Bonvillain v. Blackburn

• Decision Date: 22 January 1986
• Docket Number: No. 85-3352,85-3352
• Parties: Jesse BONVILLAIN, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary and William J. Guste, Jr., Attorney General, State of Louisiana, Respondents-Appellees. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1248

780 F.2d 1248

Jesse BONVILLAIN, Petitioner-Appellant, v. Frank BLACKBURN, Warden, Louisiana State Penitentiary and William J. Guste, Jr., Attorney General, State of

Louisiana, Respondents-Appellees.

No. 85-3352

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Jan. 22, 1986.

John M.T. Mulvehill, Virginia Laughlin Schlueter, Asst. Fed. Public Defenders, New Orleans, La., for petitioner-appellant.

John M. Mamoulides, Dist. Atty., Research & Appeals, William C. Credo, III, Dorothy A. Pendergast, Elizabeth Gaudin, Asst. Dist. Attys., Gretna, La., for respondents-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before POLITZ, GARWOOD, and JOLLY, Circuit Judges.

GARWOOD, Circuit Judge:

Jesse Bonvillain appeals the denial of his habeas corpus petition under 28 U.S.C. Sec. 2254, challenging his Louisiana conviction and sentence for forcible rape. Petitioner, who had been charged with the more serious offense of aggravated rape, pleaded guilty to forcible rape pursuant to a plea bargain, and was sentenced to seventeen years' confinement. At that time he was on parole after serving five years of an earlier Louisiana rape conviction for which he had received a twenty-year sentence that had been commuted to fifteen years.

Petitioner's principal claim is that the plea bargain was for a "total" sentence of twenty years, including the remaining portion of his sentence on the earlier rape, which was to be three years, and that instead the remaining sentence on the earlier offense was indisputably ten years which, when added to the seventeen years on the instant offense, results in a "total" sentence of twenty-seven years, seven more than he bargained for. He also claimed ineffective assistance on the part of his retained counsel in incorrectly advising him that his remaining sentence on the earlier offense would only be three years. The United States Magistrate conducted an extensive evidentiary hearing at which petitioner was represented by capable counsel. The magistrate recommended denial of the petition, finding, inter alia, that petitioner's guilty plea was knowing and voluntary, that he did not establish the plea agreement he claimed, and that he was not prejudiced by his counsel's performance. After a de novo review of the record, the district judge adopted the magistrate's findings and recommendations and dismissed the writ. We affirm.

Facts

Jesse Bonvillain pleaded guilty to simple rape in the Terrebonne Parish Judicial District Court on January 8, 1977. He was sentenced to twenty years' imprisonment, which was later commuted to fifteen years. Petitioner served five years of this sentence and was then paroled. While on parole, petitioner was indicted for aggravated rape in Jefferson Parish on January 9, 1981. On November 18, 1981, as the result of a plea bargain, petitioner pleaded guilty to a reduced charge of forcible rape in the Jefferson Parish Judicial District Court.

Before accepting the guilty plea, the judge advised petitioner that he had a right to trial by jury, a right to appeal the jury verdict, a right to cross-examine and confront the State's witnesses, and a right not to testify and that by pleading guilty, the petitioner was waiving these rights. Petitioner indicated that he understood he was waiving those rights. The judge also explained to the petitioner that by his plea of guilty "you admit that ... you committed forcible rape in accordance with Article 42.1 of the Criminal Code" and that he would be sentenced to seventeen years. After Bonvillain acknowledged that he understood this, the following colloquy took place:

"THE COURT: You further understand that as a result of your plea in this case, any further actions in matter 61534 from the Parish of Terrebonne on January 8, 1976 is not to be considered? Do you understand that?

"THE DEFENDANT: No.

"THE COURT: The parole that you were on as a result of that particular case at the time of the commission of this crime is not being considered in connection with this matter. That's a separate matter altogether to be disposed of by the parole board and the authorities. Do you understand that?

"THE DEFENDANT: (Defendant nods his head)

"THE COURT: I'm satisfied that he understands his rights and that he has intelligently waived same."

In accordance with the plea bargain, the judge then sentenced the petitioner to seventeen years at hard labor, the first five without benefit of parole, probation, or suspension of sentence.

