Hicks v. Oliver

• Decision Date: 05 June 1981
• Docket Number: No. 78-3048.,78-3048.
• Parties: Steve HICKS, Petitioner, v. Kenneth G. OLIVER and Kansas Attorney General, Respondents.
• Court: U.S. District Court — District of Kansas

523 F. Supp. 64

Steve HICKS, Petitioner, v. Kenneth G. OLIVER and Kansas Attorney General, Respondents.

No. 78-3048.

United States District Court, D. Kansas.

June 5, 1981.

Steven W. Kessler, Topeka, Kan., for petitioner.

Christopher Y. Meek, Asst. Atty. Gen., Topeka, Kan., for respondents.

MEMORANDUM AND ORDER

THEIS, Chief Judge.

Petitioner herein, having been granted leave to proceed in forma pauperis, has filed with the Clerk of the Court this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. A rule to show cause issued, to which respondents filed an Answer and Return, followed by the filing of petitioner's Traverse thereto. Thereafter, an evidentiary hearing was conducted with petitioner present and represented by attorney Stephen W. Kessler, of Legal Services for Prisoners, Inc., an experienced and competent attorney, appointed by the Court. Having considered all pleadings, exhibits, and materials filed, together with the testimony and other evidence presented at the hearing, the Court makes the following findings and Order.

The undisputed facts are that on April 17, 1972, Hicks was convicted in the District Court of Wyandotte County, Kansas, upon his plea of nolo contendere to the charge of first degree murder, in violation of K.S.A. §§ 21-3426 and 21-3401, in connection with the October 22, 1971, shooting death of a liquor store attendant. The killing occurred during the robbery of the liquor store. Petitioner, 18 years old at the time, was represented by appointed counsel, Anthony Russo, Kansas City, Kansas, who had advised Hicks, and was present when the plea was entered and accepted. This was Hicks' first felony conviction. Prior to accepting his plea, the Court informed him that the maximum sentence which could be imposed was death by hanging, and that he had the right to have his guilt determined beyond a reasonable doubt by a jury. Hicks entered a plea of nolo contendere, and was sentenced to life imprisonment. The Court did not discuss parole eligibility at the plea proceeding.

Petitioner contends that he was not fully informed of the consequences of his plea. In support of this contention he alleges that the attorney who represented him during the state criminal proceedings misinformed him that, as a first offender and under the age of 21 years, he would become eligible for parole in sixteen months. However, petitioner was later informed that the applicable Kansas law had been construed so that he was not eligible for parole until he had served fifteen years of his sentence. Petitioner further alleges that he relied upon the misinformation in making his decision to plead guilty, and that as a consequence his plea was not knowingly and intelligently made, and was therefore involuntary. On this basis, the Court is asked to allow petitioner to withdraw his plea, vacate the conviction, and order his release.

In the Answer and Return, respondents explain the contemporaneous circumstances which led to confusion with regard to the date of petitioner's eligibility for parole. At the time his sentence was imposed, petitioner's parole eligibility was governed by K.S.A. § 22-3717, which provided in pertinent part:

"(2) Persons confined in institutions shall be eligible for parole (a) after fifteen years if sentenced to life imprisonment or to a minimum term which, after deduction of work and good behavior credits, aggregates more than 15 years; (b) after 16 months if sentenced pursuant to conviction for a first offense to a minimum term which, after work and good behavior credits, aggregates more than 16 months, and the person sentenced is under 21 years of age at the time of sentence."

This statute, repealed in 1974, was ambiguous as to whether subsection (2)(b), which determined the eligibility of youthful first offenders, applied to one who received a life sentence. It is obvious that at the time of the plea proceeding, the law could reasonably have been read to provide that petitioner would be eligible for parole after service of either sixteen months or fifteen years.

Apparently, after petitioner began serving his sentence, he applied for release on parole, but the Kansas Adult Authority determined that he was not eligible for immediate consideration. Petitioner then objected to this determination with the result that the Parole Authority requested an advisory opinion from the Kansas Attorney General as to his parole eligibility date under § 22-3717. The Attorney General opined that subsection (2)(b) did not apply to a person sentenced to life imprisonment even though he was a youthful first offender, for the reason that subsection 2(a) governed the parole eligibility of any offender sentenced to life imprisonment.

In seeking to overturn the plea, counsel for petitioner argued that the length of time one must serve before he is eligible for parole is a consequence of which a person entering a plea should be informed. He urged that, at least, when commonly known parole provisions applicable in the usual case do not apply, a defendant must be informed of the exceptional parole eligibility terms. It was further argued that the facts, as alleged, evince a fundamental error in the state process which has resulted in a complete miscarriage of justice.

