Bailey v. MacDougall

• Decision Date: 28 February 1968
• Docket Number: No. 11735.,11735.
• Citation: 392 F.2d 155
• Parties: Ray S. BAILEY, Appellant, v. Ellis C. MacDOUGALL, Director of the South Carolina Department of Corrections, et al., Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

392 F.2d 155 (1968)

Ray S. BAILEY, Appellant, v. Ellis C. MacDOUGALL, Director of the South Carolina Department of Corrections, et al., Appellees.

No. 11735.

United States Court of Appeals Fourth Circuit.

Argued December 4, 1967.

Decided February 28, 1968.

Betty M. Sloan, Columbia, S. C., for appellant.

Edward B. Latimer, Asst. Atty. Gen. of South Carolina (Daniel R. McLeod, Atty. Gen. of South Carolina, and B. O. Thomason, Jr., Sol., Thirteenth Judicial Circuit, on brief), for appellees.

Before BOREMAN, BRYAN and BUTZNER, Circuit Judges.

BUTZNER, Circuit Judge:

Ray S. Bailey was sentenced to life imprisonment in 1936 upon a plea of guilty to murder. Now Bailey challenges the validity of his plea, which was entered after the chief of police and the state's solicitor promised in writing they would recommend parole or pardon after Bailey had served a term not exceeding ten years. We hold that Bailey's arraignment was defective and the record fails to establish he understood the consequences of his plea. We remand the case for proceedings consistent with this opinion.

Bailey applied for a writ of habeas corpus in 1964 in the Court of Common Pleas for Richland County, South Carolina. After a full evidentiary hearing, the court found that Bailey's guilty plea was not voluntary, and ordered a new trial. Upon appeal the Supreme Court of South Carolina reversed and entered final judgment discharging the writ.¹ Bailey then applied to the United States District Court for a writ of habeas corpus, which was denied upon the basis of the state records without a plenary hearing.

A policeman, attempting to thwart a bank robbery, was killed in 1932 in Greenville, South Carolina. A few days later Bailey was charged with murder. Following an unsuccessful fight against extradition from North Carolina,² Bailey fled to Georgia. He was captured and returned to Greenville for trial. His brother, C. M. Bailey, and other members of his family retained a capable and experienced lawyer to defend him. He steadfastly maintained that he was not in Greenville the night of the murder, and upon his arraignment he pleaded not guilty.

The mainstay of the prosecution's case was a witness named Corea, who identified Bailey as the murderer of the policeman. Corea was sentenced to prison for robbery and refused to testify unless he was pardoned. The South Carolina solicitor who was prosecuting the case knew that another eyewitness was unable to identify Bailey positively. He also knew a number of witnesses would support Bailey's alibi. The solicitor suggested to Bailey's lawyer that Bailey plead guilty "with a recommendation to mercy."³ This plea would result in a mandatory life sentence. Bailey's lawyer did not know Corea refused to testify.⁴ He thought the evidence would be sufficient to take the case to the jury and he knew that public sentiment was aroused over the killing. He said that he could advise his client to plead guilty to manslaughter, but the solicitor declined this offer. The lawyers finally agreed that if Bailey would enter a plea of guilty to murder with recommendation to mercy, the solicitor and the chief of police would recommend a pardon or parole after Bailey had served not more than ten years.

The defense attorney advised Bailey that if he did not participate in the shooting he should not plead guilty. The attorney explained that the plea arrangement meant a life sentence would be imposed, and it did not mean the Governor would have to grant parole or pardon. He added that ordinarily the Governor would give great weight to the recommendation of the solicitor and the chief of police.⁵ Bailey agreed to plead guilty. His attorney, out of an abundance of caution, required the solicitor and chief of police to put their promise in writing. They signed this statement:

"This will confirm our conversation that in the event that Ray Bailey enters a plea of guilty with recommendation to mercy in the case now pending against him in the General Sessions Court for Greenville County that I will, knowing the facts of the case and the circumstances surrounding same, after the said Ray Bailey has served for a period not exceeding ten years, recommend to the Board of Pardons or Governor a pardon or parole."

