United States of America, Plaintiff-appellee, v. Martin Edward Walters, Aka Oscar, Defendant-appellant, 980 F.2d 740 (9th Cir. 1992)

The gravamen of Walters' involuntariness claim is that the district court and his counsel misrepresented the maximum possible penalty on one of the counts. The record shows that at the sentencing hearing the district court erroneously informed Walters that the possible maximum sentence for the count of conspiracy to manufacture with intent to distribute methamphetamine was imprisonment without possibility of parole. Walters argues that he would not have decided to enter into the plea agreement if he had known that the possible consequences of proceeding to trial were less severe.

We find, however, that Walters was not actually harmed by the misrepresentation at his sentencing hearing. The mistake was discovered and brought to Walters' attention at least one month before sentence was actually imposed. Before entry of the sentence, Walters' counsel informed the district court that he had explained the misrepresentation of the possible maximum sentence to Walters. In response to questioning from the court, Walters indicated that he was aware of the error, understood the correct possible sentence and, nevertheless, would still plead guilty. Walters has made no showing that his decision to reaffirm his guilty plea at sentencing was affected by the earlier misrepresentation. We find that Walters' guilty plea was voluntary and a fortiori will not result in a miscarriage of justice.

Walters contends that an atmosphere of coercion existed that negated the voluntariness of his guilty plea. In addition to the misrepresentation of the maximum possible sentence, he cites being in solitary confinement, being represented by multiple attorneys, and being subject to undue time pressures regarding state and federal trial dates as circumstances contributing to coercion. Walters has not demonstrated how these factors negated the voluntariness of his guilty plea. A bare allegation of coercion, unsupported in the record, is not sufficient to set aside a guilty plea. United States v. Sutton, 794 F.2d 1415, 1422 (9th Cir. 1986).

Walters also argues that his counsel's failure to advise him properly about the maximum sentence constitutes ineffective assistance of counsel. Claims of ineffective assistance of counsel, while ordinarily more properly brought in habeas corpus proceedings, may be reviewed on direct appeal if the record is sufficiently developed to permit review and determination of the issue. United States v. Robinson, No. 90-10433, slip op. 6667, 6673 (9th Cir. June 15, 1992). In order to prevail on an ineffective assistance claim, Walters must show that his counsel's performance was deficient and the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 665, 687 (1984); see also Hill v. Lockhart, 474 U.S. 52, 58 (1985) (applying Strickland to challenge to guilty plea based on ineffectiveness of counsel).

Walters has failed to demonstrate how he was prejudiced by his attorney's initial failure to apprise him of the correct sentence. Even after Walters' attorney informed him of the correct maximum sentence and Walters was given an opportunity by the court to withdraw his guilty plea, he declined to do so. Because we find that Walters' guilty plea was voluntary, the record is sufficiently developed for us to determine that Walters was not prejudiced by any ineffective assistance of counsel. The judgment of the district court is AFFIRMED.