Carter v. McCarthy

• Citation: 806 F.2d 1373
• Decision Date: 23 December 1986
• Docket Number: No. 85-6299,85-6299
• Parties: Nardell U. CARTER, Plaintiff-Appellee, v. Daniel McCARTHY, Midge Carroll, John K. Van De Kamp, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1373

806 F.2d 1373

55 USLW 2411

Nardell U. CARTER, Plaintiff-Appellee, v. Daniel McCARTHY, Midge Carroll, John K. Van De Kamp Defendants-Appellants.

No. 85-6299.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 30, 1986.

Decided Dec. 23, 1986.

William K. Rasmussen, Arcadia, Cal., for plaintiff-appellee.

Ernest Martinez, Deputy Atty. Gen., Los Angeles, Cal., for defendants-appellants.

State prisoner sought habeas corpus. The United States District Court for the Central District of California, Edward Rafeedie, J., granted relief and state officials appealed. The Court of Appeals, Reinhardt, Circuit Judge, held that: (1) guilty plea is not voluntary and intelligent when trial court fails to inform defendant of mandatory parole term concomitant to sentence; (2) result was not altered by fact that Board of Prison Terms may waive mandatory parole term; (3) evidence sustained finding that prisoner was not aware of mandatory parole term when he pled guilty and would not have pled guilty had he been made aware of the mandatory term; and (4) proper remedy was release, not remand to allow prisoner to withdraw his plea where he had already served more time than he had bargained for.

Affirmed.

Alarcon, Circuit Judge, filed a concurring opinion.

Appeal from the United States District Court for the Central District of California.

Before ALARCON, BOOCHEVER and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

We resolve here a question previously unaddressed by this circuit, i.e., whether a guilty plea is voluntarily and intelligently made when the trial judge fails to inform the accused of a mandatory parole term concomitant to the sentence. We hold it is not.

Nardell Carter was arrested and charged in 1981 with forgery and possession of stolen checks. He pleaded guilty pursuant to a plea bargain under which he was to receive a two-year sentence. He was then sentenced to a two-year term in state prison. His conviction was subject to Cal.Penal Code Sec. 3000(a) (Deering 1980), which imposes mandatory parole for a period not to exceed three years. The court failed to inform him of this requirement either at the time it accepted his plea or at the time it imposed sentence.

After serving about sixteen months of his sentence, Carter was released on a three-year parole term. Less than seven months later, he was arrested on charges of burglary and possession of stolen credit cards. Although the charges were dismissed for lack of evidence, the California Board of Prison Terms revoked Carter's parole and returned him to state prison where he served an additional year. About three months after his release, while still subject to the three-year parole term, Carter was arrested again on similar charges. The Board of Prison Terms again revoked his parole and placed him in custody for another year. By this time more than three years had elapsed since Carter had commenced serving his bargained-for two-year sentence and he had already spent two years and four months in prison.

Carter filed a petition for writ of habeas corpus in state court, naming Daniel McCarthy, director of the California Department of Corrections, as defendant. Carter asserted that the court's failure to inform him of the mandatory parole term at the time of his plea violated his due process rights. After exhausting his state remedies, Carter filed a petition for a writ of habeas corpus in federal district court.

A federal magistrate conducted a fact-finding hearing and recommended granting habeas relief. The district court adopted the magistrate's findings and recommendation, and issued a writ ordering that Carter be released from custody on any charges related to his parole violations. At that time, Carter had been incarcerated for almost ten additional months and had only two months left to serve in connection with his second parole violation. McCarthy filed a timely appeal.

Generally, we review de novo the decision to grant or deny a petition for writ of habeas corpus. See Weygandt v. Ducharme, 774 F.2d 1491, 1492 (9th Cir.1985). However, to the extent that we are required to review a magistrate's findings of fact and a district court's adoption of such findings, we apply a clearly erroneous standard. Fed.R.Civ.P. 52(a); see United States v. Guido, 597 F.2d 194, 197-98 (9th Cir.1979).

Constitutional protections of due process mandate that an accused's guilty plea be voluntary and intelligent. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711-12, 23 L.Ed.2d 274 (1969). Because a guilty plea waives the rights against self-incrimination, to trial by jury, and to confront one's accusers, its acceptance requires the "utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence." Id. at 243-44, 89 S.Ct. at 1712.

