P. v. Romero

Filed 8/20/08 P. v. Romero CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

I. INTRODUCTION

Defendant Miguel Angel Romero appeals from a March 26, 2007 order denying his petition for a writ of error coram nobis. Defendant was sentenced to four years in state prison in 2001 after pleading no contest to possession of heroin for sale (Health & Saf. Code, 11351). After the disposition in state court, defendant pleaded guilty in federal court to one count of conspiracy to distribute heroin (21 U.S.C. 846) and was sentenced to 70 months in federal prison in early 2004. The state and federal convictions arose out of the same underlying conduct by defendant.

Defendant contends his plea in state court was based on a mistake of fact, and he seeks to vacate the judgment and withdraw the plea. Defendant asserts that he was induced to plead no contest based on comments the prosecutor and the trial court made concerning the likelihood of federal prosecution or federal prison time. Defendant, who is currently in federal prison, seeks to vacate the state conviction because it would enable him to obtain credit on his federal sentence for the 31 months he spent in custody subject to a federal hold [and] would resultsubject to bureaucratic delaysin his immediate release.

We find that the mistaken belief asserted by defendant was not the result of any reasonable reliance by defendant on a statement by the prosecutor or the trial court. We therefore conclude that the trial court did not abuse its discretion in denying defendants petition for a writ of error coram nobis and we will affirm the trial courts order.

II. BACKGROUND

InitialState Proceedings in 2001

Defendant was arrested on March 24, 2001, and a felony complaint was filed on March 28, 2001, naming him and four others. Defendant was charged with conspiracy to manufacture methamphetamine, to possess methamphetamine for sale, and to possess heroin for sale (Pen. Code,  182, subd. (a)(1); Health & Saf. Code,  11379.6, subd. (a), 11378, 11351) (count 1). Defendants alleged acts in furtherance of the conspiracy included transporting six pounds of heroin on or about March 24, 2001. The complaint alleged, as a sentence enhancement, that the quantity of heroin involved exceeded one kilogram and that defendant was substantially involved in the planning, direction, execution, and financing of the offense (Health & Saf. Code,  11370.4, subd. (a)).

On May 3, 2001, a hearing was held to advise the trial court of a plea bargain that had been reached by the prosecutor, defendant, and three codefendants. At the hearing, the prosecutor orally amended the complaint. As to defendant, the prosecutor added one count for possession of heroin for sale on March 24, 2001, with the heroin involved exceeding one kilogram (Health & Saf. Code, 11351, 11370.4, subd. (a)) (count 4). Defendants maximum exposure on the orally amended count was seven years in state prison. The plea arrangement was that defendant would plead guilty to possession of heroin for sale, with the applicable enhancement, and would receive a sentence of four years in state prison.

After stating the charges and the plea arrangement for each defendant, the prosecutor, Sam Giammona, stated the following: It has also been brought to my attention within the past ten to fourteen days that there is another investigation of which this investigation was an off shoot, and that was involving federal possible federal charges. I have told the defendants that there are two things that I know to be true. One is that it is a customary practice for the federal government to dismiss complaints and/or indictments when there are state charges that cover the exact same charges and dates that have been resolved by way of a state plea. Its also my understanding that I would have no control over any federal charges or conspiracies that may or may not come about that involve behavior outside the scope of what we have outlined by these dates and by these charges.

The trial court then questioned each defendant to ensure that the guilty pleas contemplated would be knowing and voluntary. As to the amended complaint, defendant waived arraignment, advisement of rights, and any infirmities of the amendment. He informed the court that he understood what was happening in his case and that he had had enough time to talk to his attorney such that he understood the charges and his potential defenses. He was not under the influence of any drug, alcohol, or medication; no one had threatened him; and he was entering the plea freely and voluntarily for himself and not to help a codefendant or anyone else.

As to the issue of promises, the trial court queried all of the defendants together as follows: [H]ave any promises been made to you other than what has been indicated to you on the record earlier? [] In other words, we have told you what charges you are going to plead to and what the sentences are. So have any promises been made to you other than that? [] And again, what [the prosecutor] indicated as to the promises^[[1]] of his understanding of what the federal government will or will not do in relationship to this case. [] So any other promises . . . ? After the trial court stated each defendants name, each defendant, including defendant Romero, responded No.

