Duffy v. Cuyler
| Decision Date | 12 June 1978 |
| Docket Number | No. 77-2099,A,F-2268,77-2099 |
| Citation | 581 F.2d 1059 |
| Parties | Charles E. DUFFY,ppellant, v. Julius T. CUYLER and District Attorney, Philadelphia County, Appellees. |
| Court | U.S. Court of Appeals — Third Circuit |
Edward Griffith, Duane, Morris & Heckscher, Philadelphia, Pa., for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Mark Sendrow, Michael R. Stiles, Steven H. Goldblatt, Gaele Barthold, Asst. Dist. Attys., Philadelphia, Pa., for appellees.
Before HUNTER, WEIS and GARTH, Circuit Judges.
This appeal from denial of habeas corpus relief questions whether in a nonjury criminal proceeding the defendant was afforded adequate constitutional protection in entering what was labeled a nolo contendere plea. Recent cases delineate what is encompassed in a true nolo plea, and suggest that the same standards apply in entering it as in the case of a guilty plea. But because of the unusual circumstances of the case Sub judice, we hold that the defendant's conviction was not vitiated by lack of advice on the record of the maximum sentence to which he was exposed. Accordingly, we affirm the district court's denial of relief.
The defendant was sentenced by the Court of Common Pleas of Philadelphia, Pennsylvania on charges of forcible rape, burglary and aggravated robbery growing out of an assault on June 26, 1971. He later petitioned for relief under the Pennsylvania Post Conviction Hearing Act on the ground that his nolo contendere plea had not been voluntarily and intelligently entered. The common pleas court granted a hearing and denied the petition. After exhausting state appellate remedies, he sought a writ of habeas corpus in the district court which, after a hearing, refused to grant relief.
Before trial in the state court, defendant was given a psychiatric evaluation and found to be competent to assist in his own defense, although suffering from a "major mental illness." The report stated that he was a danger to women, tending to aggressively vent his hostility on them, and was therefore a threat to the community.
A motion to suppress a confession was denied after a hearing and the case was listed for trial on July 18, 1972. At the time set, defense counsel told the trial judge that the defendant wished to plead guilty. Counsel then informed the defendant in open court of his rights to either a jury or nonjury trial, to cross-examine prosecution witnesses, present witnesses in his own defense, and advised him of the state's burden of proof. 1 Counsel also told the defendant that if a guilty plea were entered, the district attorney would "just summarize the evidence against you and then it would be up to Her Honor to sentence you; do you understand that?" When asked if he remembered the crime, the defendant said he did not. The trial judge stated that because the defendant did not recall the event, she would allow the guilty plea to be withdrawn so that the case could go to trial. Defense counsel said, "in that case we would prefer to enter a plea of nolo contendere and to let the witnesses speak from the stand and give their testimony, Your Honor." 2 After the defendant insisted that he wanted to plead guilty, counsel explained the nolo contendere plea:
"In effect what you are saying to the Court is that you do not know whether or not you have committed this crime, you are throwing yourself on the mercy of the Court, she will listen to the evidence; do you understand that?"
The defendant answered, "Yes, I understand."
When the charges were read and pleas entered, the trial judge said, "I would like to hear the Commonwealth witnesses very fully in this case, especially (the victim)."
The victim testified that the defendant gained entrance to her home through an unlocked door, raped her and took $20 from her. The house was lighted and she was able to make a positive identification of him. A neighbor testified that he had seen the defendant jump over the backyard fence that evening and notified police when the same man appeared in the neighborhood a week later. The police recounted the details of the defendant's arrest near the victim's home about a week after the crime and read a confession he had made a few hours after being apprehended.
Although offered the opportunity, defense counsel declined to question any of the witnesses. At the conclusion of the testimony, the prosecutor said, "That will be the Commonwealth's case."
The trial judge then asked if the defense would like to present evidence, and receiving a negative reply said:
"Mr. Duffy, you know you are ill?
The Defendant: Yes Ma'am.
The Court: You know you're dangerous to the community, you know that?
The Defendant: Yes.