Bailey withdrew his original plea and pleaded guilty with recommendation to mercy. He was sentenced to life imprisonment. No one mentioned the agreement. No inquiry was made to determine whether Bailey's plea was voluntary or whether he understood the charges against him and the consequences of his plea. In the state habeas hearing the solicitor testified that he believed the trial judge was not aware of the agreement.

Bailey's lawyer placed the statement in his safety deposit box. At the expiration of the ten year period, the solicitor, the chief of police, and Bailey's attorney unsuccessfully asked the Governor and the State Parole Board to pardon or parole Bailey.⁶

At the state habeas corpus hearing, Bailey testified that he was not in Greenville at the time the police officer was killed, and that at first he refused to plead guilty. He agreed to change his plea because he was certain any agreement the solicitor made would be carried out. He testified that there wasn't any doubt in his mind that he would be released in ten years.

Bailey was not alone in testifying he believed he would serve only ten years. The assistant solicitor, who investigated the case and was present at the arraignment, testified that "* * * when that plea was entered by that boy, at that time, I was convinced that, after service of these ten years, without doing something in the penitentiary to prevent it, he would have been released. I was convinced of it and I am sure that everybody in the courtroom that knew anything about it was."

Bailey raises several questions about plea bargaining. He does not urge the practice in itself is unconstitutional.⁷ He does claim the promise rendered his plea involuntary and that his arraignment was constitutionally defective.

The state habeas judge found Bailey believed he would serve not more than ten years and that the agreement leading to his change of plea "vitiated the voluntary nature of the guilty plea." The Supreme Court of South Carolina concluded this judgment was erroneous.⁸ The State Supreme Court emphasized that the promise was only to recommend parole or pardon and that it had been kept, that the written statement was unambiguous, and that Bailey's attorney had explained to him that the Governor might not follow the recommendation. It concluded that the evidence did not disclose that the plea was induced by coercion, false promises, or misrepresentation, and that Bailey's plea was voluntary.

In Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed. 2d 473 (1962), the Court held:

"A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void. A conviction based upon such a plea is open to collateral attack. See Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830; Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302; Shelton v. United States, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579, reversing 5 Cir., 246 F.2d 571."

The voluntariness of Bailey's plea does not depend upon whether he was the victim of a false promise. The question remains: Did the promise, even if fulfilled,⁹ induce the plea and deprive it of the character of a voluntary act? Whether Bailey's plea was voluntary raises issues of fact, upon which the state courts differed. The state appellate court's rejection of the state habeas court's findings ordinarily would require us to remand the case to the federal district court for an evidentiary hearing. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). However, we find a remand unnecessary because the case can be decided upon an alternative ground which, under the circumstances, does not require another evidentiary hearing.

Bailey contends he was denied due process of law because the court did not advise him of the consequences of his plea. In examining whether Bailey fully understood the consequences of his plea, we limit ourselves to the direct consequences — the length of the sentence to be served.¹⁰ Whether Bailey understood the consequences of his plea depends upon whether he understood the plea agreement. He claims the agreement meant he would be imprisoned not more than ten years. The state says the agreement provided only that he would be recommended for parole or pardon at the end of ten years.

In Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927), the Court said:

"A plea of guilty differs in purpose and effect from a mere admission or an extrajudicial confession; it is itself a conviction. Like a verdict of a jury, it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences."

No particular form or ritual is required, but it must appear that the defendant understood the consequences of his plea.¹¹ The evidence discloses, however, that no inquiry was made by anyone to determine Bailey's understanding of the consequences of his plea. The judge asked him no questions. Indeed, it appears from the record that the judge himself did not know the full consequences. Bailey's attorney did his best to explain it, but he testified at the habeas corpus hearing that he could not say that Bailey or his brother understood the proposition. Apparently the court and Bailey's attorney assumed that Bailey understood. Bailey challenges the validity of this assumption. He claims he thought the consequences would be not more than ten years' confinement in prison.

Ordinarily there is no great difficulty in...