Following additional questioning by the trial court, defendant indicated that he understood the maximum exposureon the orally amended count, the proposed disposition and sentence, and the potential consequences of pleading guilty to the felony charge. Defendant, thereafter, waived his trial rights and pleaded no contest to possession of heroin for sale (Health & Saf. Code, 11351; count 4). He further admitted the special weight enhancement (Health & Saf. Code, 11370.4, subd. (a)).

Defendants attorney joined in his waiver of constitutional rights and entry of plea. His attorney also stipulated, based on the police reports contained in the trial courts file, and the lab results, that there was a factual basis for the plea. The court found the pleas and waivers were made knowingly, intelligently, and voluntarily. The remaining count against defendant for conspiracy (count 1) was submitted for dismissal at the time of sentencing.

On June 4, 2001, the trial court sentenced defendant to the aggravated term of four years in state prison for possession of heroin for sale (Health & Saf. Code, 11351) and struck the additional punishment for the weight enhancement (Health & Saf. Code,  11370.4, subd. (a)) pursuant to Penal Code section 1385. The trial court also imposed fines and a fee. The remaining count against defendant for conspiracy (Pen. Code,  182, subd. (a)(1)) was dismissed. Defendant received a total of 109 days of custody credit. Defendant did not appeal from the judgment.

Federal Proceedings from 2001 to 2005

On April 11, 2001, prior to defendants change of plea hearing in state court, a superseding indictment was filed in United States District Court for the Northern District of California against defendant and others. Defendant was charged with conspiracy, and aiding and abetting another, to possess with intent to distribute, and to distribute, methamphetamine, cocaine, and heroin between approximately December 1, 1999, and April 3, 2001 (21 U.S.C. 846; 18 U.S.C. 2) (count 1). He was also charged with possession with intent to distribute one kilogram or more of heroin on or about March 24, 2001 (21 U.S.C. 841(a)(1)) (count 10). Neither defendants attorney nor prosecutor Giammona knew about the federal indictment at the time of defendants change of plea hearing in state court on May 3, 2001.

On June 4, 2001, the same date that defendant was sentenced in state court, defendant was placed into federal custody or held in custody subject to a federal hold.

On September 29, 2003, a superseding information was filed in federal court, charging defendant with one count of conspiracy to distribute heroin on or about March 24, 2001 (21 U.S.C. 846). Pursuant to an agreement with the United States Attorneys Office for the Northern District of California, defendant pleaded guilty to the charge on October 3, 2003.

On January 5, 2004, the federal court sentenced defendant to 70 months in prison. The federal court ordered that the term run concurrently with defendants state prison term and that defendant receive credits from March 24, 2001, through June 4, 2001, while he was in state custody.[2]

In early November 2004, after learning that he would not be released from federal prison until November 2008, defendant completed a form entitled INMATE REQUEST TO STAFF, asking the federal prison to do[u]ble check his release date. In the DISPOSITION section of the form, a prison staff member acknowledged that pursuant to the federal courts order, defendants federal sentence was to run concurrent to his state sentence, and he was entitled to credit for March 24, 2001, through June 4, 2001. The staff member indicated that on the day that defendants federal sentence beganJanuary 5, 2004he was still serving [his] state sentence. The staff member explained that defendant was given credit for the time period of March 24, 2001, through June 4, 2001, which reflected the date of arrest through the date of sentencing in state court. However, his federal sentence cannot begin to run before the date imposed which is January 5, 2004. Based on information currently on file, the staff member stated that defendants release date is November 22, 2008.

Thereafter, in an order filed January 14, 2005, the federal court indicated that it had come to the Courts attention that the language of the judgment might have caused some confusion with respect to the custody credits the Defendant is entitled to receive. To avoid confusion, the federal court revised the judgment to state that in addition to the custody credits defendant would otherwise be entitled to, he would receive credits from March 24, 2001, through June 4, 2001, while he was in state custody.

A few months later, in an order filed June 20, 2005,[3] the federal court denied a motion by defendant concerning his federal sentence. Defendant had argued in his motion that he should have been given time credit for all of the time he had served in custody from March 24, 2001 [through] and including January 5, 2004. In denying defendants motion, the federal court stated: This Court meant what it said. [Defendant] should receive credits from March 24, 2001 to June 4, 2001, the time period prior to his serving his state sentence. From the date of the federal judgment forward, [defendants] federal sentence was to run concurrently with the state sentence.