The Court: One side of you is anyway. You apparently have no control over your hostile impulses against women, and you also have this very bad pattern of forgetting after a while what you have done, and that renews the impulse and you continue to do it so that no amount of punishment of a short term nature is going to really act as a deterrent over this problem of a very deep mental level."
The trial judge then accepted the plea of nolo contendere to burglary, robbery and rape, and entered on the court docket:
"7-18-72
Defendant on being arraigned enters a plea of Nolo Contendere. Adjudged Guilty. Sentence deferred, pending the addendum to Dr. Boxer's report from Holmesburg Prison.
By the Court Richette" On October 24, 1972, the defendant was brought to court for sentencing. The presentence medical report stated that the defendant should not be sent to a mental institution because he was well controlled by medication. Defense counsel suggested a minimum sentence of two or three years and the district attorney recommended 10 to 20 years. Defendant did not ask to have his plea withdrawn. The court then imposed a sentence of 71/2 to 15 years.
The defendant did not take a direct appeal, but six months after sentencing commenced Post Conviction Hearing Act proceedings, alleging that he had been under the influence of drugs at the time the plea was taken, that the plea was involuntary, that he did not understand it and did not knowingly and intelligently enter the plea. No contention was made that the plea was defective because of the lack of knowledge of the maximum sentence. After the common pleas court denied the defendant's petition, the Superior Court of Pennsylvania affirmed without opinion, Commonwealth v. Duffy, 235 Pa.Super. 709, 344 A.2d 908 (1975), and the Supreme Court of Pennsylvania declined allocatur.
Defendant's habeas corpus petition in the district court was initially referred to a United States Magistrate who recommended that the writ be granted since the record did not show the defendant had been advised of the maximum sentence at the time he entered his plea. The district judge did not accept the magistrate's report and after a hearing, found that the defendant had understood and appreciated that he faced a substantial period of imprisonment and had not been denied his constitutional rights. The court denied the writ.
In resolving the issue in this case, an examination of the nature of a nolo contendere plea and its application in this peculiar factual setting is necessary. Nolo contendere is recognized by both Pennsylvania and federal courts, although it is seldom employed in cases of the kind involved here. Its principal utility in modern times is to prevent the introduction of the plea in civil proceedings founded on the same facts. Thus, a plea of nolo contendere to criminal tax fraud or antitrust violations will not preclude the defendant from contesting civil actions which usually are associated with those offenses.
At early common law, the plea was used as an indication of a defendant's willingness to accept a fine in lieu of imprisonment and to rely on the mercy of the Crown. For a discussion of the plea's early history, See North Carolina v. Alford, 400 U.S. 25, 35-36, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and Hudson v. United States, 272 U.S. 451, 47 S.Ct. 127, 71 L.Ed. 347 (1926). Pennsylvania has held that the plea itself will support a sentence of imprisonment without any proof of guilt, Commonwealth v. Holstine, 132 Pa. 357, 19 A. 273 (1890). See Buck v. Commonwealth, 107 Pa. 486 (1884). In Commonwealth v. Rousch, 113 Pa.Super. 182, 172 A. 484 (1934), the superior court concluded that after acceptance of a nolo contendere plea, a judge had no authority to sit without a jury to determine guilt in contravention of state policy at that time against nonjury criminal trials. The court characterized nolo contendere as a "mild form of pleading guilty" and said that once the plea had been accepted, there would be a judgment of conviction. Pa.R.Crim.P. 319 permits entry of the plea, but only with consent of the court.
Nolo contendere, however, has not been consistently interpreted in all jurisdictions. In North Carolina v. Alford, supra, the Supreme Court noted that the plea had been defined in a variety of ways, described in some instances as
Id., 400 U.S. at 35 n.8, 91 S.Ct. at 166 (citations omitted).
Although Pennsylvania appellate decisions treat nolo contendere as the equivalent of a guilty plea and, upon acceptance, require no more to justify imposition of a sentence, that construction was not contemplated by the defendant and the trial judge in this case. As defense counsel said, he and his client wanted...
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