572 F.2d 1 (1st Cir. 1978), 77-1312, Allard v. Helgemoe

Docket Nº:77-1312.
Citation:572 F.2d 1
Party Name:Donald A. ALLARD, Petitioner, Appellant, v. Raymond A. HELGEMOE et al., Respondents, Appellees.
Case Date:March 03, 1978
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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572 F.2d 1 (1st Cir. 1978)

Donald A. ALLARD, Petitioner, Appellant,


Raymond A. HELGEMOE et al., Respondents, Appellees.

No. 77-1312.

United States Court of Appeals, First Circuit

March 3, 1978

Argued Dec. 7, 1977.

Eleanor Krasnow, Manchester, N. H., by appointment of the court, for petitioner, appellant.

Richard B. Michaud, Asst. Atty. Gen., Concord, N. H., with whom David H. Souter, Atty. Gen., and Richard B. McNamara, Asst. Atty. Gen., Concord, N. H., were on brief for respondents, appellees.

Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

Petitioner was indicted and charged with the crime of burglary and pleaded guilty to that offense in February, 1974. He was advised by experienced counsel at the time he entered his plea. At the proceeding petitioner signed an "Acknowledgement of Rights", but the trial judge did not explain the elements of the offense of burglary to him nor did his attorney indicate that he had thoroughly discussed the charge with the defendant. After the plea was accepted but before the imposition of sentence, petitioner's attorney recited to the court petitioner's view of the facts relating to his participation in the crime. Those facts were not consistent with the element of the offense requiring an intent to steal during the breaking and entering; instead they suggested that petitioner had developed the intent to steal ("did succumb to a temptation") after entering the building where the crime occurred. If these facts were correct, petitioner was actually guilty of theft, an offense with a far lighter penalty than burglary. Petitioner, who had a long record of similar offenses, was sentenced to prison for three to five years for the crime of burglary.

Petitioner moved to have his guilty plea withdrawn in 1975. His motions were denied and the New Hampshire Supreme Court affirmed that denial. Petitioner then filed for a writ of habeas corpus. The district court held an evidentiary hearing to determine whether or not petitioner's plea was informed and voluntary. The court

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concluded that although petitioner's attorney had done everything he could to explain the elements of the offense to him, the petitioner did not fully understand what he was told. 1 The court also found that while petitioner was generally unable to evaluate his likelihood of success at trial, he was capable of understanding that his attorney was competent to make such judgments, and he understood his attorney's advice that he would probably receive a more severe sentence if he went to trial and was convicted than if he pled guilty. The district court denied the petition for habeas corpus relief. Petitioner appealed.

The facts of this case and the issue presented require us to consider several lines of authority which here intersect. 2 The district court wrestled with two relevant Supreme Court cases, Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976) and North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The Court held that Alford's bar to attacking a guilty plea, made with the expectation of a shorter sentence than if trial and conviction had taken place, applied not only to a case such as Alford where a defendant was aware of the critical elements of the crime, but also to a case where, unlike Henderson, a defendant's attorney had explained the elements of the crime although the defendant may not have understood them. We begin with Alford.

Alford holds that a court may constitutionally accept a plea of guilty from a defendant who continues to protest his innocence because an "express admission of guilt . . . is not a constitutional requisite to the imposition of criminal penalty." Id. at 37, 91 S.Ct. at 167. The defendant, Alford, pled guilty to second degree murder while insisting on facts totally inconsistent not only with the specifics of the crime charged, but of any wrong doing. 3 While Alford's attorney only recommended to his client that he plead guilty and left the ultimate decision to the defendant, Alford's decision was based on total reliance on his attorney's evaluation of his situation. 4

The Court emphasized in reaching its conclusion approving the acceptance of Alford's plea that the judge had been presented with strong evidence of Alford's actual guilt. This was important for two reasons. It weakened the reliability of Alford's claims that he was actually innocent and it provided a factual basis for the defendant's decision to plead guilty despite his belief in his own innocence. The Court recognized that it may often be in the interest of a defendant to plead guilty when it appears that he would be convicted after trial in any case.

The present case is distinguishable from Alford, but a comparison between the two is striking in certain respects. In both Alford and the present case the defendants, as most laymen must, relied heavily on the advice of their counsel that it was in their best interests to plead guilty. In both cases there was a reasonable factual basis for

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believing the advice to be sound. In both cases defendants presented facts inconsistent with their plea, but there was some reasonable basis for doubting the reliability of their statements. 5 The singular difference is that Alford understood the discrepancy between his version of the facts and the substantive content of the charges against him and defendant here did not. If defendant had been able to understand fully this discrepancy in his own case, he might have continued to plead guilty while asserting his own version of the facts. This without more would not have invalidated his plea under Alford. Alford stands squarely for the proposition that the subjective belief in one's own innocence does not render a guilty plea constitutionally suspect as long as there are grounds for doubting the reliability of that belief and for calculating that one's defense at trial would most likely be unsuccessful. Here, as we have previously noted, all these conditions have been met. 6 However, an understanding or the discrepancy between his own view of the facts and the elements of the offense might have so altered defendant's calculations as to the success of his defense that he would decide to change his plea and go to trial. While the decision might have been foolish, it was within his right. The defendant's lack of understanding reduced his capability to make the decision as to whether or not to go to trial.

The question before us then is whether such an incapacity vitiates the constitutionality of petitioner's plea. We do not think that it does, but to reach that conclusion we must evaluate the circumstances surrounding the plea from all the perspectives relevant to this case: the degree of confusion or incapacity demonstrated by the defendant, 7 the information available to the defendant to help him make his decision, and the importance to the defendant's calculations of the legal principles which he did not comprehend. An egregious failure or distortion of any of these perspective would void a guilty plea; in addition, the cumulative effect of marginal failures of more than one could lead us to find a plea unconstitutional. We shall examine each in turn.

The majority of the circuits examining the question of what degree of mental competence is necessary to plead guilty have concluded that the standard of incompetence to plead is the same as the standard of incompetence to stand trial. See United States ex rel. McGough v. Hewitt, 528 F.2d 339 (3d Cir. 1975); Malinauskas v. United States, 505 F.2d 649 (5th Cir. 1975); United States v. Harlan, 480 F.2d 515 (6th Cir. 1973); Wolf v. United States, 430 F.2d 443 (10th Cir. 1970); United States v. Valentino,

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283 F.2d 634 (2d Cir. 1960). Contra Sieling v. Eyman, 478 F.2d 211 (9th Cir. 1973). That standard was first announced in Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960) and states that the "test must be whether (the defendant) has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and whether he has a rational as well as a factual understanding of the proceedings against him." We do not believe that a defendant's inability to understand elements of the crime of burglary such as intent requires us to find him incompetent under the Dusky standard. 8

However, the focus of petitioner's appeal is not that he should be found incompetent under Dusky. He argues that there is a middle category of defendants who do not have the mental capacity to plead guilty but who may be competent to stand trial under Dusky, and that he falls into that category. Not only is this view generally without support in the case law; it raises disturbing policy issues as well.

Petitioner contends that his middle category of competence would not create administrative...

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