Yellowwolf v. Morris, s. 75-1300

• Citation: 536 F.2d 813
• Decision Date: 12 April 1976
• Docket Number: Nos. 75-1300,75-1546,s. 75-1300
• Parties: Lester YELLOWWOLF, Jr., Petitioner-Appellant, v. Charles MORRIS, Secretary, Department of Social and Health Services, Respondent-Appellee. Frank A. MIESBAUER, Petitioner-Appellant, v. Charles MORRIS, Secretary, Department of Social and Health Services, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 813

536 F.2d 813

Lester YELLOWWOLF, Jr., Petitioner-Appellant, v. Charles MORRIS, Secretary, Department of Social and Health

Services, Respondent-Appellee.

Frank A. MIESBAUER, Petitioner-Appellant, v. Charles MORRIS, Secretary, Department of Social and Health

Services, Respondent-Appellee.

Nos. 75-1300, 75-1546.

United States Court of Appeals, Ninth Circuit.

April 12, 1976.

As Amended on Rehearing June 16, 1976.

Richard D. Emery (argued), Prison, Legal Services Project, Seattle, Wash., for petitioners-appellants.

William C. Collins, Asst. Atty. Gen. (argued), Olympia, Wash., for respondent-appellee.

OPINION

Before CHOY and GOODWIN, Circuit Judges, and REAL, ^* District Judge.

CHOY, Circuit Judge:

Yellowwolf and Miesbauer each applied for a writ of habeas corpus on the ground that this court's ruling in United States ex rel. Pebworth v. Conte, 489 F.2d 266 (9th Cir. 1974), should be applied retroactively. The district court dismissed the petitions. We affirm.

Yellowwolf was charged with grand larceny in Yakima County, Washington and appeared for arraignment on June 19, 1969. He was informed that he had a right to counsel before he entered a plea to the charge and a right to appointed counsel if he was without funds. He waived the right to counsel. The court asked Yellowwolf if he was fully aware of the nature of the charge and if he realized that it was a penitentiary offense, and he responded to both in the affirmative. The court further advised Yellowwolf that he could have additional time to consider his plea. Yellowwolf stated that he was ready to plead, and he pleaded guilty. He was then asked if he was entering his plea voluntarily, without being forced, coerced, or threatened. Yellowwolf acknowledged that he was pleading guilty because he was guilty. The court then asked him if he was pleading guilty with the knowledge and understanding that he had a right to a jury trial, to subpoena witnesses in his behalf, and to confront his accusers. Yellowwolf said that he understood these rights. His plea of guilty was then accepted. Four days later, he was sentenced to fifteen years imprisonment under the Washington indeterminate sentence statute, Rev.Code Wash. § 9.95.010.

Miesbauer was charged with grand larceny in Clark County, Washington and appeared for arraignment on November 9, 1962. After a preliminary inquiry into his background, the court asked the defendant if he had consulted an attorney. Miesbauer said that he had not, and he stated that he thought he was guilty. He was then informed of his right to counsel and to appointed counsel if he was without funds and asked if he desired appointed counsel. Miesbauer indicated his desire to "get it over with" and stated that he was guilty. He waived his right to counsel and the arraignment proceeded. The prosecuting attorney then read the charge. The court asked if the charge was understood, and Miesbauer said that it was.

The court gave Miesbauer a deferred sentence under Rev.Code Wash. § 9.95.210. He was placed on probation for two years and was told that if he complied with the terms of the probation he would be allowed to change his plea and clear his record. He was admonished that if "you (Miesbauer) go out and steal any more cars, then you're on your way to the State Reformatory for about three and a half years minimum." Approximately five months later he was charged with probation violation. He was represented by counsel when he appeared at the revocation hearing. He did not ask permission to withdraw his guilty plea, although he was made aware that he was to be sentenced to the state penitentiary.

Having exhausted state remedies, ¹ Yellowwolf and Miesbauer each petitioned the district court for a writ of habeas corpus. They contended that their guilty pleas were invalid as not having been made voluntarily and intelligently since they had not been informed of their potential maximum sentences at the times of the pleas. A similar claim was upheld by this court in United States ex rel. Pebworth v. Conte, 489 F.2d 266 (9th Cir. 1974). Nonetheless, the district court, treating them together, dismissed the petitions. From that decision, the petitioners here appeal.

