Panuccio v. Kelly, 630

• Decision Date: 06 March 1991
• Docket Number: D,No. 630,630
• Parties: Frank PANUCCIO, Petitioner-Appellant, v. Walter KELLY, Superintendent of Attica Correctional Facility; Robert Abrams, Attorney General of the State of New York, Respondents-Appellees. ocket 90-2313.
• Court: U.S. Court of Appeals — Second Circuit

Page 106

927 F.2d 106

Frank PANUCCIO, Petitioner-Appellant, v. Walter KELLY, Superintendent of Attica Correctional Facility; Robert Abrams, Attorney General of the State of New York, Respondents-Appellees.

No. 630, Docket 90-2313.

United States Court of Appeals Second Circuit.

Argued Feb. 20, 1991.

Decided March 6, 1991.

Judd Burstein, New York City, for petitioner-appellant.

Emil Bricker, Asst. Dist. Atty. (John J. Santucci, Dist. Atty., for Queens County, of counsel), for respondents-appellees.

Before FEINBERG, TIMBERS and MINER, Circuit Judges.

FEINBERG, Circuit Judge:

Petitioner Frank Panuccio appeals from a judgment of the United States District Court for the Eastern District of New York, Jack B. Weinstein, J., dismissing his petition for a writ of habeas corpus. Having pled guilty to the New York State crime of Manslaughter in the First Degree, Panuccio is now serving a sentence of eight and one-third to 25 years imprisonment. Panuccio claimed in the district court that the trial court should not have accepted his guilty plea without further inquiry into whether he was voluntarily and intelligently waiving his right to trial, and that he was deprived of his Sixth Amendment right to effective assistance of counsel. The district court found that Panuccio's guilty plea was knowing and voluntary and that his Sixth Amendment right to counsel was not violated. For the reasons given below, we affirm.

Background

In March 1984, Panuccio and a friend, Brian Dennis, attended a "keg" party at a neighborhood park. Beer was available and Panuccio was drinking throughout the course of the evening, although the actual amount that he consumed has not been established. A dispute arose between the two friends apparently over Dennis's unauthorized use of Panuccio's automobile during the party. According to witnesses, when Dennis returned with the car, Panuccio pulled out a knife, threatened to kill Dennis and then got into a fight with him. The two, however, were pulled apart, and the party ended sometime thereafter.

Later that evening, Panuccio drove a car with a friend to Dennis's house. Dennis's mother answered the doorbell, and according to her statement to the police, Panuccio told her that there had been a keg party, and that Brian had borrowed his keys and he wanted them back. Mrs. Dennis told Panuccio that Brian was not home, but then she saw him walking up the street and pointed him out to Panuccio. Panuccio then ran out onto the street, whereupon he fatally stabbed Brian. Shortly thereafter, Panuccio drove his friend home and then proceeded to drive some three miles further.

Panuccio first met with his attorney, Marvyn Kornberg, on the morning after the homicide. Panuccio testified that after he described the incident, Kornberg said that he was of the opinion that the facts, at most, established the crime of Manslaughter because Panuccio and the deceased had been friends and Panuccio had been drunk. Kornberg also said that he would pursue a justification defense. However, in the following weeks Kornberg ascertained further details about the incident and concluded that the facts would not support that defense. During that time plea negotiations began.

The indictment charged Panuccio with the crimes of Murder in the Second Degree and Criminal Possession of a Weapon in the Fourth Degree. At the habeas hearing in the federal district court, Kornberg testified that he thought that Panuccio had a minimal chance of prevailing at trial in light of the testimony likely to come from the victim's mother. In Kornberg's view, the only viable mitigation available would be an attempt to show that Panuccio intended only to do serious physical injury and did not intend to kill, thereby reducing the crime to Manslaughter in the First Degree, the crime to which Panuccio eventually pled guilty. Since Panuccio faced a maximum sentence of 25 years to life on the murder charge if he proceeded to trial and was convicted, Kornberg advised Panuccio to accept the People's offer of a plea to Manslaughter in the First Degree and a recommendation to the sentencing judge of eight and one-third to 25 years imprisonment.

Kornberg had spoken with Panuccio and his father on at least 10 occasions prior to Panuccio's decision to accept the negotiated plea, but Panuccio claimed that the intoxication defense had never been discussed with him after his initial meeting with Kornberg. However, Kornberg had discussed the defense with Panuccio's father, but explained that he did not think that the risk of proceeding to trial on that basis was worthwhile.

