Cronin, In re, 13-73

• Decision Date: 01 April 1975
• Docket Number: No. 13-73,13-73
• Court: Vermont Supreme Court
• Parties: In re Richard J. CRONIN.

Page 164

336 A.2d 164

133 Vt. 234

In re Richard J. CRONIN.

No. 13-73.

Supreme Court of Vermont.

April 1, 1975.

Gregory A. McKenzie, Deputy Defender Gen., Robert E. West, Defender Gen., Montpelier, for plaintiff.

John S. Liccardi, State's Atty., Rutland, for defendant.

Before BARNEY, C. J., and SMITH, KEYSER, DALEY and LARROW, JJ.

LARROW, Justice.

This is an appeal from denial of post conviction relief sought under 13 V.S.A. § 7131 et seq. The substance of appellant's claim below was that a plea of nolo contendere entered by him in the District Court of Vermont, Unit No. 1, Rutland Circuit, was induced by promises and misrepresentations of his assigned attorney, and done without the benefit of effective counsel. The plea was to a charge of armed assault, reduced from a charge of armed assault with intent to kill or maim. A 3-5 year sentence was imposed. Appellant here claims, in brief, that the trial court did not apply correct legal standards in determining whether his plea was unfairly induced, and erred in finding he had been afforded the effective assistance of counsel.

A long summary of facts is not required for disposition. Appellant, who was 17 at the time of the plea in question, had his father as guardian ad litem, his mother also in attendance and participating, and assigned counsel of his selection. His claim was that he entered his plea in reliance upon statements of his counsel that he would be eligible for parole in six months, or that, because of counsel's political influence with the then governor, a pardon might be secured. He also claimed that counsel's impatience with his case and his disregard for his rights, coupled with these statements, required a finding of incompetency by the reviewing court, under any applicable standard.

In summary, the reviewing court found the attorney to be in good standing. It found that there had been several discussions about probation, parole and pardon, but that no promise had been made by the attorney as to any of these matters. It found, by way of conclusion, that no promises or misrepresentations had been made to the appellant, and that he was represented by effective and competent counsel. Post conviction relief was denied.

As appellant asserts, substantial questions of law are involved in this appeal. He briefs these questions ably and extensively; the State somewhat perfunctorily relies upon the presumption of counsel's competency outlined in general terms in In re Murphy, 125 Vt. 272, 214 A.2d 317 (1965), and in State v. Rushford, 127 Vt. 105, 241 A.2d 306 (1968). It argues the passage of time, prejudice to the state, a reliance by the state upon the appellant's oral and written waiver of further proceedings, and the failure of the appellant to establish that representations were in fact made to him. These claims have some weight, but they are not in our judgment controlling, nor are they dispositive of the case here presented. In our view, the findings below are not either particular enough or definitive enough to permit final disposition here. A remand is required for new hearing and findings adequate to dispose of the legal issues involved.

Consistent with the testimony of counsel, the court found that there were no promises or misrepresentations as to prospects of pardon. This finding must be sustained, as supported by the evidence. Lane Construction Co. v. State, 128 Vt. 421, 265 A.2d 441 (1970). But the findings are silent as to admitted conversations on the subject, the content of those conversations, admitted discussions of political activity that would not otherwise be relevant, and what, if any, reliance might reasonably have been placed by appellant in the prospects of pardon. Similarly, too, the findings are silent about the activities of counsel in the trial court, including attempts to waive the procedures usually attendant upon the taking of an inculpatory plea, even though these matters were of record and undisputed. They overlook completely the attorney's claim of lost records, and his admission of failure to answer repeated letters from appellant while in prison. All of these matters, in our view, have material bearing on the points in issue, and their total absence from the factual findings requires a remand.

A possible course of action open to us would be to defer resolution of those issues pending further factual hearing. But implicit in the remand for such hearing is a holding that these matters, not now found, are material for disposition. If they were not, remand would not be required.

As noted, the court below found that no promises or misrepresentations were made. But we concur with appellant that this is not the crucial point. An explicit promise is not required in order for a plea to be considered involuntary. A misunderstanding, if reasonable, that statements are a promise or representation may be sufficient to vacate a conviction based on plea. Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); In re McGrail, 130 Vt. 492, 296 A.2d 213 (1972). If a defendant changes his plea in full reliance upon an understanding, entertained rightly or wrongly but reasonably and in good faith, the change of plea is involuntary if the understanding proves to have been wrong. In re Newton, 125 Vt. 453, 458, 218 A.2d 394 (1966). The finding that no promises or misrepresentations were actually made should not be conclusive.

If the defendant had that bona fide belief (of receiving probation or suspended sentence) on his mind and if that belief was a controlling factor in causing him to enter a plea of guilty, the court has to take that belief into consideration, irrespective of the kind of information upon which it was founded.

United States v. Lias, 173 F.2d 685, 687 (4th Cir. 1949) accord, United States v. Lester, 247 F.2d 496 (2d Cir. 1957). A strong factor for consideration is the age of the appellant at the time he changed his plea. Admittedly, he was then 17, a fact neither found nor considered by the trial court. And this fact becomes particularly relevant in considering the effect of the form statement of voluntariness executed by him, and his responses to the inquires of the court in this connection at time of sentence. Such inquiries did not include the determination of the factual basis for the plea now required by V.R.Cr.P. 11(f), but that rule was not then in effect. Appellant testified that he thought 'he was all set and saying anything would ruin whatever had (been) done.' If believed, that statement could destroy the evidentiary effect of his signed and oral statements, in accordance with the holding in Christy v. United States, 437 F.2d 54 (9th Cir. 1971):

The fact that on entering his plea appellant had assured the court that no one had promised him anything is not conclusive. As this court noted in United States v. Tweedy, 419 F.2d 192, 193 (9th Cir. 1969), he might have thought 'that it was all part of the game and that honest answers would destroy the deal.' Christy, supra, 437 F.2d at 55.

The application of this rule could well be strengthened by the efforts of his counsel, shown by the transcript though not found by the trial court, to have the plea accepted without the 'formalities' of inquiry by the sentencing court, on his representation that 'this young man understands his rights to a jury trial and other rights.' The sentencing court, to its credit, nonetheless made full inquiry of the respondent, but confusion, misunderstanding, and consequent involuntariness could well have been found by the trial court, had it not elected to confine itself to the issue of whether promises or misrepresentations were in fact made. Remand is required for the finding of all relevant facts and the granting or denial of relief on the basis of such findings.

The importance of full inquiry into the voluntariness of appellant's nolo plea is emphasized by DR-9-101(C) of the A.B.A. Code of Professional Responsibility:

(C) A lawyer shall not state or imply that he is able to influence improperly or upon irrelevant grounds any tribunal, legislative body, or public official.

Appellant further contends that in the District Court he was deprived of the effective assistance of counsel, contrary to the provisions of the Sixth Amendment to the U. S. Constitution. He urges that the reviewing court did not apply the proper standard in testing this contention, and that, whatever standard is applied, his representation did not meet it.

This general subject has received the attention of this Court in the past. In re Murphy, supra; State v. Rushford, supra; In re Bousley, 130 Vt. 296, 292 A.2d 249 (1972). Both Murphy and Rushford enunciate, with seeming approval, the socalled 'mockery of justice' standard. Under that standard, to set aside a conviction for inadequacy of counsel, the record as a whole must demonstrate a representation 'so rife with shortcomings and of such low caliber as to amount to no representation.' Still, while quoting this standard, in each case the Court went on to examine in detail the conduct of the...