Ehl v. Estelle, 80-1310

• Decision Date: 14 September 1981
• Docket Number: No. 80-1310,80-1310
• Citation: 656 F.2d 166
• Parties: James Edward EHL, Petitioner-Appellee, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellant. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 166

656 F.2d 166

James Edward EHL, Petitioner-Appellee, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellant.

No. 80-1310.

United States Court of Appeals, Fifth Circuit.

Unit A

Sept. 14, 1981.

Douglas M. Becker, Asst. Atty. Gen., Austin, Tex., for respondent-appellant.

George Whittenburg (Court-appointed), David Christopher Mullin, Amarillo, Tex., for petitioner-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before BROWN, WISDOM and RANDALL, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

I.

Appellant James Edward Ehl (or Ehl) was first indicted in the Texas Court on December 30, 1975, for passing a forged instrument. While he was awaiting trial on this charge, Ehl was charged with the felony offense of escape from jail. Faced with the status of an habitual offender which carries with it an automatic sentence of life imprisonment, plea bargaining ensued. In exchange for the prosecutor's agreement not to seek habitual offender status, Ehl waived indictment on the escape charge, agreed to be tried by information for the offense of escape from jail and pleaded guilty to both charges and waived appeal. Pursuant to the plea agreement, he received two five year concurrent sentences.

While waiting to be transferred to the Texas Department of Corrections, Ehl wrote a letter ¹ on June 1, 1977, to the trial judge indicating his desire to appeal his conviction on the escape charge, and asserting that (i) the prosecutor had offered a lower sentence on the forgery charge before the escape had occurred, (ii) his guilty pleas were coerced because, after the escape, the prosecutor threatened enhanced punishment if Ehl refused to plead guilty, and (iii) he had a valid defense in the escape case that he wished to raise. Sensitive to these charges, which did not implicate any actions of the trial judge or, for that matter, any actions by the prosecutor, the Judge held an evidentiary hearing on June 3, 1977, at which time the Judge in his discretion allowed Ehl to (i) withdraw his guilty plea on the escape charge on which he would have to stand trial, and (ii) appeal his conviction on the forgery charge which was based on his unchallenged guilty plea.

The appeal of his forgery conviction based upon his valid, unquestioned guilty plea resulted in an affirmance by the Texas Court of Criminal Appeals on November 2, 1977. See Ehl v. State of Texas, 557 S.W.2d 123 (Tex.Cr.App.1977) (unpublished opinion). With the trial court allowing him to withdraw his earlier guilty plea to the escape charge, he was faced with standing trial. A grand jury indicted him on October 5, 1977, charging the primary offense of escape from jail and alleging two prior felony convictions for enhancement. See Tex.Penal Code Ann. § 12.42(d). Hence, the prosecutor's initial intention made in earlier plea negotiations that he would seek the maximum possible punishment for escape if Ehl contested his guilt was, in fact, carried out.

Ehl went to trial on January 11, 1978, on the escape indictment with enhanced charges. While the jury was deliberating, Ehl and the prosecutor entered into a second plea agreement. This agreement provided that if the jury found Ehl guilty of escape, the enhancement counts would once again be waived and a sentence of ten years would be recommended to commence when Ehl completed his time for the now affirmed forgery conviction.

The jury did return a guilty verdict on January 11, 1978. Upon assurance that Ehl understood the terms of the plea bargain, the Court sentenced him for not less than two nor more than ten years consecutive to his forgery sentence. In short, Ehl had traded guilty pleas with no appeals and concurrent five year sentences, for one unsuccessful appeal, one unsuccessful trial following a plea of not guilty and a consecutive sentence of five and ten years respectively.

Displeased with this outcome, Ehl exhausted state habeas remedies and filed a federal writ alleging that the increased charges in the new indictment, which resulted in an increased sentence, constituted prosecutorial and judicial vindictiveness. Ehl's habeas corpus was granted by the Federal District Court.

In reaching the decision to grant the writ, the District Court, relying principally on the case of Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) ², found that because the charges in the enhanced indictment were more serious than those originally alleged after Ehl had exercised his right to a trial, the second indictment posed a reasonable likelihood of prosecutorial vindictiveness. This placed on the State, according to the Court, the burden of showing that the prosecutor's motives were not vindictive, and since the State had failed to meet this burden, Ehl had been denied due process. This was compounded by the trial court's failure, as required under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) ³, to place in the record objective information that would support a sentence increase for the same offense, thus constituting judicial vindictiveness. This appeal challenges those charges of prosecutorial and judicial vindictiveness that led to the Court's granting of Ehl's habeas relief.

