Caputo v. Henderson, 944

• Decision Date: 03 September 1976
• Docket Number: No. 944,D,944
• Citation: 541 F.2d 979
• Parties: Vincent CAPUTO, Petitioner-Appellant, v. Robert J. HENDERSON, Superintendent, Auburn Correctional Facility, Respondent-Appellee. ocket 76-2009.
• Court: U.S. Court of Appeals — Second Circuit

Page 979

541 F.2d 979

Vincent CAPUTO, Petitioner-Appellant, v. Robert J. HENDERSON, Superintendent, Auburn Correctional Facility, Respondent-Appellee.

No. 944, Docket 76-2009.

United States Court of Appeals Second Circuit.

Argued April 30, 1976.

Decided Sept. 3, 1976.

Allen M. Kranz, Legal Aid Society of Nassau County, Mineola, N. Y. (James J. McDonough, Matthew Muraskin, Legal Aid Society of Nassau County, Mineola, N. Y., of counsel), for petitioner-appellant.

David L. Birch, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for respondent-appellee.

Before LUMBARD, WATERMAN and MESKILL, Circuit Judges.

MESKILL, Circuit Judge.

Vincent Caputo appeals from an order of the United States District Court for the Eastern District of New York, Weinstein, J., denying his petition for a writ of habeas corpus. On appeal, Caputo contends that his guilty pleas in a state criminal prosecution must be vacated as neither voluntarily nor knowingly entered because the trial court misinformed him about sentencing alternatives just prior to his entering his plea. Because we perceive no clear error in Judge Weinstein's conclusion, found after an evidentiary hearing, that appellant did not in fact rely on the misinformation in deciding to enter his guilty plea, we affirm the denial of the writ.

Caputo was arrested in Malverne, Long Island on July 26, 1972, in the yard of a house that had just been burglarized. He subsequently gave a statement to two detectives, the voluntariness of which has never been challenged, that he had broken into the house. On September 28, 1972, he was indicted for the crimes of burglary in the third degree, criminal possession of stolen property in the second degree, and possession of burglar's tools. While at the Nassau County Jail Caputo was examined by a physician on October 4, 1972 and found to be addicted to drugs. On October 11, 1972, after conferring with his attorney Paul Wershals, Caputo pleaded guilty to attempted burglary in the third degree in full satisfaction of the indictment. After establishing on the record a factual basis for the plea, the county court advised appellant about sentencing alternatives as follows:

The Court: All right. Now, a conviction, of course, carries with it other possibilities, the possibility of sentence, and I will tell you what the possibilities are here. First let me say that I am informed that you have been examined and reported to be addicted to narcotics or dangerous drugs, and you will have the right, at the time of sentence, to admit your addiction or to deny your addiction or to stand mute, if you prefer.

If you stand mute or you deny your addiction, then you will have the right to have a jury trial or a trial without a jury on the issue.

If you are found to be an addict, then there is a possibility of a sentence to the Narcotics Addiction Control Commission for an indeterminate term, up to 60 months.

Do you understand that?

The Defendant: Yes.

The Court: On the other hand, there is no requirement that you be sent there but there is the possibility of a sentence under the Penal Law, instead of the Mental Hygiene Law; and I will tell you what those possibilities of sentence are.

There is a possibility of a sentence to a state prison for an indeterminate term, up to four years, a possibility of sentence to a County Jail for up to one year, the possibility of probation for a period of up to five years, a conditional discharge, and there is also a possibility of an unconditional discharge.

At the time of Caputo's sentencing, the state court had discretion either to sentence an addict to an indeterminate sentence under the applicable provisions of the penal law or to commit him to the Narcotics Addiction Control Commission ("NACC") for an indeterminate period up to a maximum of 60 months. ¹ Expressly limited to these two possibilities by statute, ² the court could not have sentenced Caputo to the county jail, given him a conditional or unconditional discharge, or put him on probation.

At sentencing on November 20, 1972, appellant admitted his addiction to drugs. The court elected to impose the penal sanction of an indeterminate term of imprisonment with a maximum of four years rather than committing him to the NACC. The conviction was affirmed by both the Appellate Division and the Court of Appeals. People v. Caputo, 44 A.D.2d 572, 353 N.Y.S.2d 36 (2d Dept. 1974), aff'd, 36 N.Y.2d 653, 365 N.Y.S.2d 847, 325 N.E.2d 164 (1975). ³

Caputo then brought this petition for a writ of habeas corpus.