The Court has found this to be a very difficult case. However, he has concluded that petitioner is not entitled to federal habeas corpus relief for the following reasons.

At the outset, the Court rejects petitioner's argument that the judge receiving his plea was required to inform him of the date he would become eligible for parole. In support of this proposition, petitioner cites cases dealing with special mandatory parole terms or ineligibility for parole.

The cases cited by petitioner dealing with special parole are inapposite here. This is not a case where petitioner pleaded guilty to a violation of the federal narcotics laws, or similar state statutes without being informed of explicit, corollary provisions for mandatory special parole. See, e. g., United States v. Hamilton, 553 F.2d 63 (10th Cir.), cert. denied, 434 U.S. 834, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977); United States v. Sisneros, 599 F.2d 946 (10th Cir. 1979); Williams v. Morris, 483 F.Supp. 775 (N.D.Ill.1980), modified, 633 F.2d 71 (7th Cir.). Special parole is in addition to any other parole; is in effect only after the prison sentence has been served and regular parole has expired; and if revoked, the original term of imprisonment is increased by the period of special parole. Bell v. United States, 521 F.2d 713 (4th Cir. 1975), cert. denied, 424 U.S. 918, 96 S.Ct. 1121, 47 L.Ed.2d 324 (1976); Lewis v. United States, 601 F.2d 1100 (9th Cir. 1979). We deal here with discretionary rather than mandatory special parole.

Furthermore, even if this case were analogous to the special parole decisions, no relief would be warranted. Courts may grant relief in the instance of failure to inform of a special parole term only where the total custodial time, that is, the sentence plus the special parole term actually imposed, exceeds the maximum possible sentence which the court told the defendant he might receive. United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979); United States v. Eaton, 579 F.2d 1181 (10th Cir. 1978). The sentence imposed in this case was less than the maximum possible sentence of which petitioner was advised.

While contemporary authority encourages the advisement of a mandatory special parole term prior to acceptance of a plea, this Court is aware of no convincing authority requiring that a defendant be informed of a discretionary parole eligibility plan, even one which is exceptionally, rather than generally, applicable.

This is also not a case where petitioner pleaded unaware that he would be ineligible for parole throughout his term. Courts have overturned pleas on the basis of the court's failure to inform a defendant of total parole ineligibility arising from a unique statutory provision. See Moody v. United States, 469 F.2d 705 (and cases cited therein at 707), (8th Cir. 1972); Jenkins v. United States, 420 F.2d 433 (10th Cir. 1970); Munich v. United States, 337 F.2d 356 (9th Cir. 1964); but cf., Wacht v. Cardwell, 604 F.2d 1245 (9th Cir. 1979). On the other hand, relief has been denied when the ineligibility results from application of the guidelines used by the United States Parole Commission to calculate likelihood of success on parole. United States v. Glaze, No. 78-1991 (10th Cir. July 5, 1979, unpublished). In the present case, petitioner is not ineligible for parole. He merely claims to have been unaware of the minimum time he would be required to serve prior to becoming eligible for parole. It follows that cases concerning total ineligibility are distinguishable. Bell v. State of North Carolina, 576 F.2d 564 (4th Cir. 1978), cert. denied, 439 U.S. 956, 99 S.Ct. 356, 58 L.Ed.2d 348.

It has repeatedly been held that potential parole eligibility is such an indirect and collateral consequence that a defendant need not be informed of it prior to entering a plea. Hunter v. Fogg, 616 F.2d 55 (2d Cir. 1980); Robinson v. Israel, 603 F.2d 635 (7th Cir. 1979), cert. denied sub nom Robinson v. Wolff, 444 U.S. 1019, 100 S.Ct. 675, 62 L.Ed.2d 650 (1980); Johnson v. Dees, 581 F.2d 1166 (5th Cir. 1978); Bell v. State of North Carolina, supra; see also, Strader v. Garrison, 611 F.2d 61 (4th Cir. 1979). Most of the cases so holding involved pleas of guilty taken in federal court under the procedures set forth in Rule 11(c), Federal Rules of Criminal Procedure. Rule 11 sensibly requires that a defendant be informed of any mandatory minimum sentencing provision, but does not mandate advisement of the minimum portion of a sentence that might have to be served prior to possible parole. Hunter v. Fogg, supra. The Court cannot, under the auspices of federal constitutional law, apply to a state judge taking a plea, a higher...