Gregory v. Solem

Decision Date05 December 1985
Docket NumberNo. 84-2509,84-2509
Citation774 F.2d 309
PartiesGarland Ray GREGORY, Jr., Appellant, v. Herman SOLEM, Warden, South Dakota State Penitentiary; Mark V. Meierhenry, Attorney General, State of South Dakota, Appellees.
CourtU.S. Court of Appeals — Eighth Circuit

Robert M. Nash, Rapid City, S.D., for appellant.

Jeffrey P. Hallem, Asst. Atty. Gen., Pierre, S.D., for appellees.

Before LAY, Chief Judge, PHILLIPS, * Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

LAY, Chief Judge.

Petitioner Garland Ray Gregory, Jr. appeals from the denial by the district court 1 of his petition for a writ of habeas corpus brought under 28 U.S.C. Sec. 2254 (1982). He challenges his conviction for conspiracy to commit murder on the grounds that the factual basis for his guilty plea was inadequate, that his plea of guilty was involuntary and violated due process, and that he was not informed of the possible consequences of his plea. For the reasons set forth below, we affirm.

Background

Petitioner Gregory and his co-defendant John Archambault were charged on November 3, 1979 with murder by premeditated design, S.D. Codified Laws Ann. Sec. 22-16-4 (1979), and conspiracy to commit murder, S.D.Codified Laws Ann. Sec. 22-3-8 (1979), in connection with the November 1, 1979 shotgun slaying of Michael Young. Both Gregory and Archambault initially appeared without counsel before a law-trained magistrate who read the complaint to the defendants, advised them of the possible penalties and their constitutional and statutory rights, and set bail. On November 6, 1979, Gregory, accompanied by appointed counsel, again appeared before the magistrate and was again advised of the charges, possible penalties, and his rights.

Both defendants appeared with counsel for a joint preliminary hearing on November 13 and 14, 1979, at which numerous witnesses testified. On December 12, 1979, both defendants were charged in an information and appeared for arraignment. Counsel waived the reading of the information for both defendants. At that arraignment, Gregory signed a form acknowledging that he was aware of his constitutional rights to the presumption of innocence, to a unanimous jury verdict, to appointed counsel, to confront witnesses, to plead not guilty, and the right not to be compelled to be a witness against himself. The form stated that he understood that he was charged with "conspiracy to commit murder," with a maximum penalty of life imprisonment, and with "murder," carrying a maximum penalty of death or life imprisonment. Nowhere on this form were the elements of conspiracy enumerated or defined. Petitioner testified that he signed the form voluntarily, and both petitioner and his counsel stated that Gregory understood everything in the form. The state judge found that both defendants "do completely and fully understand the nature of the causes against them and also that they do fully and completely understand the possible penalties that could be imposed in the event of a conviction." Both defendants pled not guilty to both counts.

On January 9, 1980, Archambault changed his plea to guilty to the conspiracy charge and agreed to be a witness against Gregory and another alleged participant in the murder, Ron Brumbaugh. At his change of plea hearing, Archambault's attorney gave a detailed description of Archambault's and Gregory's participation in the murder which Archambault indicated was an accurate statement of the facts.

Thereafter, Gregory entered into a plea bargain with the state. On March 13, 1980, Gregory pled guilty to conspiracy to commit murder in exchange for the state's agreement to recommend a life sentence and move to dismiss the murder charge. He also agreed to tell the state's attorney the facts regarding the crime and to testify in any future action against Brumbaugh. In a colloquy with the state trial court judge at the change of plea hearing, Gregory answered affirmatively when asked whether he understood that by pleading guilty he waived his constitutional rights to trial by jury, to confront and cross-examine witnesses, and his right not to be compelled to be a witness against himself. He affirmed that he pled guilty voluntarily and had not been threatened, coerced, or influenced by promises. The court found that Gregory's plea was voluntarily made.

The judge also stressed at that hearing that he could not accept Gregory's plea until a factual basis for the plea was established, but indicated that he was totally conversant with all of the facts. When asked if Gregory had had an opportunity to review the relevant files, Gregory's counsel stated that the defendant had read all of the relevant transcripts and statements of witnesses. 2 The colloquy continued:

BY THE COURT: Okay. Is Mr. Gregory prepared at this time to state in his own words to the Court the factual basis for his plea to the offense of conspiracy to commit murder?

