Fox v. Kelso

• Court: U.S. Court of Appeals — Eleventh Circuit
• Writing for the Court: Before KRAVITCH and COX, Circuit Judges, and DYER; COX
• Citation: Fox v. Kelso, 911 F.2d 563 (11th Cir. 1990)
• Decision Date: 07 September 1990
• Docket Number: No. 89-8791,89-8791
• Parties: Wayne FOX, Petitioner-Appellee, v. Ira KELSO, Respondent-Appellant.

Page 563

911 F.2d 563

Wayne FOX, Petitioner-Appellee, v. Ira KELSO, Respondent-Appellant.

No. 89-8791.

United States Court of Appeals, Eleventh Circuit.

Sept. 7, 1990.

Dennis R. Dun, Asst. Atty. Gen., Atlanta, Ga., for respondent-appellant.

Marilynn B. Kelm, Smith, White, Sharma and Halpern, Atlanta, Ga., for petitioner-appellee.

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

Before KRAVITCH and COX, Circuit Judges, and DYER, Senior Circuit Judge.

COX, Circuit Judge:

In this habeas corpus case, the petitioner asserts that his guilty pleas to four misdemeanors should be vacated because they were not made intelligently and voluntarily with the knowledge that he would be waiving his constitutional right against self-incrimination. The district court found that the state had failed to carry its burden of proving that the guilty pleas were knowing and intelligent, and granted relief by vacating the convictions. ¹ The state appeals.

I. BACKGROUND AND PROCEEDINGS BELOW

In late May 1986, Wayne Fox was arrested and charged in Fannin County, Georgia, with the armed robbery and aggravated assault of a taxicab driver. Attorney Roger Bradley was appointed to represent Fox at his Probable Cause Hearing, held on May 29, 1986. When the hearing commenced, the State Superior Court judge, Judge Milam, announced that prior to taking up the probable cause matter, he intended to impose sentences on Fox for four outstanding misdemeanors to which Fox allegedly had pleaded guilty, but for which he had never been sentenced.

Attorney Bradley stated to the court that he had been appointed to represent Fox only in the robbery case, that he was not familiar with any previous misdemeanors, and that in fact he was not then representing Fox on the charges that the judge was imposing sentences on that day. The judge announced that he understood Bradley's position and then immediately launched into sentencing. The judge said that Fox had pleaded guilty in Fannin County on August 28, 1981, either before Judge Neville or Judge Mills, to three charges: first, to attempting to elude an officer (Accusation No. S81R-211); second, to obstruction of an officer (Accusation No. S81R-212); and third, to driving under the influence (Accusation No. S81R-213). Judge Milam said that Fox had also pleaded guilty in Fannin County on October 3, 1980, to theft by taking (Accusation No. S80R-307).

The discussion that took place among the court, Fox, and the probation officer--who testified that he had been present when Fox pled guilty in 1980 and 1981--runs for the first eight pages of the probable cause hearing transcript. Judge Milam stated that Fox had waived the presence of counsel and pleaded guilty to the four charges mentioned previously. The judge told Fox that he had been scheduled to be back in court for sentencing on those pleas, that efforts had been made to get him back, and that Fox had failed to appear for his sentencing when scheduled. The probation officer, Richard Wood, said that an appropriate bench warrant had been issued, but no evidence of such a warrant was produced. Apparently the court had delayed sentencing in 1980 and 1981 while investigating possible outstanding charges in another county or while awaiting a presentence report.

Fox stated that he did not recall pleading guilty to a DUI charge, but that he believed someone had advised him to plead nolo contendere. Fox made no response when asked if signatures on the accusations were his. Later, he stated to the judge that he did not realize what he was signing when he signed certain papers, and he informed Judge Milam that he wished to change his plea on the theft by taking charge. The court refused to allow Fox to change his plea. Fox was then sentenced to two concurrent twelve month sentences on Accusation Nos. S80R-307 and S81R-211; to twelve months consecutive on Accusation No. S81R-212; and to twelve months, also consecutive, on Accusation No. S81R-213. In November 1986, Fox was found guilty following a jury trial of robbery by intimidation and simple battery; he later was sentenced and received a total of twenty years on those counts.