II.

Ehl, as did the District Court, relies on the general principle announced in Blackledge and Pearce (see notes 2, 3, supra ) that once a prosecutor changes his formal plea bargaining position following a conviction, and the defendant exercises a constitutional right to challenge that conviction, a presumption of prosecutorial vindictiveness arises. Blackledge, 417 U.S. 27, 94 S.Ct. at 2102, 40 L.Ed.2d at 634. Ehl then argues that even though he belatedly rejected the State's original plea bargaining, the State, nevertheless, should have been bound by the original terms of the plea bargain in the subsequent proceedings. A contrary result, as Blackledge predicts, would create in future defendants an apprehension that the State would retaliate against their exercise of constitutional or statutory rights. Since the enhancing indictment in the present case carried a potential maximum punishment of life imprisonment, a presumption of prosecutorial vindictiveness was present. Consequently, the argument runs, it was then incumbent on the State to rebut this presumption which it failed to do. ⁴

Ehl's reliance on Pearce and Blackledge and their progeny is misplaced. Those cases involved a situation where there had been an appeal of a contested trial, unlike the present situation in which Ehl has not claimed any error by the trial court in the original guilty plea hearing. Furthermore, this Court, sitting en banc in Frank v. Blackburn, 646 F.2d 873 (5th Cir. 1980) has cast doubt on the applicability of Pearce in plea bargaining situations. "We find the rule of North Carolina v. Pearce to be completely inapplicable to post-plea bargaining sentencing proceedings. Accord, Martin v. Blackburn, 606 F.2d 92, 93 (5th Cir. 1979), cert. denied, 446 U.S. 911, 100 S.Ct. 1841, 64 L.Ed.2d 265 (1980) ('it is highly questionable whether Pearce applies to plea bargaining situations')", Frank, 646 F.2d at 883. The En Banc Court reasoned that if "a defendant can successfully demand the same leniency in exchange for a guilty plea, all the incentives to plea bargaining disappear; the defendant has nothing to lose by going to trial." Id. ⁵

In light of this pronouncement in Frank and the facts of the present case, we find Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) more analogous than either Pearce or Blackledge. In Bordenkircher the prosecutor offered to recommend a five year prison sentence if the defendant would plead guilty to a forgery indictment. The prosecutor further made it clear that he would reindict the accused under the State's habitual offender act if he chose to plead not guilty. Bordenkircher, 434 U.S. at 358, 98 S.Ct. at 665, 54 L.Ed. at 607. The defendant in that case chose to stand trial and the prosecution carried out its expressed purpose. The Supreme Court concluded that there was no due process violation when the prosecutor carried through with promised terms which the accused was aware of during plea negotiations, but which he ultimately chose to reject. In explaining the rationale for its holding, the Court distinguished Pearce and Blackledge, stating:

In those cases the Court was dealing with the State's unilateral imposition of a penalty upon a defendant who had chosen to exercise a legal right to attack his original conviction a situation 'very different from the give-and-take negotiation common in plea bargaining between the prosecution and defense, which arguably possess relatively equal bargaining power.' Parker v. North Carolina, 397 U.S. 790, 809, 90 S.Ct. 1458 (1479-80), 25 L.Ed.2d 785 (opinion of Brennan, J.).

But in the 'give-and-take' of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution's offer.

Bordenkircher, 434 U.S. at 363, 98 S.Ct. at 668, 54 L.Ed.2d at 610-11.

A crucial inquiry that we glean from Bordenkircher, therefore, is whether the accused was aware of and knew the price of rejecting the bargain. We find the record before us clear on this point. As reflected at the evidentiary hearing the possibility of a lengthier sentence due to likely enhanced charges was communicated to Ehl and his attorney in the initial plea bargaining stages. ⁶

Further, as Bordenkircher stresses, a prosecutor has a good deal of leeway to induce defendants to forego their rights to plead not guilty ⁷. The State's interest in inducing Ehl to plead guilty, subsequent to the Court's allowing him to stand trial after he effectively withdrew his guilty plea, was identical to its interest prior to his aborted guilty pleas. At this stage of the process since Ehl had, in effect, rejected the bargain, there was no...