Subsequent State Proceedings in 2006

Defendants Petition for a Writ of Error Coram Nobis

On October 12, 2006, defendant filed a petition for a writ of error coram nobis in superior court, seeking to vacate the judgment and withdraw his plea. The petition was verified by defendants trial counsel. In the petition, defendant contended he was wrongfully induced to plead nolo contendere by unfillable promises made by the prosecution on May 3, 2001 at the change of plea hearing in state court. In the supporting memorandum of points and authorities, defendant claimed that he was led to believe that the prosecutor could control any potential federal charging stemming for the same circumstances and that a plea to the state case would abolish any potential similar federal charges. Defendant argued that the prosecutors assertions were false in view of the federal charges against him for the same underlying conduct. He maintained that he would not have accepted the plea agreement in state court if he had known the prosecutors assertions were untrue. He further asserted that he pleaded to the federal charges based on the presumption that he would get credit for his state prison time, but he did not receive credit for time served in state custody. Defendant reasoned that [i]f the writ of error coram nobis issues and the judgment is vacated, then the time spent i[n] prison would be considered state custody that is creditable against [his] federal sentence.

In a declaration in support of the petition, defendants trial counsel stated that after defendant was sentenced in state court, he learned that defendant had been federally indicted for the exact same transactions. . . . He explained that [t]he Bureau of Prisons will not give defendant time credits while in state custody because he was a sentenced state prisoner. Counsel asserted: Had I known that the federal government was going to prosecute defendant, I would not have plead and sentenced [sic] defendant in state court.

Defendants trial counsel maintained that the People made several representations to him. Counsel stated in his declaration: [T]he District Attorney represented to me that this was his case and that if [defendant pleaded] guilty and was sentenced in state court then [the] federal government would not proceed against him regarding this incident. [] I was assured by the People that it is not a customary practice for the federal government to proceed on the same transaction if the defendant in the state case accepts the plea offered by the People. [] I was further assured that if any charges were brought by the federal government that was within the scope of what was outlined in the state case then there would be some type of accommodations made to allow [defendant] to receive credit for time served after accepting the plea in the state case.

Counsel explained that the federal government did not dismiss the criminal charges against defendant regarding the same transaction, and a plea agreement was eventually reached in the federal case. Counsel stated that he believed at the time, as assured by the People, and by the representative of the federal government that [defendant] would receive credits for the time he served in state prison. After defendant began serving time in federal prison, counsel was informed that defendant would not receive credit for time served between accepting the plea agreement in the state case and accepting the plea in the federal case and would not be released until November 28, 2008. According to counsel, if defendant is allowed to withdraw his plea in state court, then all the time he spent in state prison after accepting the plea would be allowed to be credited to his current federal prison term.

After defendant filed the petition for a writ of error coram nobis, the trial court issued an order to show cause. The trial court indicated that it was not clear that coram nobis, rather than habeas corpus, was the appropriate vehicle, but in either event [defendant] . . . presented a prima facie case for relief. The trial court directed the People to file responsive papers and defendant to file reply papers.

The Peoples Response to the Petition

In a response filed on November 17, 2006, the People acknowledged that the sentences in state court and federal court were to punish the exact same conduct by [defendant], transporting a large amount of heroin on March 24, 2001. The People contended, however, that the deputy district attorney never promised that there would be no federal prosecution for the same conduct by defendant, or that federal charges would be dismissed. Rather, the deputy district attorney merely told defendant the usual policy regarding such a circumstance and indicated that he would have no control over federal charges that may or may not involve behavior outside the scope of the charges to which defendants were going to enter pleas. The People asserted that the usual federal policy . . . does not apply when the matter involves a substantial federal interest and the state prosecution has left that interest demonstrably unvindicated and cited to a document purportedly setting forth the guidelines for the exercise of discretion by appropriate officers of the Department of Justice in determining whether to bring a federal prosecution based on substantially the same act(s) or transactions involved in a prior state or federal proceeding.

The People provided a January 2003 declaration from Giammona, the deputy district attorney who prosecuted the case against defendant. According to Giammonas declaration, which apparently was prepared in response to a habeas corpus petition by another defendant, the district attorneys office assisted in a federal investigation that resulted in the state criminal charges against defendant and others. Giammona explained that he did not have specific information as to whether the defendants would be prosecuted federally at the time they changed their pleas in state court. However, [he] was aware of the federal practice of dismissing or declining to prosecute federal cases after a defendant has been convicted in state court for the same conduct, and he informed the defendants at the time they changed their pleas of his understanding of the United States Attorneys practice regarding dual and successive prosecutions. Giammona stated: I made no promises to the defendants concerning any federal prosecution because I do not have control over federal cases. Giammona also maintained that the Assistant United States Attorney that he spoke to seemed delighted after being informed of the conditions of the state plea. Thus, he was surprise[d] to learn weeks after the plea that the United States Attorneys Office was interested in the case and again surprised when he eventually learned that an indictment had been filed in federal court against the defendants for similar criminal conduct.

