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Fields v. United States

decided: February 16, 1971.

JOSEPH FIELDS, PETITIONER-APPELLANT,
v.
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE



Smith, Feinberg, Circuit Judges, and Levet, District Judge.*fn*

Author: Levet

LEVET, District Judge:

This is an appeal by Joseph Fields from an order entered November 21, 1969 in the United States District Court for the Southern District of New York (Murphy, D. J.) denying without a hearing a petition pursuant to 28 U.S.C. § 2255 to set aside a plea of guilty and vacate a judgment of conviction based thereon.

Fields was arrested on a bench warrant issued by the United States District Court for the Southern District of Ohio on an indictment charging that on October 29, 1967, at Wright-Patterson Air Force Base, he maliciously shot a man with intent to kill, wound or maim him in violation of 18 U.S.C. §§ 2, 7 and 13 and Ohio Revised Code § 2901.23.

On March 21, 1968, petitioner requested a Rule 20 transfer of both this charge and another one pending against him. No claim has been made here or below concerning the plea made with respect to this second charge. On April 1, 1968 he signed a consent to transfer for each offense. Both cases were transferred to the Southern District of New York and on April 30, 1968 petitioner, who was represented by a court-appointed attorney, pleaded guilty to both indictments before Judge Milton Pollack. On June 13, 1968, petitioner was sentenced by Judge Thomas Murphy under the indictment charging the malicious shooting to a sentence of 1 to 20 years under 18 U.S.C. § 4208(a) (1) and Ohio Revised Code § 2901.23.

Fields argues that his guilty plea did not meet the standards required in Rule 11 of the Federal Rules of Criminal Procedure in that (1) petitioner did not understand the nature of the charge; (2) the court did not satisfy itself that there was a factual basis for the plea; and (3) petitioner did not understand the consequences of his plea. It is further charged that the court was without jurisdiction since the indictment did not charge a federal crime.

We affirm the order of the trial court.

Fields' first two arguments regarding knowledge of the nature of the crime charged and the absence of a factual basis for the plea were not raised below and were never passed on by the district court. Petitioner may not now raise those issues for the first time on appeal. United States ex rel. Ross v. LaVallee, 341 F.2d 823 (2nd Cir.), cert. denied sub nom. Ross v. New York, 382 U.S. 867, 86 S. Ct. 137, 15 L. Ed. 2d 105 (1965); United States ex rel. Krzywosz v. Wilkins, 336 F.2d 509 (2nd Cir. 1964).

Fields' claim that he did not understand the consequences of his plea is based on his contention that he was never informed of the fact that under Section 5145.01 of the Ohio Revised Code, under which he was sentenced, the sentences for all felonies must be "general and not fixed or limited in their duration." It is claimed that if Fields knew that the judge had no choice but to sentence him to a term of 1 to 20 years he would not have pleaded guilty -- presumably because he was relying on his good record in the past to enable him to obtain a light sentence.

The record shows, however, that Fields was told quite specifically what he could expect in the way of a sentence. The voir dire was as follows:

"The Clerk: How do you plead, guilty or not guilty?

"The Defendant: Guilty.

"The Court: What is the maximum sentence on each of these indictments?

"Mr. Sofaer [United States Attorney]: Your Honor, under Section 495 it is $1,000 and ten years on that count, and on the other one, your Honor, Section 2901.23 of the Ohio Revised Code provides for a sentence from one to twenty years, and that is the punishment for that, and sentence would have to be imposed, your Honor, I am informed, under Section ...


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