BY MR. WOLSKY [Attorney for Gregory]: If the Court feels that it is necessary for him to do so, other than what the Court has already had an opportunity to read, he is. But--

BY THE COURT: Well, I really honestly believe that there is a sufficient factual basis in the file to establish that Mr. Gregory did commit the offense to which he plead [sic] guilty. But let me ask you this, Mr. Gregory:

Your plea of guilty as I have advised you before is an admission that you did commit the offense to which you plead guilty. Do you understand that?

BY THE DEFENDANT: Yes, I do.

BY THE COURT: And did you, as alleged in the Information and as contained in all of the records and files, conspire with John Archambault and--well, principally John Archambault, I am not going to go into the matter of Brumbaugh at this time, but did you conspire with John Archambault to commit the murder upon Mr. Young?

BY THE DEFENDANT: Yes, I did.

BY THE COURT: Is there anything relating to the conspiracy charge that's been presented to the Court in the form of Preliminary Hearing testimony, testimony or statements of Counsel, or anything relating to the conspiracy charge that you dispute?

(Off the record discussion between Counsel.)

BY THE DEFENDANT: I dispute the fact that I did not shoot Michael Young [sic], and I did not make an open agreement to shoot Michael Young to John Archambault. But I did carry on a conversation with him about that. But I didn't agree to it. But I was involved in the conversation where it was mentioned.

BY THE COURT: Anything else you want to state to the Court as it pertains to that charge?

BY THE DEFENDANT: No, nothing else.

BY THE COURT: Okay, very well.

Okay, for the record, the Court finds that there is a factual basis for the plea, and I previously having determined that the plea was voluntarily made, it is accepted and Mr. Gregory is adjudged guilty of the offense of conspiracy to commit murder.

Upon the state's motion, the charge of murder was dismissed. Archambault received a sentence of 50 years; Gregory was sentenced to life imprisonment.

Gregory filed a pro se petition for habeas corpus in state court in January 1981. Counsel was appointed and a hearing held on the petition. The habeas court denied post-conviction relief, holding that the sentencing court had a sufficient factual basis to accept the plea. On appeal to the South Dakota Supreme Court, the habeas court's finding of a sufficient factual basis was upheld as not clearly erroneous. See Gregory v. State, 325 N.W.2d 297, 298 (S.D.1982). However, the South Dakota Supreme Court remanded the case for specific findings as to whether petitioner's plea was voluntary and intelligent and whether he had been advised of the nature of the charges and the consequences of his plea.

The state habeas court, without further hearings, again denied the petition. It found that petitioner entered his plea voluntarily and intelligently with knowledge of the charges against him and the consequences of his plea. On appeal after remand, Gregory v. State, 353 N.W.2d 777 (S.D.1984), the Supreme Court expressed dissatisfaction with the record established at the proceedings below, 3 but held that the habeas court's conclusion that Gregory understood the nature of the charges against him viewed in the totality of the circumstances was fairly supported by the record, found that petitioner was aware that he would get a life sentence for conspiracy under the plea agreement, and affirmed the petition's denial. Id. at 780-81.

Petitioner then brought a federal habeas corpus petition under 28 U.S.C. Sec. 2254. The federal district court, relying on the presumption that state court factual findings are correct, see 28 U.S.C. Sec. 2254(d), upheld the findings of the state courts and denied the petition. This appeal followed.

Discussion
I.

We turn first to petitioner's argument that there was no factual basis for his guilty plea to the conspiracy charge. At Gregory's change of plea hearing, the sentencing court did not set out in detail the factual basis for the charge of conspiracy. Instead, the judge indicated he was relying on witness testimony and evidence produced at the preliminary hearing and referred to his own familiarity with the facts due to his personal involvement in the case since its inception. He also stated that he had read the entire Archambault file, which included polygraph statements by Archambault and the evidence which established the factual basis for Archambault's guilty plea. He noted that Gregory had been present as a co-defendant for the proceedings at which this evidence was produced. Although petitioner argues that it was improper to refer to evidence not explicitly made part of the record to support the finding of a factual basis, we hold it was not impermissible for the trial court to do so. See Paulson v. Black, 728 F.2d 1164, 1167 (8th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 325, 83 L.Ed.2d 262 (1984) (factual basis...

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