Donald Robert Mathes v. United States

This is an appeal by Donald Robert Mathes from the Order of the Trial Court denying Motion to Vacate or Set Aside Sentence under 28 U.S.C.A. § 2255 .

Appellant was indicted in November, 1956, with others, in a five count indictment alleging violations of Title 21, U.S.C.A. § 174 , charging “Sales of heroin and conspiracy to sell heroin”. Appellant was named in substantive counts one and four, and in the conspiracy count five. He was later arraigned and entered a plea of not guilty. On February 12,1957, the date set for trial, appellant asked permission from the court to withdraw his previous plea. Appellant claims that government counsel stipulated and agreed not to prosecute count four if a guilty plea were made on counts one and five. The previous not guilty plea was withdrawn at that time and Appellant entered a plea of guilty to counts one and five. The matter was referred to the Probation Officer for pre-sentence investigation, and continued to March 4, 1957 at 11:00 A.M. for sentence on counts one and five, and disposition of count four.

On that date, in Appellant’s presence, but in the absence of both his counsel and the United States attorney, the Court sentenced the…