The federal district court held an evidentiary hearing to determine whether the sentencing misinformation affected Caputo's decision to enter a guilty plea such that the plea was not entered with full knowledge of its consequences. Caputo testified that he believed that all the alternatives outlined by the sentencing judge were available and that no one had advised him otherwise prior to his plea. He denied that his attorney had told him of a possible jail term of up to four years before he pleaded. Although he also denied making a statement in his affidavit that his attorney had so advised him, his memory was refreshed by the affidavit itself. ⁴ Caputo stated that he "was going to plead guilty that day" but that he "still had a doubt." Paul Wershals, Caputo's attorney at the time of the plea, testified that he had told appellant that a guilty plea probably would mean in indeterminate prison term of up to four years or a indeterminate term with the NACC. ⁵ Wershals stated that the evidence against Caputo was so overwhelming that there would have been a "very good chance" of conviction had he gone to trial. Wershals' conclusion was that if Caputo's choice had been between a trial with a chance of a seven year sentence or commitment to the NACC and pleading guilty with a maximum sentence of four years or commitment to the NACC, he felt that Caputo would have entered a guilty plea. Denying the writ of habeas corpus, the district court found that "on the basis of the evidence . . . the defendant would have pleaded in any event exactly as he did, whatever the judge told him about alternatives, and the error of the Court, therefore, in proposing alternatives that were not in fact available had no impact at all on the plea."

There is no doubt that the state trial court provided misinformation about sentencing alternatives by listing possibilities it could not have administered in addition to those it was authorized to impose. Since the trial court record thus did not affirmatively show that Caputo's plea was voluntary, with full knowledge of its consequences, Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the federal district court quite properly held an evidentiary hearing to determine if the plea was voluntary as a matter of fact. United States ex rel. Hill v. Ternullo, 510 F.2d 844 (2 Cir. 1975); Todd v. Lockart, 490 F.2d 626 (8 Cir. 1974). Caputo first argues that the sole question to be determined by the district court is whether he was fully aware of the actual sentencing alternatives available when he entered his plea. He contends that if he is found to have lacked such awareness, his plea must be vacated without consideration of whether the misinformation affected his decision to enter the guilty plea. Alternatively, he asserts that, even if applicable, the district court's finding that he did not rely on the misinformation in deciding to plead is clearly erroneous. We disagree with both propositions.

This Court's recent opinion in Kelleher v. Henderson, 531 F.2d 78 (2 Cir. 1976), discussed the test for assessing the constitutional validity of a guilty plea entered in a state court. Kelleher claimed that his plea was constitutionally infirm because he allegedly was unaware of the maximum and minimum sentencing possibilities. The district court concluded that, even though Kelleher had not been informed by the state judge or his attorney of the possible maximum or minimum sentences, the plea was valid because Kelleher failed to persuade the court that his lack of knowledge affected his ability to make an intelligent decision. This Court affirmed. Because we so frequently must review cases involving collateral attacks on guilty pleas, we deem it appropriate to reiterate the analytic rationale used in Kelleher as it relates to the instant case.

The federal trial courts, governed by the requirements of Fed.R.Cr.P. 11, must determine whether a defendant understands "the consequences" of a guilty plea by addressing the defendant personally. After the Supreme Court's decision in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), failure to comply with Rule 11 required vacatur of a federal guilty plea. In Jones v. United States, 440 F.2d 466 (2 Cir. 1971), this Court held that the maximum possible sentence is a "consequence" of a plea. Thus, after McCarthy, unawareness of maximum sentence would require automatic vacatur of the plea because of noncompliance with Rule 11. In Jones, however, the plea was taken prior to McCarthy, and therefore noncompliance with the Rule did not require automatic vacatur. Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969). Our conclusion in Jones was that automatic vacatur did not follow as a matter of constitutional law. Instead we remanded for an evidentiary hearing to assess

whether Jones was aware of the maximum possible sentence at the time of his guilty plea and, if not, whether Jones would not have pleaded guilty if he had been so aware.

440 F.2d at 468. See also United States v. Welton, 439 F.2d 824 (2 Cir.), cert. denied, 404 U.S. 859, 92 S.Ct. 157, 30 L.Ed.2d 102 (1971); Serrano v. United States, 442 F.2d 923 (2 Cir.), cert. denied, 404 U.S. 844, 92 S.Ct. 145, 30 L.Ed.2d 80 (1971). Thus, insofar as the federal courts are concerned, "where violation of...