Determining the voluntariness of a plea involves a review of all the relevant circumstances surrounding it. Brady v. United States, 397 U.S. 742, 749, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970). Among other circumstances, a plea of guilty can be voluntary only if it is "entered by one fully aware of the direct consequences" of his plea. Id. at 755, 90 S.Ct. at 1472 (emphasis supplied). Thus the proper initial inquiry here is whether a mandatory parole term is a direct consequence of a guilty plea, or merely a collateral one. If a mandatory parole term is a direct consequence, we must then determine whether Carter was fully aware that he was subject to that additional penalty.

McCarthy asserts that all parole consequences are collateral and thus not afforded due process protection, citing Hill v. Lockhart, --- U.S. ----, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); United States v. Garcia, 636 F.2d 122, 123 (5th Cir.1981) (per curiam); Hunter v. Fogg, 616 F.2d 55, 61 (2nd Cir.1980); Strader v. Garrison, 611 F.2d 61, 63 (4th Cir.1979). These cases are readily distinguished. Each deals with the failure to inform a defendant of when he will become eligible for release from incarceration under the sentence he received, not with the failure to inform him of the existence of a separate parole term to be served following service of that sentence. The date of eligibility for parole relates to the time at which the sentence actually imposed may in effect be reduced, at least insofar as the requirement for serving time in prison is concerned. Early release is purely discretionary and provides a benefit to the prisoner--a reduction in the period of confinement. On the other hand, a mandatory parole term involves the imposition of an additional adverse consequence upon the defendant--a substantial period of time during which his freedom is limited significantly commencing after the defendant has served his sentence of imprisonment.

A California appellate court has held that a mandatory parole term imposed pursuant to the same statute involved here, Cal.Penal Code Sec. 3000, is "an inexorable penal consequence" of a guilty plea. In re Carabes, 144 Cal.App.3d 927, 930-31, 193 Cal.Rptr. 65 (1983). In addition, the Seventh Circuit has held that the failure to inform a defendant of a mandatory parole term is a violation of due process, implicitly recognizing it to be a direct rather than a collateral consequence of a guilty plea. United States ex rel. Baker v. Finkbeiner, 551 F.2d 180 (7th Cir.1977); United States ex rel. Johnson v. DeRobertis, 718 F.2d 209, 210-11 (7th Cir.1983). ¹

We agree with the view expressed in In re Carabes and implicitly recognized by the Seventh Circuit. Where a criminal statute imposes a mandatory parole term to be served following completion of the period of confinement, the parole term necessarily is a direct consequence of the guilty plea. Here, Cal.Penal Code Sec. 3000(a) requires a period of parole to be served following completion of the period of incarceration; Carter's parole term is thus a direct consequence of his plea.

McCarthy argues that parole is not mandatory because the same section allows the Board of Prison Terms to waive parole. Id. Waiver, however, is a positive act solely within the discretion of the Board, in the absence of which the parole remains mandatory. See In re Carabes, 144 Cal.App.3d at 931, 193 Cal.Rptr. 65. More important, for purposes of determining whether a plea is voluntarily and intelligently made, the critical fact is not that the imposition of the parole term is mandatory but that the parole term is to be served in addition to the term of confinement under the sentence. In these circumstances, the judge handling the criminal proceedings must advise the defendant, inter alia, of the maximum period his liberty may be restrained both by way of imprisonment and parole.

Under Brady, we need still determine whether Carter was "fully aware" of the direct consequence of his plea. Brady v. United States, 397 U.S. at 755, 90 S.Ct. at 1472. Here, the magistrate specifically found that Carter did not know of the requirement of a mandatory parole term. The district judge agreed. We have reviewed the record and the findings carefully. While on the basis of the written record we might not have reached the same conclusion as the magistrate and the district court, we do not have the benefit of having observed the witnesses; nor can we substitute our judgment as to the facts for that of the district court. Given all of the circumstances present here, we cannot hold that the finding below is clearly erroneous. Inasmuch as Carter was not fully aware of the direct consequences of his guilty plea, the plea was not voluntary and intelligent; acceptance of the plea in these circumstances was a violation of Carter's constitutional right of due process. ²

United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979), is not to the contrary. In Timmreck, the Supreme Court held only that a claim of a violation of Federal Rule of Criminal...