The opinion of the court was delivered by: JUDD
This is a petition to vacate a plea of guilty and sentence, for unlawful possession of heroin, on the basis of the court's alleged failure to mention the requirement of a special parole term at the time the plea of guilty was accepted.
Petitioner and one Nestor Machin were indicted for possession of heroin with intent to dispense and conspiracy to dispense and distribute, all in violation of 21 U.S.C. § 841(a). Mr. Machin was named in Count 2 for conspiracy and Count 3 for actual distribution and petitioner in Count 1 for actual possession with intent and Count 2 for conspiracy. Both defendants were originally represented by the same attorney, but a new attorney put in a notice of appearance for Mr. Machin a few weeks after their arraignment. Irving Katcher, an attorney with considerable experience in narcotic cases, represented petitioner throughout the case.
The government's case was based on transactions with an undercover agent and an informer. Petitioner provided the agent with a sample of heroin on the first occasion, in expectation of a sale of an ounce. He talked with the agent on the second occasion, when somewhat less than an ounce was delivered to the agent by petitioner's partner, Mr. Machin. According to the presentence report, the agents believed petitioner to be the more culpable of the two.
Petitioner had five prior convictions and had received sentences aggregating three to six years. His co-defendant Machin had only two minor convictions involving sentences of $75.00 in fines and 15 days in jail.
On April 12, 1972, the date originally set for trial, both defendants appeared, but the case was adjourned to April 13, in expectation of pleas. On April 13, both defendants pleaded guilty, Mr. Machin to the conspiracy charged in Count 2, and petitioner to the charge of possession with intent under Count 1.
The caption of the minutes containing Mr. Machin's guilty plea refers to both defendants, and the appearances on page 2 note that Mr. Katcher was present as well as Mr. Machin's attorney.
The court explained to Mr. Machin that he could go to trial, starting that day, and described his rights. Mr. Machin answered yes to the question whether counsel had explained it to him. With respect to the penalty, the court stated,
Now, the charge against you is a conspiracy to dispense heroin, which is a violation of Section 846 of Title 21 of the United States Code. It says the offense is punishable by imprisonment or fine which may not exceed the maximum prescribed for the offense, and the offense, since it is heroin, is a particularly undesirable drug, is that you may be sentenced to a term of imprisonment of not more than fifteen years or a fine of not more than $25,000, or both; and that the sentence shall include a special parole term of at least three years. Has counsel told you that?
DEFENDANT MACHIN: Yes, Your Honor.
THE COURT: And you understand that?
DEFENDANT MACHIN: Yes, Your Honor?
Petitioner and Mr. Katcher had been standing before the bench during the pleading by the co-defendant. In connection with the Rule 11 questioning of the petitioner, the court referred to his previous colloquy with Mr. Machin. As referred to in the ...