The People agreed with defendant that he should have received credit for the time period during which he was in federal custody but serving his state sentenceJune 4, 2001, through January 5, 2004based on the language in the federal court orders that provided for concurrent state and federal prison sentences and for custody credits. However, the error, according to the People, in calculating defendants prison time was by federal court and federal prison authorities, and not the state court or district attorneys office.

The People contended that defendants petition for a writ of error coram nobis should be denied because he failed to identify facts that he did not know about that would have prevented the rendition of judgment, he failed to justify his delay in seeking relief, and there was no requirement that he be advised as to the federal law relating to his case.

Defendants Reply

Defendant filed a reply on February 21, 2007, explaining that he was not claiming that Giammona acted in bad faith during the change of plea negotiations. Rather, he only sought to correct the misunderstanding by all the parties which ultimately resulted in [defendant] not receiving certain custody credits in the federal system for the time he was in state custody . . . . Defendant also asserted that he was led to believe that a plea to the state case would abolish any potential similar federal charges. Defendant further contended that his petition was timely because he did not know until November 2, 2005, that the federal prison would deny him custody credits for time he served in a California prison, and he thereafter attempted to obtain relief in federal court. Lastly, defendant requested an evidentiary hearing to the extent there were factual disputes, the trial court needed additional evidence, or the trial court had any doubt that the petition should be granted.

The Trial Courts Order

By order filed March 26, 2007, the trial court denied defendants petition for a writ of error coram nobis. The trial court explained that the petition may be granted if three requirements are met, including a showing by the petitioner that some fact existed which, without fault of [petitioners] own, was not presented to the court at the trial on the merits, and which if presented would have prevented the rendition of the judgment; . . . (People v. Ibanez (1999) 76 Cal.App.4th 537, 544.) [(Ibanez)] The trial court found that defendant failed to show any fact which would have prevented judgment. The trial court reasoned: There was no promise made by the state prosecutor Giammona as to the federal charges or custody credits [defendant] would receive in federal prison. The statements that [defendant] attributes to Giammona cannot in anyway be construed as such a promise. In fact, when [defendant] learned of the federal charges, he nonetheless [pleaded] to them and did not attempt to challenge the state plea at that time. It was only after nearly 5 years after his state plea and 3 years after his federal plea when he learned that the federal prison would not award him the custody credits he believed that he was entitled to and that he could not get the relief he sought in federal court that he brought the instant writ. The fact that the federal prison will not award him credits does not provide a basis for coram nobis relief in state court. There is no showing that the amount of credits he would receive in federal court would have stopped the proceedings in state court.

Defendant filed a notice of appeal from the trial courts order on May 10, 2007.

III. DISCUSSION

On appeal, defendant contends that his petition for a writ of error coram nobis should have been granted. First, he argues that at the change of plea hearing in state court, the trial court did not know that his no contest plea was not knowing and intelligent. Defendant claims that prosecutor Giammonas misleading assurance that he would not be federally prosecuted for the same conduct induced him to plead guilty based upon a mistake of fact. He further asserts that statements by Giammona and the trial court during the plea colloquy led [defendant] to believe that, if he [pleaded] no contest to drug possession in return for a 4-year state prison sentence, he would not suffer additional federal punishment for the same conduct[.] Because of his inaccurate understanding or materially false factual belief that he faced no risk of additional federal prosecution and punishment, defendant argues that his no-contest plea in state court was notknowing and intelligent and, had the trial court known this, it would have been obligated to reject the plea.

Second, defendant maintains that his petition does not go to the merits of any facts determined at trial.

Third, he asserts that he exercised due diligence in bringing the coram nobis petition. Defendant explains that [o]nly after [he] had exhausted his federal remediesincluding two motions to the U.S. District Court to obtain credits for the time he was subject to the federal holddid it become clear to [him] that his understanding at the time of his state no-contest plea was seriously in error.

Because we find the first issue to be dispositive, we do not reach defendants other contentions.

