Finch v. Vaughn
| Decision Date | 31 October 1995 |
| Docket Number | No. 94-8597,94-8597 |
| Citation | 67 F.3d 909 |
| Parties | Charlie FINCH, Petitioner-Appellant, v. James H. VAUGHN, Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
James C. Bonner, Jr., Athens, GA, for appellant.
Mary Beth Westmoreland, Asst. Atty. Gen., Atlanta, GA, for appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before TJOFLAT, Chief Judge, BIRCH, Circuit Judge, and HENDERSON, Senior Circuit Judge.
In this habeas corpus case, we determine whether a guilty plea was knowing, intelligent, and voluntary and resulted from ineffective assistance of counsel under the Fifth, Sixth and Fourteenth Amendments, when the petitioner pled guilty to state narcotics charges with the understanding that his state sentence would be concurrent with his federal sentence. The district court denied habeas relief. We REVERSE and REMAND.
In September, 1988, petitioner, Charlie Finch, who was on parole for a federal sentence with approximately ten years remaining, was arrested on state cocaine charges in DeKalb County, Georgia. Thereafter, federal authorities filed a detainer against him for violating his parole. Finch hired Harvey Monroe as his defense counsel.
After selecting a jury, Monroe and the state district attorney engaged in plea negotiations. 1 These negotiations culminated in Monroe's pleading guilty in return for a ten-year prison term to run concurrently with his previous federal sentence. Accordingly, a DeKalb County Superior Court judge sentenced Finch to a ten-year term of imprisonment "concurrent with any sentence that you are presently under, probation or parole." R1-1D-8. At Monroe's instigation, Finch specifically questioned the state trial judge concerning the meaning of "concurrent":
Id. at 9 (emphasis added).
Although Finch was taken into federal custody briefly following his plea, federal authorities returned him to state custody that same day. Finch was sent to state prison to serve his state sentence. His remaining federal sentence has been suspended until his release from state custody, at which time his federal parole will be revoked, and he will serve his federal sentence. Thus, the parole violation had the effect of tolling Finch's federal parole and deferring service of the entire remaining sentence until after he completes his state term.
Following informal efforts to effectuate the state court's concurrency stipulation as to his state and federal sentences, 2 Finch sought a state writ of habeas corpus on the grounds that his guilty plea based on a concurrent state and federal imprisonment term was involuntary, unintelligent, and ill-counseled. An evidentiary hearing was conducted in Baldwin County Superior Court. Finch testified as to his understanding of his sentence as a result of the plea bargain in response to questions by his present appellate attorney:
Q. Mr. Finch, when you pleaded guilty in DeKalb County in front of Judge Castellani, what was the plea bargain?
A. The plea bargain was that I pleaded guilty to ten years to run concurrent with any previous sentence.
Q. Did anyone tell you that the Superior Court might not have the power to enforce that sentence or effectuate that sentence?
A. No. I was under the impression that concurrent sentence, that's what it meant, you know, that the sentence would run concurrent with the other.
Q. What did you anticipate would happen with your federal sentence?
A. Well, I thought that once I got the sentence saying it would run concurrent, then I would be released to the feds.
Q. Did that happen?
A. No, it didn't.
....
Q. Why did you believe your federal parole would be revoked? Where did you get that idea that it would be promptly revoked?
A. I was under the impression that when I got a concurrent sentence then I would be released to the federal [authorities] due to the fact that they had already lodged a detainer on me.
....
Q. [D]id anyone tell you in connection with your DeKalb County plea or in any other connection, that the power to order concurrency did not belong to Judge Castellani or to the State or the D.A.?
A. No, no one told me that.
Q. You thought that if the judge designated or stipulated that the sentences would be concurrent, they would be concurrent. Right? You had no reason to believe otherwise?
A. That's what I thought.
R1-1H-11-12, 13 (emphasis added).
Monroe also testified at the evidentiary hearing in the state habeas court concerning his understanding of the concurrent sentence and the advice that he had given Finch in response to questions from the court, the state assistant attorney general, and Finch's present counsel:
A. In an effort to help Mr. Finch--or I thought it was to help--Judge Castellani made his sentence run concurrent [with] anything, any sentence he was serving. And I think his words were whether it be parole or probation. But the problem, of course, we all--I think we all were aware of was we didn't know whether the federal people would take custody of Mr. Finch and let him start serving that federal time so that the concurrent part of Judge Castellani's sentence would have any meaning to it. We hoped they would, but subsequently, they did not. They merely placed a detainer with the intention of letting Mr. Finch sit there until his State time runs out and then taking him back into federal custody.
....
Q. Was he aware that the detainer could be lodged against him and that the sentence would be tolled until the State Court time was served, so in effect the federal time would be consecutive to what he was currently serving?
A. We didn't use that terminology, it would be tolled. He knew that he owed the federal government ten years or some part of it.
....
Q. So, but now his parole isn't revoked now?
A. Right. It isn't revoked now.
....
Q. When it is, is that sentence going to be concurrent?
A. Well, the fact--the effect of it, naturally it will not be.
....
Q. There's nothing in the transcript to suggest that anybody indicated at least on the transcript to Mr. Finch that the court didn't have the power to deliver the concurrent sentence, which was the basis of the bargain he was making?
A. The question on page 8 [], the statement by the court, line 18:
Q. But Judge Castellani nowhere in there said, the D.A. nowhere says and you no where [sic] says--say--I'm sorry--
A. None of us said--
Q. --that there was a big if connected to this.
A. It's not clear in the transcript, no.
....
Q. Well, do you remember ever specifically telling him that, look, Charlie, it doesn't make any difference what Judge Castellani provides here, you know, we're going to get up here and talk about concurrency and it's not going to make any difference. The D.A. is going to recommend concurrency and it probably won't make any difference. Do you ever recall anything like that?
A. No. What I said is we will do everything we can to get the federal people to try to take you into custody so that this sentence will be concurrent. That was the way we--
Q. But you never addressed it, telling him, you're sitting down here, we'[re] dealing at a table where there's a very important party not represented and not committed. You see what I'm--you didn't tell him that whether that sentence is concurrent or not is up to somebody that's not even here in the courtroom? Not even in DeKalb County?
A. No. As I recall--as I recall, I told him that we couldn't--there was no guarantee that we could make the Federal Parole Commission do anything. That's a risk. A real risk. And in that case, I don't recall discussing in terms of if that happens, then your sentence won't really be concurrent. I don't remember saying anything like that.
....
Q. Did you have any anticipation that things would happen the way they did? Did you realistically expect that?
A. Well, we were--we had the theory, yeah, that the federal people might not do what we thought they should do.
Q. But it wasn't substantial enough to make preliminary inquiry? Correct?
A. (No response)
Q. I mean the fear.
A. We had a jury sitting there waiting on us.
Q. I know you probably had compulsions in other directions. But I mean just as to the plea, not for the fire burning across the courtroom.
A. We really didn't. We didn't do anything to check with federal people prior to entering the plea.
Q. Are you aware that their policy in situations like this is to have it occur exactly as it occur[red]?
A. I wasn't then.
Id. at 25-26, 27, 30, 31, 32-33, 45 (emphasis added).
Monroe testified that the plea negotiations were unanticipated since he had come to court prepared to go to trial. Further, he conceded that he had no experience with a defendant who had violated state laws while on federal parole, that he was unaware of how federal authorities might assume custody or federal policy in such situations, and that he had no pre-plea contact with federal parole officials. Specifically, Monroe testified that he did not advise Finch that his federal sentence could be tolled during his state sentence, and that the state plea bargain for...
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