George v. Black, 83-1783

• Decision Date: 16 April 1984
• Docket Number: No. 83-1783,83-1783
• Citation: 732 F.2d 108
• Parties: Joseph GEORGE, Jr., Appellant, v. Charles BLACK, Warden, Nebraska State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 108

732 F.2d 108

Joseph GEORGE, Jr., Appellant, v. Charles BLACK, Warden, Nebraska State Penitentiary, Appellee.

No. 83-1783.

United States Court of Appeals,

Eighth Circuit.

Submitted April 10, 1984.

Decided April 16, 1984.

Paul L. Douglas, Atty. Gen., Dale D. Brodkey, Asst. Atty. Gen., Lincoln, Neb., for appellee.

Susan Jacobs, Healy, Brown, Wieland, Kluender, Atwood & Jacobs, Lincoln, Neb., for appellant.

Before ROSS, ARNOLD and FAGG, Circuit Judges.

ROSS, Circuit Judge.

The issue in this habeas corpus action is whether Joseph George, Jr.'s plea of nolo contendere to attempted sexual assault was entered voluntarily. The questions on appeal are: 1) whether a state trial court's failure to inform a defendant in a criminal trial that he would be subjected to a mental health commitment hearing upon completion of his sentence rendered a plea of nolo contendere involuntary, and 2) whether civil commitment following incarceration is a direct consequence of the defendant's plea.

Joseph George, Jr. is incarcerated in the Nebraska State Penitentiary. George was indicted and tried in Lancaster County District Court on the charge of first degree sexual assault. A jury found him guilty and the court sentenced him to a term of not less than 14 years nor more than 20 years, to run consecutive to a prior term being served. That conviction was reversed and the case remanded for a new trial following a successful appeal to the Nebraska Supreme Court. State v. George, 210 Neb. 786, 317 N.W.2d 76 (1982). George returned to state district court for arraignment on an amended charge of attempted sexual assault. As the result of a plea agreement, he entered a plea of nolo contendere to the new charge. The Honorable Donald Endacott heard and accepted the plea and found George guilty of attempted sexual assault. After a presentence investigation, Judge Endacott determined that George was an untreatable mentally-disordered sex offender and sentenced him to a term of 18 years in the state penitentiary.

George appealed the sentence to the Nebraska Supreme Court; the court affirmed. State v. George, No. 82-479, 212 Neb xxxii (1982) (affirmed without opinion). Having exhausted his state court remedies, George filed an application for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 in United States District Court on February 2, 1983. On May 6, 1983, Chief Judge Urbom dismissed the application. George appeals to this court, claiming that the district court erred in finding that George's nolo contendere plea was entered voluntarily and intelligently. George also claims that his trial counsel rendered ineffective assistance.

DISCUSSION:

George argues that his plea of nolo contendere was not made knowingly, voluntarily or intelligently because the trial judge failed to inform him that he would be subjected to a civil mental health commitment hearing upon the completion of his sentence.

A plea of guilty or no contest must be entered voluntarily and intelligently, since the accused waives a number of constitutional rights by doing so. In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), the Court instructed that relinquishments of constitutional rights must be "done with sufficient awareness of the relevant circumstances and the likely consequences." Id. at 748, 90 S.Ct. at 1469, 25 L.Ed.2d 747. However, the accused need only be informed of the "direct consequences" of the guilty plea. Id. at 755, 90 S.Ct. at 1472, 25 L.Ed.2d 747. It is not necessary to attempt to inform the defendant of all the indirect or collateral consequences. United States v. Lambros, 544 F.2d 962, 966 (8th Cir.1976), cert. denied, 430 U.S. 930, 97 S.Ct. 1550, 51 L.Ed.2d 774 (1977). "The distinction between 'direct' and 'collateral' consequences of a plea, while sometimes shaded in the relevant decisions, turns on whether the result represents a definite, immediate and largely automatic effect on the range of the defendant's punishment." Cuthrell v. Director, Patuxent Institution, 475 F.2d 1364, 1366 (4th Cir.), cert. denied, 414 U.S. 1005, 94 S.Ct. 362, 38 L.Ed.2d 241 (1973); United States v. Lambros, supra, 544 F.2d at 966.

In the instant case, George was charged with attempted sexual assault on a child: a Class III felony. The trial judge informed him of all the direct consequences of his plea. The prosecutor explained the charges as well as the possible sentence and fine. The judge explained to George in detail that he would be waiving a number of constitutional rights; George stated that he understood the nature of the rights he was waiving. The court established a factual basis for the plea and determined that George entered the plea and waived his rights "freely, voluntarily, intelligently, knowingly, and with knowledge and understanding of the consequences." The court then accepted the nolo contendere plea. The judge did not, however, inform George that under NEB.REV.STAT. Sec. 29-2920 (Reissue 1979), he would be subjected to a mental health commitment proceeding after his release from the penitentiary.

George argues that as a result of the commitment hearing, his incarceration for the crime to which he pled no contest could be extended beyond the sentence announced by the court. The question, then, is whether actual commitment to an institution is a direct consequence of the nolo contendere plea. Turning to the the test set out in Cuthrell, supra, the answer is affirmative if commitment to an institution would result definitely,...