Standard of Review

The proper procedure for withdrawal of a plea after judgment is a motion to set aside the judgment and to permit a withdrawal of the plea. Such a motion is in the nature of, and is subject to the rules governing, an application for a writ of coram nobis. [Citation.] (People v. Thomas (1955) 45 Cal.2d 433, 439 (Thomas).) The writ of coram nobis is, however, of narrow scope. (People v. Adamson (1949) 34 Cal.2d 320, 326.) The writ of coram nobis is granted only when three requirements are met. (1) Petitioner must show that some fact existed which, without any fault or negligence on his part, was not presented to the court at the trial on the merits, and which if presented would have prevented the rendition of the judgment. [Citations.] (2) Petitioner must also show that the newly discovered evidence . . . [does not go] to the merits of issues tried; issues of fact, once adjudicated, even though incorrectly, cannot be reopened except on motion for new trial. [Citations.] . . . (3) Petitioner must show that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ. . . . [Citations.] (People v. Shipman (1965) 62 Cal.2d 226, 230.) The defendant has the burden of proof to overcome the strong presumption in favor of the validity of the judgment . . . . (People v. Stapleton (1956) 139 Cal.App.2d 512, 513.)

A writ of coram nobis is generally used to bring factual errors or omissions to the courts attention. [Citation.] (Ibanez, supra, 76 Cal.App.4th at p. 544.) The writ will lie to vacate a guilty plea where the defendant was induced to plead in reliance on an unkept promise by a reliable public official. (People v. Wadkins (1965) 63 Cal.2d 110, 113; People v. Phillips (1968) 263 Cal.App.2d 423, 426-427.) It does not lie to correct legal error. (Ibanez, supra, 76 Cal.App.4th at p. 547.) The only exception to this rule occurs where the error is jurisdictional, such as a complete failure of subject matter jurisdiction. (Ibid.) In People v. McElwee (2005) 128 Cal.App.4th 1348, the Court of Appeal affirmed the trial courts denial of a petition for a writ of error coram nobis, explaining that defendants belief at the time of his plea that he would be paroled and would only serve 15 years in prison was not a mistake of fact but one of law. (Id. at p. 1352.) In Ibanez, supra, 76 Cal.App.4th 537, the Court of Appeal reasoned that the defendants failure to recognize that his plea may possibly have civil commitment consequences under [Welfare and Institutions Code section 6600 et seq.] is an error of law, and a coram nobis petition cannot be used to correct legal error. (Id. at p. 547.)

Coram nobis will not issue to vacate a plea of guilty solely on the ground that it was induced by misstatements of counsel [citation] or where the claim is that the defendant did not receive effective assistance from counsel [citations]. (People v.Gallardo (2000) 77 Cal.App.4th 971, 982-983.)

A trial courts denial of a coram nobis petition is an appealable order. (People v. Dubon (2001) 90 Cal.App.4th 944, 950; People v. Totari (2002) 28 Cal.4th 876, 887 (Totari).) In an appeal from a trial courts denial of an application for the writ of error coram nobis, a reviewing court initially determines whether defendant has made a prima facie showing of merit; if not, the court may summarily dismiss the appeal. [Citations.] (Totari, supra, 28 Cal.4th at p. 885, fn. 4.) On the merits, an appellate court reviews the trial courts denial of a petition for writ of error coram nobis for abuse of discretion. (Ibanez, supra, 76 Cal.App.4th at p. 544.)

In this case, the trial court liberally interpreted defendants petition and supporting papers and found that he made a prima facie showing. After receiving further briefing and evidence, the trial court denied the petition. We will accept the trial courts determination that a prima facie case has been shown by defendant and thus turn to the merits. As we shall explain, we find that the trial court did not abuse its discretion in denying the petition.

Analysis

Defendant contends he was induced to plead guilty based upon a mistake of fact. He claims that prosecutor Giammonas comments misled him into believing he would not be prosecuted in federal court for the same conduct, and that the prosecutors and the trial courts statements led him to believe the no-contest plea in state court would prevent additional punishment under federal law.

In denying defendants petition for writ of error coram nobis, the trial court determined that the prosecutors comments could not be construed as making a promise concerning federal charges or custody credits in federal prison. The trial court observed that defendant pleaded guilty in federal court, and he did not attempt to challenge his no-contest plea in state court at that time. Rather, he brought the petition nearly five years after his state plea and three years after his federal plea, and only after learning he would not receive certain custody credits and making unsuccessful efforts to obtain relief in federal court. The trial court thus implicitly found that it was defendants dissatisfaction with custody credits towards his federal prison sentence, over which the state court had no control, that formed the basis for defendants petition, rather than a no-contest plea that was reasonably induced by the comments of the prosecutor or the judge.

