would have to serve time for violation of his parole, are established as groundless by the following quoted transcripts of the sentencing and re-sentencing proceedings:

“The Court: Mr. Fink, as you realize, you have a pretty serious record here. You are aware of that fact are you not?
“Defendant Fink: Yes sir.
“The Court: And you are not charged as seriously in this present charge as you were on other charges which you appeared before this Court on, and for that reason and that reason only the sentence of this Court will probably not be as severe as it was on the prior charges when you came in here on forgery, larceny and sodomy.” (Initial sentencing proceeding).
“The Court: On Complaint No. 91 September Term, 1965, Commonwealth v. George Galen Fink, charged on two counts with corrupting the morals of minors, in the first count I sentence you to undergo imprisonment — to pay a fine of fifty dollars, to undergo imprisonment in the Lancaster County Prison for a period of not less than eighteen mjnths nor more than three years. I suspend sentence on the second count and place you on probation for a period of three years.
“On the charge of furnishing intoxicants to minors, Complaint No. 88 September Term, 1965, I sentence you to pay a fine of one hundred dollars. On Complaint No. 89 September Term, 1965, the same offense, I sentence you to pay a fine of one hundred dollars and in both cases to pay costs of prosecution and stand committed until these sentences are complied with, and each of these three sentences are to run consecutively and not concurrently.
“Defendant Fink: May I say something? Are you taking into consideration the fact that I have this parole ?
“The Court: What ? I am taking into consideration the fact that you still are subject to imprisonment for violation of your parole and for that reason I have not sentenced you to any imprisonment on the second count of corrupting the morals of a minor.
“Defendant Fink: Which parole are you taking into consideration? I have already done the two years. Now, if I am to go back there—
“The Court: You will have to serve your parole violation before you start serving these sentences.
“Defendant Fink: That’s what I am telling you. I have four and a half years.
“The Court: I know. I took that into consideration when I imposed this sentence. These are serious charges. If you did not have time to serve on your parole violation, I probably would have sentenced you to imprisonment on the second count of corrupting the morals of minors on which I have put you on probation. You are being sentenced now to only a year and a half in prison and the violation of your parole is a matter that the parole authorities have to take up.” (Resentencing proceeding.)

The District Court’s Opinion discloses that it considered the quoted sentencing *548record in rejecting relator’s contention that he did not understand the consequences of his guilty plea, and this negates the majority’s statement that:

“An issue presented, which the District Court did not consider, is whether petitioner was ignorant that his plea of guilty would impose upon him imprisonment for the remainder of the prior sentence on which he had been paroled.”

It is pertinent to point out that the state trial judge who denied relief to the relator in the latter’s Post Conviction Hearing Act2 proceeding, considered and rejected as without merit the identical contention presented in the instant ha-beas corpus petition, and that the Pennsylvania Superior Court at 210 Pa.Super. 71, 232 A.2d 230 (1967), in affirming, specifically considered and found the relator’s contention groundless. As the majority has noted, allocatur was denied by the Pennsylvania Supreme Court.

This, too, must be said on the score of the majority’s statement that:

“This habeas corpus petition graphically illustrates the undesirability of the practice * * * 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.”

I agree with the majority’s statement that a record must clearly reveal that a guilty plea was made “voluntarily and knowingly” but disagree with its holding that the record in the instant case fails to disclose that the relator’s guilty plea was “voluntarily and knowingly” made.

The evidence establishes that the relator was an habitual criminal who had previously suffered imprisonment following convictions on indictments charging him with sodomy, larceny and forgery. He candidly admitted on his cross-examination in the instant proceedings that he had “quite a few” “brushes with the law before” and that he “knew what a guilty plea was.”3

The majority’s disposition in the instant ease compels this observation:

Judicial enforcement of constitutional due process guarantees should be dis-criminatingly and clinically premised on *549the facts presented in a particular case, and not in blind homage to currently prevailing sweeping due process doctrine which regrettably fails to accord cognizance to the “general welfare” clause of the Preamble to the Constitution.

. The Opinion of the District Court is reported at 293 F.Supp. 1124 (E.D.Pa.1968).

. 19 P.S. § 1180-1 et seq.

. On cross-examination in the court below, by Mr. Rutherford from the Office of the District Attorney of Lancaster County, Pennsylvania, the relator testified in relevant part as follows (pp. 36-37-38 N.T.):

“Q. Did you know what you were doing what you plead guilty?
“A. I based my plea on—
“Q. Will you answer my question?
“A. ■ — on Mr. Danforth’s assurance that that is exactly what would happen.
“Q. No, but nobody held a gun to your head?
“A. No.
“Q. Nobody forced you to do this; is that correct?
“A. I didn’t say they did. No.
“Q. And you have had a few brushes with the law before?
“A. That is right.
“Q. In fact, quite a few; is that correct?
“A. That is right.
“Q. So you knew what a guilty plea was ?
“A. Yes.
“Q. You knew that when you plead guilty that you were admitting that you did the things that you are charged with; is that correct?
“A. I plead guilty to — •
“Q. Will you answer my question?
“The Court: Just answer the question, Mr. Fink, and then you can explain.
“Q. No.
By Mr. Rutherford:
“Q. You are telling us now that when you plead guilty you did not know that you were admitting what you were charged with?
“A. I admitted only the guilty plea on the strength of the nine months sentence. Believe me.
“Q. But you knew, though, what a guilty plea meant?
“A. Yes. I said ‘yes’.
“Q. So regardless of what your motivation was, you knew what a guilty plea meant?
“A. Yes.
“Q. You knew that a guilty plea meant you were saying: ‘Yes, I did what you are accusing me of having done’?
“A. Yes.
“Q. You knew that?
“A. Yes.
“Q. And you consider yourself to be a person of average intelligence? You don’t consider—
“A. I imagine so.”