Panuccio was convicted in May 1985, after pleading guilty. In December 1987 he moved in state court to vacate his judgment of conviction in part on the grounds that the trial court failed to determine that there was an adequate factual basis for his guilty plea, and that he was deprived of his Sixth Amendment right to effective assistance of counsel because counsel failed to inform him of a possible intoxication defense. The motion to vacate was denied, and Panuccio proceeded to exhaust his state remedies before petitioning the district court.

After holding an evidentiary hearing, the district court dismissed the petition on the grounds that Panuccio's constitutional rights were not violated because his plea was knowing and voluntary and his counsel served adequately in negotiating the plea even though he failed to inform Panuccio of the possible intoxication defense. This appeal followed.

Discussion

A. Effectiveness of Counsel

Where, as here, a defendant was represented by counsel during the plea process and entered his guilty plea upon the advice of counsel, the defendant's challenge to the plea based on ineffective assistance of counsel is governed by a two-part test. First, the defendant must show that counsel's representation fell below an objective standard of reasonableness, which is determined by the range of competence demanded of attorneys in criminal cases. Hill v. Lockhart, 474 U.S. 52, 56-59, 106 S.Ct. 366, 369-71, 88 L.Ed.2d 203 (1985). Second, the defendant must show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. at 59, 106 S.Ct. at 370.

The district court found that Panuccio's counsel was aware that there had been drinking on the night of the crime but assumed that the drinking did not suffice to negate an element of the crime charged. The court further found that if the issue of intoxication had been placed before a jury, it would have been probable beyond a reasonable doubt that the jury would not have found the intoxication sufficient to negate any element of the crime charged. In support of this conclusion, the court cited the delay in drinking at the party that probably occurred while the victim had driven off in Panuccio's car (in order to look for more cups); the low amount of alcohol in the victim's body; the lapse in time between Panuccio's first attack on the victim and the eventual killing; the fact that Panuccio had threatened and attacked the victim prior to the stabbing; Panuccio's ability to drive a car both before and after the crime and his "relevant and clear" inquiry at the Dennis house that preceded his deliberate attack on the victim. In addition, the court took account of the possible reduction in prison time had Panuccio's intoxication defense been established. The parties agreed that intoxication would not have been a defense to Manslaughter in the Second Degree, N.Y. Penal Law Sec. 125.15, and that the maximum sentence for that crime is five to 15 years, id. Sec. 70.00. The judge apparently assumed--we think correctly--that the maximum would apply, "[p]articularly with the mother of the deceased in this kind of a dreadful crime being available as a witness, and with the pressure that might have resulted on the court for the heaviest sentence had she testified." Under these circumstances, the court ruled, counsel had adequately served in negotiating the plea, since the intoxication defense had little chance of success and, in any event, the saving in prison time (from a minimum of eight and one-third years to a minimum of five) that Panuccio could achieve was not substantial compared with the risk of a sentence of 25 years to life.

Panuccio argues that the district court's findings are erroneous because the district court improperly limited its inquiry to the advice that counsel would have given if he had discussed the possibility of the intoxication defense with Panuccio, whereas the appropriate inquiry is whether counsel had a duty to inform Panuccio of the defense. Although we agree that there is more to the appropriate inquiry than merely resolving whether counsel would have adhered to his advice even if he had discussed the intoxication defense with Panuccio, cf. Miller v. Angliker, 848 F.2d 1312, 1322 (2d Cir.), cert. denied, 488 U.S. 890, 109 S.Ct. 224, 102 L.Ed.2d 214 (1988), it is clear to us that the district court did not so limit its inquiry.

The district court's conclusion that Panuccio's counsel served adequately in negotiating the plea was not based upon an express finding that counsel did not have a duty to disclose the defense or that Panuccio would have pled guilty even if he had known of the defense. Nonetheless, it is clear to us that the court properly understood the issues, since it reached its conclusion on the basis of factors relevant to the appropriate inquiry. The likelihood that an affirmative defense will be successful at trial and an assessment of the probable increase or reduction in sentence relative to the plea if the defendant proceeds to trial are clearly relevant to the determination of whether an attorney acted competently in recommending a plea. The standard of competency in turn determines whether the attorney had a duty to disclose the availability of the affirmative defense. In addition, our...