(dissenting).
I respectfully dissent.
I do not deem the record adequate to affirm the trial court’s refusal to grant the defendant’s motion.to withdraw his guilty plea under Fed.R.Crim.P. 32(d). Petitioner alleges that he was under drug medication for a long period of time immediately prior to his plea of guilty. As a result, he asserts that he did not fully understand the nature of the charges or the consequences of his plea and seeks to withdraw his earlier plea.
As the majority opinion acknowledges, the only question on appeal is whether the trial judge abused his discretion in denying the request. The exercise of discretion involves deliberate legal judgment based upon a thorough consideration of all factual circumstances presented. It is true that the trial court observed defendant at the time of the plea and that the defendant was represented by able and competent counsel at the time of his plea. However, at the time the defendant asked leave to withdraw his plea of guilty, no hearing was held to determine the voluntariness of defendant’s earlier plea, in terms of his original understanding of the nature of the charges and the possible consequences of his plea. The transcript of the earlier guilty plea proceedings clearly demonstrates that the court did not comply with Fed.R.Crim.P. 11, as amended in 1966. The much too abbreviated hearing reads:
“THE COURT: Now, Mr. Lanier [defendant’s counsel] has gone all through this matter,1 and you are well aware of the fact that you are entitled to trial by jury if you desire it?
“DEFENDANT SHERBURNE: Yes, sir.
“THE COURT: Now, how do you plead to the indictment, guilty or not guilty?
“DEFENDANT SHERBURNE: I plead guilty, your Honor.
“THE COURT: A plea of guilty is received.
“Now, Mr. Sherburne, in entering this plea of guilty, did you do so voluntarily ?
*1355“DEFENDANT SHERBURNE: Yes, sir.
“THE COURT: And after consultation with your court-appointed counsel, but you decided to do it?
“DEFENDANT Yes. SHERBURNE:
“THE COURT: volition ? Purely of your own
“DEFENDANT Yes, sir. SHERBURNE:
“THE COURT: dated by anyone? Were you intimi-
“DEFENDANT No, sir. SHERBURNE:
“THE COURT: ened by anyone ? Were you threat-
“DEFENDANT SHERBURNE: No.
“THE COURT: Did anyone make any promises to you as to what you might or might not—
“DEFENDANT SHERBURNE: (Interrupting) No, sir.”
The record fails to disclose that the defendant was at any time openly informed of the factual nature of the charges or of the possible maximum sentence. Strict enforcement of Rule 11, as interpreted by McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), would require the plea of guilty to be set aside. However, under Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969), this rule is to be applied prospectively only. But cf. United States v. Tucker, 425 F.2d 624 (4 Cir. 1970). Under pre-McCarthy cases, however, the issue is whether the plea was entered voluntarily with a full understanding of the nature of the charge and the consequences that would follow. Compliance with constitutional process has always required that the defendant be given notice of the true nature of the charge. Cf. Smith v. O’Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 85 L.Ed. 859 (1941). As recognized by the American Bar Association's Standards Relating to Pleas of Guilty, the nature of the charge should always be read to the defendant notwithstanding a prior reading of the indictment. Section 1.4(a). Furthermore, the voluntariness of a guilty plea has been successfully challenged in pro-McCarthy days where a trial court has failed to inform the defendant of the maximum punishment he might receive. Combs v. United States, 391 F.2d 1017 (9 Cir. 1968); Harper v. United States, 368 F.2d 53 (10 Cir. 1966); Pilkington v. United States, 315 F.2d 204 (4 Cir. 1963). Cf. Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927).
In a pre-McCarthy case, Bartlett v. United States, 354 F.2d 745, 751 (8 Cir. 1966), this court observed in applying old Rule 11:
“The Court must determine ‘that the plea was made voluntarily with understanding of the nature of the charge.’ The decisions are uniform in broadly interpreting this provision to mean that the Court must do all it can to reasonably make certain that a plea of guilty represents the free and voluntary act of a defendant who understands the nature of the offense, the charge against him and the consequences of his plea.” (My emphasis.)
The record does not affirmatively disclose that the defendant was informed as to the nature of the charge and the maximum sentence that could be prescribed. It is difficult for me to say under these circumstances that the defendant fully appreciated these matters. Where a petitioner has alleged the involuntariness of a guilty plea in a post-conviction proceeding, and the transcript of the guilty plea proceeding fails to sufficiently disclose the petitioner’s understanding in order to judge the plea on the issue of voluntariness, a plenary hearing is necessary to resolve the *1356question.2 See Grindstaff v. Bennett, 389 F.2d 55 (8 Cir. 1968). Cf. Sanders v. United States, 373 U.S. 1, 19-21, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); Day v. United States, 428 F.2d 1193 (8 Cir. 1970); Catalano v. United States, 298 F.2d 616 (2 Cir. 1962).
Under the circumstances presented, where the original plea proceedings are not in compliance with Rule 11, I think it incumbent on the trial court, on a motion to withdraw a plea of guilty, to conduct an evidentiary hearing to determine whether defendant fully understood the nature of the charges and the maximum sentence involved. To affirm this judgment is to impermissibly make that determination upon a silent record. Cf. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962).
. There is nothing in the record to varify that Mr. Lanier informed the defendant of the factual basis of the charge or of the possible maximum sentence involved. An evidentiary hearing would undoubtedly disclose whether Mr. Lanier did this or not. Under Rule 11, it is, of course, the duty of the court to do so.
. If the' transcript of the guilty plea proceeding is complete, an evidentiary hearing would not be necessary. Bongiorno v. United States, 424 F.2d 373 (8 Cir. 1970) ; Young v. United States, 423 F.2d 677 (8 Cir. 1970).