The record supports the trial courts findings. To be entitled to coram nobis relief, defendant must establish that his reliance on the statements of the prosecutor or the judge was reasonable. (People v. Chaklader (1994) 24 Cal.App.4th 407, 413.) In this case, the prosecutor informed defendant and his attorney at the plea hearing that federal charges were possible. Although the prosecutor also stated that it was customary for the federal government to dismiss indictments when state charges covering the same conduct have been resolved by way of a state plea bargain, he did not make any promise to defendant in this regard.[4] On appeal, defendant acknowledges that he was not entitled to treat the prosecutors statement as a contractual promise . . . .

In addition, the prosecutors comment that he would have no control over any federal charges that involve behavior outside the scope of what was encompassed by the charges in state court, did not, as defendant contends, assure as its logical corollary, that the prosecutor did have control over federal charges based on behavior within the scope outlined by [defendants] state plea. Taken as a whole, the record of defendants plea in state court does not reflect any statement by the prosecutor or the trial court that would reasonably suggest that these public officials could control any federal charges or federal sentencing decisions involving defendant.

Moreover, on appeal defendant does not claim that he misunderstood the law regarding dual prosecutions . . . in state and federal court, nor does he claim that he had any  enforceable rights concerning the federal governments policy on dual or successive prosecutions. In this regard, defendant acknowledges that an individual may be prosecuted in federal court for the same acts underlying a state conviction.

Further, at the time defendant pleaded guilty in federal court in October 2003, and certainly by the time he was sentenced in federal court in January 2004, to five years and 10 months in federal prison, defendant knew he faced charges in federal court and knew that his federal sentence could be, or was, longer than his state sentence of four years. Defendant did not, however, file the petition for writ of error coram nobis concerning his state plea until October 2006, following unsuccessful efforts in federal prison and in federal court to obtain more custody credits towards his federal sentence.

In view of the entire record, the trial court could reasonably conclude that defendant was aware of the risks of federal charges and federal prison time, and that he made a calculated decision to enter the no-contest plea in state court with only a hope that any federal charges would be resolved in his favor.[5] (See People v. Chaklader, supra, 24 Cal.App.4th at p. 413 [affirming order denying coram nobis relief where defendant reasonably had only a hope that his federal sentence would be concurrent with his state sentence].) In the absence of reasonable reliance on the statements of responsible officials, as shown by this record, [defendant] was not entitled to coram nobis relief. (Ibid.)

IV. DISPOSITION

The order denying the petition for writ of error coram nobis is affirmed.

_______________________________________________________

Bamattre-Manoukian, ACTING P.J.

WE CONCUR:

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MIHARA, J.

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MCADAMS, J.

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[1]On appeal, the People suggest that the trial court may have said premises and that the word promises in the reporters transcript may be a misspelling.

[2]The People note that considering the possibility of [defendant] having earned credits for good time, work time, and pre-sentence credits against his state sentence, it was possible, and perhaps likely, that [he] had fully completed his four-year state prison sentence by the time he was sentenced in federal court on January 5, 2004.

[3] By order filed December 4, 2007, we granted defendants motion to augment the record on appeal in part, to include page two of the federal courts June 20, 2005 order.

[4] Defendants trial attorney asserted in a declaration in support of the petition for writ of error coram nobis that he had been assured that if federal charges were brought, there would be some type of accommodations made to allow [defendant] to receive credit for time served after accepting the plea in the state case. This assurance does not appear in the reporters transcript of the change of plea hearing and, to the extent it was made off the record to defendants attorney and communicated to defendant, the attorneys declaration conflicts with defendants denial during the hearing that any promises had been made to him other than those indicated on the record.

In any event, this vague assurance regarding some type of accommodations for credit after the plea in state court proved to be true. Defendant changed his plea in state court on May 3, 2001, and the federal court ordered that defendant receive credits for the time period of March 24, 2001, through June 4, 2001. Defendant thus received some credits towards his federal sentence for time served following his change of plea in state court.

[5] We observe that defendants petition was not supported by a declaration from him to the effect that he was induced to plead no contest in state court based on a misleading representation by the prosecutor or the trial court. The declaration filed in support of the petition was from defendants attorney and indicated, at most, that the attorney had received certain assurances from the prosecutor. There is no evidence as to whether or to what extent those assurances were communicated to defendant, or to what extent, if any, defendant relied on those assurances.