Under a Louisiana statute in effect since 1968, if a person on parole is convicted of a felony, then the parole is automatically revoked and the person is under sentence for the portion of his original sentence which was unserved as of the date of his release on parole. La.Rev.Stat.Ann. Secs. 15:574.9 and 15:574.10 (West 1981). The sentences are to run consecutively unless the sentencing judge expressly directs otherwise. La.Rev.Stat.Ann. Sec. 15:574.10. The petitioner's parole was revoked, so that his remaining sentence on the original offense was ten years. Petitioner claimed he had understood from his attorney that he had bargained for a twenty-year total sentence, seventeen for the forcible rape conviction and three for the remaining time on the prior rape conviction. Petitioner asserted that he did not understand that he would effectively have a total of twenty-seven years until he was being processed in the state prison system.

Discussion

Lack of Knowledge of all the Elements of the Crime

Petitioner alleged in his petition, though it is doubtful he has raised this issue on appeal, that his plea was not voluntary because he was not aware of all of the elements of the crime. The United States Supreme Court has stated that a guilty plea cannot be voluntary unless the defendant has "real notice of the true nature of the charge against him," Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 2257, 49 L.Ed.2d 108 (1976), quoting Smith v. O'Grady, 312 U.S. 329, 61 S.Ct. 572, 574, 85 L.Ed. 859 (1941). The Supreme Court indicated in Henderson that if the record showed that the defense counsel had explained the nature of the offense to the accused, then failure of the trial judge to describe the elements of the offense would not make the plea involuntary. Henderson, supra, 96 S.Ct. at 2258. The Court stated that "This case [Henderson ] is unique because the trial judge found as a fact that the element of intent was not explained to respondent." ¹ Id. at 2258-59. Although the Court did not reach the point, Justice Stevens noted that the Court assumed that notice of the true nature of an offense did not always require a description of every element of the offense. Id. at 2258 n. 18. In Hobbs v. Blackburn, 752 F.2d 1079, 1081 (5th Cir.1985), we stated that a guilty plea would be upheld as voluntary even if the trial judge failed to explain the offense if the record showed that the defendant understood the charge and its consequences. While the guilty plea hearing transcript shows that petitioner was not expressly informed of the elements of forcible rape in open court at the guilty plea hearing, petitioner's attorney stated on the guilty plea form that he had "informed the defendant of his or her rights, particularly the nature of the crime to which he or she is pleading guilty." The guilty plea form is prima facie evidence that petitioner was informed of the elements of forcible rape. There is no evidence to the contrary.

The petitioner had an opportunity at his evidentiary hearing to offer evidence that he was not informed of all the elements of the crime; however, petitioner failed to offer any proof. Nor did petitioner claim he would have disputed any element. In a habeas proceeding, the petitioner has the burden of proving that he is entitled to relief. Walker v. Maggio, 738 F.2d 714, 716-17 (5th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 793, 83 L.Ed.2d 786 (1985); Hayes v. Maggio, 699 F.2d 198, 200 (5th Cir.1983). In this case, petitioner has not met his burden of proof.

Broken Plea Agreement

Petitioner's principal claim is that the agreement between the State and the petitioner was that he would be sentenced, in total, to twenty years and instead he received sentences totalling twenty-seven years, seventeen on the forcible rape conviction and ten as the balance of the sentence on the simple rape for which he had been paroled. An unkept plea bargain is a basis for the grant of habeas relief if the petitioner can prove the existence of the allegedly broken plea. Hayes v. Maggio, 699 F.2d 198, 203 (5th Cir.1983); Jones v. Estelle, 584 F.2d 687, 689 (5th Cir.1978). To prove the existence of the plea bargain, the petitioner must prove: "1) exactly what the terms of the alleged promises were; 2) exactly when, where, and by whom such a promise was made; and 3) the precise identity of an eyewitness to the promise." Hayes, supra, at 203, citing Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 1630, 52 L.Ed.2d 136 (1977).

The magistrate found that Bonvillain failed to establish the terms of the alleged promise, when and by whom the promise was made, and the identity of an eyewitness to the promise. The district court adopted the findings of the magistrate. These findings of fact are not to be set aside unless they are clearly erroneous. Hayes, supra, at 200. In the case at bar, the record adequately supports the magistrate's findings.

Bonvillain argues that the testimony of his counsel who negotiated the plea bargain, Ralph Barnett, and his mother, Velma Bonvillain, established an agreed total sentence of twenty years. However, neither Barnett nor Mrs. Bonvillain testified about the specific terms of the plea agreement. Barnett merely believed the sentence would add up to a total of twenty years, with three years of that time being imposed for Bonvillain's parole revocation. Barnett testified that the sentencing judge and the district...