Armstrong v. Egeler
| Citation | 563 F.2d 796 |
| Decision Date | 10 October 1977 |
| Docket Number | No. 77-1016,77-1016 |
| Parties | James W. ARMSTRONG, Petitioner-Appellant, v. Charles E. EGELER, Warden, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Gregory Drutchas, Kitch & Suhrheinrich, Richard R. DeNardis, Detroit, Mich., for petitioner-appellant.
Frank J. Kelley, Atty. Gen. of Mich., Robert A. Derengoski, Sol. Gen., Thomas L. Casey, Asst. Atty. Gen., Lansing, Mich., for respondent-appellee.
Before PHILLIPS, Chief Judge, and CELEBREZZE and ENGEL, Circuit Judges.
In this appeal we are called upon to decide whether a plea of guilty to murder, otherwise voluntarily and intelligently made, must nonetheless be set aside as violative of the petitioner's rights to due process because the record of the plea is silent on whether the petitioner knew that the mandatory penalty of life imprisonment was not subject to parole. Upon the facts of this case, we hold that due process was not offended by the state trial judge's failure specifically to inform petitioner of this fact and affirm the judgment of the district court.
Petitioner James W. Armstrong was brought to trial in the Circuit Court for the County of Genesee, Michigan, on the charge that on June 23, 1962, he shot and killed one Ann Kelush, a cashier, in the course of the armed robbery of a grocery store in the city of Flint.
At the time of Armstrong's conviction, Mich. Comp. Laws § 750.316 provided:
FIRST DEGREE MURDER All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery or burglary, shall be murder of the first degree, and shall be punished by solitary confinement at hard labor in the state prison for life.
During the third day of Armstrong's jury trial, he indicated to his counsel that he desired to plead guilty to the charge.
Under Mich. Comp. Laws § 750.318, a person charged with murder and desirous of pleading guilty, pleads guilty to the "open" charge and the court thereupon proceeds to a hearing to determine whether it should be in the first or second degree:
The jury before whom any person indicted for murder shall be tried shall, if they find such person guilty thereof, ascertain in their verdict, whether it be murder of the first or second degree; but, if such person shall be convicted by confession, the court shall proceed by examination of witnesses to determine the degree of the crime, and shall render judgment accordingly. All testimony taken at such examination shall be taken in open court and a typewritten transcript or copy thereof, certified by the court reporter taking the same, shall be placed in the file of the case in the office of the county clerk.
Although responsibility for determining the degree of crime is vested in the trial judge under § 750.318, it is apparent from § 750.316 that a felony murder is in fact murder in the first degree and calls for the maximum penalty. Michigan law makes no provision for the parole of persons convicted of first degree murder. Mich. Comp. Laws § 791.234; see, e. g., Richardson v. Hatch, 134 F.Supp. 110, 112 n.1 (W.D.Mich.1955).
After receiving Armstrong's plea of guilty, the state trial judge discharged the jury and proceeded to take further testimony concerning the degree of guilt. On the following day, he announced that the evidence established that Armstrong was guilty of first degree murder and sentenced him to life imprisonment.
Armstrong's conviction was affirmed by the Michigan Supreme Court, People v. Armstrong, 390 Mich. 693, 213 N.W.2d 190 (1973). To Armstrong's claim that he was not informed at the time of his plea that a conviction of first degree murder would make him ineligible for parole, the Michigan Supreme Court held that, both at the time of his plea in 1963 and at the time of its decision ten years later, the applicable Michigan law and court rules did not require the defendant to be advised that one convicted of first degree murder was not eligible for parole.
Essentially the same claim was made in a petition for writ of habeas corpus subsequently filed in the district court. The petition, more carefully couched in terms of due process violations of the Fourteenth Amendment, asserted that the plea of guilty was not freely, understandingly and voluntarily made because petitioner had not been informed that one of the consequences of his plea would be ineligibility for parole on a conviction of first degree murder. In a carefully considered opinion, District Judge John Feikens denied the state's motion to dismiss and ordered an evidentiary hearing "to determine whether petitioner was aware of his ineligibility for parole and whether under the totality of the circumstances he knowingly and intelligently waived his rights." Armstrong v. Egeler, 389 F.Supp. 483, 485 (E.D.Mich.1975).
At the hearing the district court heard the testimony of the trial judge who took the plea, of petitioner's defense counsel at the time, of the prosecutor at the trial, and of petitioner himself. He also had available the transcript of the plea-taking procedure itself. Not surprisingly in view of the passage of time, the defense counsel could not recall whether he had in fact informed Armstrong of his ineligibility for parole. Armstrong himself testified that he did not know the Michigan law at the time of his plea, but assumed that he was eligible for parole. He also testified that he would not have pleaded guilty if he had not made the assumption. The state trial judge himself, while remembering the petitioner, acknowledged that if the record was silent on the point, he probably did not expressly tell Armstrong that conviction of first degree murder rendered him ineligible for parole.
Notwithstanding the foregoing testimony in the district court, Judge Feikens, recognizing that the issue was whether petitioner's plea was intelligent and voluntary within the meaning of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), concluded that the colloquy at the time of the plea in 1963 established that Armstrong was sufficiently informed of the consequences of the plea and left no reasonable basis for any assumption on the part of Armstrong that he might ever be eligible for parole:
Q Is it correct that you desire to enter a plea of guilty to the charge contained in this Information at this time?
A Yes, sir, I do.
Q You understand that the charge contained in this Information is first degree murder, that is based upon the felony murder statute, that the penalty for this is solitary confinement at hard labor in State Prison for life?
A Yes, sir, Your Honor.
Q Do you understand this?
A Yes, sir.
Q Have you consulted with your counsel about this?
A Yes, sir, Your Honor.
Q You know that you have a right to continue with this trial, with a trial? You might possibly have a right to continue with this trial without the jury. Do you understand that?
A Yes, Your Honor.
Q Now knowing with what you are charged, knowing the maximum penalty that could be imposed, having consulted with your attorney, how do you wish to plead?
A Guilty, sir.
A Yes.
Q You understand that?
A Yes.
Q Are you pleading guilty freely and voluntarily?
A Yes, sir, I am.
Q Has anyone threatened you in any way to get you to plead guilty?
A No, sir.
Q Has anyone exerted any force or pressure in any form on you in order to get you to plead guilty?
A No, sir.
Q Has anyone threatened you to get you to plead guilty?
A No, sir.
Q Has anyone made any promises of favor or leniency in order to get you to plead guilty?
A No, sir.
Q Then I take it that you are pleading guilty because, as charged in the Information, you did, on June 23, 1962, in the city of Flint, kill one Ann Kelush?
A Yes, sir.
Q Very well, I will accept your plea of guilty to the charge . . ..
The facts of this case are a far cry from those of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). There the defendant, an indigent 27-year old Negro, appeared before the trial court with appointed counsel and pled guilty to five indictments charging him with common law robbery, an offense punishable in Alabama by death. The trial court asked no questions of the defendant concerning his plea. There was no indication that defendant in any way addressed the court. Other than a bare notation that Boykin had appeared before the court and pled guilty, the record was silent.
Here the record is not at all silent. Instead it affords an ample basis for the district judge's determination that Armstrong's plea of guilty was intelligent and voluntary. We view the following language from Boykin as significant:
Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Malloy v. Hogan, 378 U.S. 1, (84 S.Ct. 1489, 12 L.Ed.2d 653). Second, is the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145, (88 S.Ct. 1444, 20 L.Ed.2d 491). Third, is the right to confront one's accusers. Pointer v....
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