In July 1986, Fox filed a pro se petition for a writ of habeas corpus in Baldwin County, Georgia, attacking the four misdemeanor convictions in 1980 and 1981. He averred that he had pleaded nolo contendere or not guilty to those charges. Fox raised four grounds in his petition: (1) "Limitations of Prosecutions"; (2) "Denied affective [sic] assistance of counsel"; (3) "Excessive sentence"; and (4) "Illegal Sentence". In the supporting facts section following ground Two, Fox stated: "Attorney stated he was not familiar with case and therefore, did not have legal assistance of an attorney as the court records will show. Attorney stated he was not representing me on those cases." In the identical section following ground Four, Fox wrote: "Petitioner was denied due process of law guranteed [sic] under sixth amendment, whereas accused shall have right to counsel, Petitioner states sentence is illegal due to the fact statue [sic] of limitations has ran out on the charges." (emphasis added).

A hearing on the petition was held in Baldwin County in November 1986. Fox testified that Attorney Bradley was not representing him on the charges for which he was sentenced on May 29. He stated that he had pleaded nolo contendere to the 1981 DUI charge and had been released by the judge at that time. Fox said that he had not been convicted of and had not pleaded guilty to the other three charges. When shown the accusations which allegedly bore his signature, Fox testified that the signature on the DUI plea "could be" his, but that he wasn't sure; as to the other three, he denied that they bore his signature or said he did not think they did. Certified copies of the four accusations were admitted into evidence. ² The state gave a brief closing argument in which it argued that Fox had pleaded guilty to the various charges as evidenced by the accusations and then had fled the jurisdiction before sentencing. As evidence of this, the state submitted evidence that Fox had been arrested and had served time for charges in Tennessee. ³ The state pointed out that Fox's lawyer at the probable cause hearing was there on another matter, was not representing Fox on the misdemeanors, and therefore, that his claim of ineffective counsel was "not appropriate" and was due to be dismissed. Thereafter, the judge denied Fox's petition from the bench. ⁴

On July 21, 1987, Fox filed a second state habeas petition, this time in Butts County. In this petition, he raised basically the same issues raised earlier in the Baldwin County petition. A brief hearing was held and Fox's petition was dismissed as successive on September 2, 1987.

Thereafter, with the assistance of counsel, Fox filed a petition for writ of habeas corpus in the United States District Court. The United States magistrate to whom the case was referred identified five issues contained in the petition:

In the instant application the applicant contends (1) that he did not plead guilty to the four misdemeanor charges, (2) that, if he did plead guilty, his pleas were involuntary and not intelligently entered, (3) that he was denied counsel with respect to the entry of said pleas and at sentencing, (4) that he was not advised of his right to counsel thereat, and (5) that his convictions and sentences therefor violated his rights to due process. ⁵

ROA Vol. 1, Tab 1.

An evidentiary hearing was held before the magistrate, and numerous witnesses testified. Among them were Fox, Judge Pope (who apparently took the October 1980 plea), Judge Mills (who took the 1981 pleas), Judge Milam (who sentenced Fox on the misdemeanors in 1986), Roger Queen (the District Attorney at the time Fox was sentenced), and Kenneth Wood (the probation officer at all times). Fox denied that he had ever been informed of his Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), rights when he allegedly pleaded guilty. ⁶ He stated that he did not believe the signatures on the accusations were his. None of the other witnesses specifically recalled Fox pleading guilty either in 1980 or 1981. Based on his courtroom log, Probation Officer Wood stated that he was familiar with Fox entering the pleas; however, none of the witnesses for the state could testify what rights Fox was informed of or how he responded to questions by the court. Judges Pope, Mills and Milam all described the custom and practice of plea taking in Fannin County, but none had any recollection of this actual plea. There was testimony that all pleas would be taken before a court reporter although not necessarily transcribed. In this case, the state was unable to identify who the court reporter might have been; ⁷ any tape or transcript that might ever have existed is gone. Judge Mills discussed a number of documents that should be present in the typical case which would help demonstrate that Fox's pleas were knowing and intelligent; none of those was present in this case. ⁸ There was also testimony that Fox had been released to Whitfield County in October 1980 to face charges there and that they had been dismissed and Fox released without any detainer or hold lodged against Fox for return to Fannin County for sentencing.

The district court adopted the magistrate's recommendation that Fox's guilty pleas be set aside. The magistrate found that the state failed to show that Fox had been properly advised of his right to remain silent, to have appointed counsel, to be advised of the charges against him and the punishment therefor, and to confront the witnesses against him, and thus failed to show that he voluntarily and intelligently pleaded guilty to the theft by taking charge. The magistrate found further that the state failed to demonstrate that Fox knowingly and intelligently pleaded guilty to the 1981 misdemeanors and that,...