The question posed is whether our decision in Pebworth should be applied retroactively to guilty pleas entered prior to January 2, 1974, the date of the Pebworth opinion.

Pebworth involved a factual situation similar to these: a petition for habeas corpus alleging that the petitioner's guilty plea given years before was made without knowledge of the range of punishments that could be imposed. This court remanded for an evidentiary hearing to determine whether he had been in fact aware of the possible sentence and ruled that if the answer was negative, the plea and the conviction should be vacated, giving the state the choice of retrying or releasing him.

The requirement that a plea of guilty must be intelligent and voluntary to be valid has long been recognized. Brady v. United States, 397 U.S. 742, 747-48 nn. 4-6, 90 S.Ct. 1463, 1468-69, 25 L.Ed.2d 747, 756 (1970); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). There are two distinct elements involved in analyzing the validity of a guilty plea. One is whether the act was "voluntary." The other is whether the defendant's trial rights have been effectively waived, which requires that the act be "intelligent." Schneckloth v. Bustamonte, 412 U.S. 218, 238 n. 25, 93 S.Ct. 2041, 2053, 36 L.Ed.2d 854, 869 (1973). To qualify as an intelligent waiver of constitutional rights, the guilty plea must be made "with sufficient awareness of the relevant circumstances and likely consequences." Brady, 397 U.S. at 748, 90 S.Ct. at 1469, 25 L.Ed.2d at 756.

Pebworth represents a specific application and extension of this "intelligence" prerequisite. Prior to Pebworth this court had not specifically identified the potential sentence as an individual factor so important as to be essential for an intelligent guilty plea. ² Instead, we have moved slowly and cautiously in singling out particular bits of knowledge as necessary. ³

In so identifying the maximum potential sentence, Pebworth did not state that ignorance of the potential sentence was necessarily prejudicial; that such non-awareness always served to induce a plea of guilty and a waiver of rights that would not have otherwise been given. ⁴ Rather, the Pebworth rule is prophylactic in intent, designed to prevent a prejudicial effect in any case by imposing a more easily reviewable requirement in every case. ⁵ In that way it is similar to other dictates announced in recent years concerning the acceptance of guilty pleas. See, e. g., Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); United States v. Myers, 451 F.2d 402 (9th Cir. 1972).

We note that the rules announced in those cases have not been given retroactive effect. See, respectively, Moss v. Craven, 427 F.2d 139 (9th Cir. 1970); Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969); Bender v. United States, 478 F.2d 332 (9th Cir. 1973). As observed in Michigan v. Payne, 412 U.S. 47, 53-54, 93 S.Ct. 1966, 1969-70, 36 L.Ed.2d 736, 743-44 (1973), it is appropriate to limit to prospective application decisions which announce prophylactic protections without conferring new constitutional rights. We hold, therefore, that Pebworth should not be applied retroactively.

Even if they cannot invoke the Pebworth rule, however, Yellowwolf and Miesbauer further contend that they are entitled to relief on the general ground, noted above, that their guilty pleas were not knowing and voluntary. Specifically, each argues that he would not have pleaded guilty had he known that the potential sentence could be as great as it turned out to be. Since the prior case law on voluntariness and intelligence remains available to those whose pleas of guilty were entered before Pebworth was announced on January 2, 1974, a petitioner who demonstrates such actual prejudice is entitled to relief.

We vacate the district court's dismissal as to Yellowwolf's petition and remand to the district court to deal with his contention.

In the case of Miesbauer, however, we believe that the existing record establishes that he was not so prejudiced. It may be that he was not aware of the potential sentence when he entered his plea, but at that time he was given probation, so he had nothing of which to complain. It was five months later, when he was charged with violation of probation and his probation was suspended, that he was sent to the penitentiary. At that time he was represented by counsel and was made aware of the consequences, but he did not ask permission to withdraw his guilty plea or raise any objection to the first proceeding. We note further that Miesbauer's petition for habeas corpus, unlike Yellowwolf's never stated directly that he would not have pleaded guilty had he...