611 F.2d 61 (4th Cir. 1979), 78-6235, Strader v. Garrison

Docket Nº:78-6235.
Citation:611 F.2d 61
Party Name:Gene C. STRADER, Appellee, v. Sam GARRISON, Warden, Appellant.
Case Date:December 20, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 61

611 F.2d 61 (4th Cir. 1979)

Gene C. STRADER, Appellee,

v.

Sam GARRISON, Warden, Appellant.

No. 78-6235.

United States Court of Appeals, Fourth Circuit

December 20, 1979

Argued Jan. 12, 1979.

Page 62

Richard N. League, Asst. Atty. Gen., Raleigh, N. C. (Rufus L. Edmisten, Atty. Gen. of N. C., Raleigh, N. C., on brief), for appellant.

T. Paul Hendrick, Winston Salem, N. C. (P. B. Whiting, Winston Salem, N. C., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, MILLER, Judge, [*], and PHILLIPS, Circuit Judge.

HAYNSWORTH, Chief Judge:

The district court granted habeas corpus relief to this state prisoner who attacked his conviction, entered upon a plea of guilty, upon the ground of gross misadvice by his

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lawyer respecting the effect of the new sentence upon his parole eligibility date. North Carolina has appealed upon the ground that the parole eligibility date is but a collateral consequence of the plea of which Strader need not have been informed. It urges us to apply the rule in a case in which there was positive misinformation. We decline to do so.

In 1968 a forty-five to fifty-five year indeterminate sentence was imposed upon Strader on robbery and burglary convictions. He escaped from prison in April 1974 and, after his recapture, was put to trial in 1975 upon charges of armed robbery and conspiracy said to have been committed by him while on escape. After presentation of the state's case in the 1975 trial, the lawyers agreed upon a plea bargain. The tentative agreement was that Strader would plead guilty to both offenses, and would be sentenced to thirty years on the armed robbery conviction, to be served concurrently with the 1968 sentence, and to five to ten years on the conspiracy charge, to be served consecutively to the 1968 sentence.

In 1975 Strader was thirty-six years old.

Strader and the lawyer realized, of course, that imposition of the consecutive five to ten year sentence would postpone Strader's parole eligibility date by one-fourth of the five-year minimum. They knew, too, that imposition of the thirty-year sentence on the armed robbery conviction itself would not prolong the time during which Strader would languish in jail if he were not paroled, but Strader expressed concern that the thirty-year sentence might further postpone his parole eligibility date. He was assured by the lawyer that it would not. The advice was wrong, for under the published regulations of the North Carolina Department of Correction imposition of the thirty-year concurrent sentence clearly required a recomputation of the period to be served to establish parole eligibility, so that it would be fixed at one-fourth of the combined 1975 sentences.

The district court found that his parole eligibility date was of great importance to Strader and that he would not have entered his...

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