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Winkle v. United States

UNITED STATES COURT OF APPEALS SECOND CIRCUIT


February 9, 1979

ROBERT E. WINKLE, PETITIONER-APPELLANT,
v.
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE.

Present: HONORABLE WALTER R. MANSFIELD, HONORABLE WILLIAM H. TIMBERS, Circuit Judges; HONORABLE HENRY F. WERKER, District Judge.

Upon this appeal from an order of the United States District Court for the Southern District of New York, Thomas P. Griesa, Judge, entered March 30, 1978, denying appellant's motion under 28 U.S.C. ยง 2255 to vacate the judgment of conviction entered against him on May 12, 1976, pursuant to his guilty plea, the order of the district court is AFFIRMED.

The record reveals that appellant voluntarily, intelligently and knowingly pleaded guilty to Counts 1 (forging payee's signature on a U.S. Treasury check), 3 (stealing the U.S. Treasury check from the mails) and 5 (uttering another U.S. Treasury check with a forged payee's signature on it) after being advised of the consequences of his plea as required by Rule 11, F.R.Cirm.P. The record shows that appellant spoke and acted rationally.

Nor was appellant denied effective assistance of counsel. Although his counsel was not present at the time when the plea was entered, his attorney had reviewed the information with appellant carefully in advance and appellant opposed an adjournment on the ground that he could not afford to stay longer in New York. Moreover, his counsel was present when he was sentenced.

Rule 11(c)(1) did not obligate the court, after advising appellant of the maximum punishment that could be imposed on each count, to total the penalties for appellant, who could add. Nor was the court required to advise appellant, who had had considerable prior experience with criminal law through earlier proceedings, regarding the punishment that might be imposed if he should violate probation.

Appellant knowingly and intelligently waived pursuant to Rule 7, F.R.Crim.P. his right to be proceeded against by indictment in favor of the mre expeditious procedure of filing an information, to three counts of which he pleaded guilty.

Since appellant's new factual contentions (that he did not forge an obligation of the United States and that he endorsed one Treasury check as an agent) cannot be considered by us because they were not raised in the district court.

19790209

© 1998 VersusLaw Inc.



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