Johnson v. Beto, 72-1894 Summary Calendar.

• Citation: 466 F.2d 478
• Decision Date: 25 August 1972
• Docket Number: No. 72-1894 Summary Calendar.,72-1894 Summary Calendar.
• Parties: William JOHNSON, Petitioner-Appellee, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

466 F.2d 478 (1972)

William JOHNSON, Petitioner-Appellee, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellant.

No. 72-1894 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

August 25, 1972.

Crawford Martin, Atty. Gen., Dunklin Sullivan, Asst. Atty. Gen., Nola White, First Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., Robert C. Flowers, Asst. Atty. Gen., Austin, Tex., for respondent-appellant.

Tracy Crawford, Tyler, Tex., (Court-appointed), for petitioner-appellee; Mike A. Hatchell, Ramey, Brelsford, Flock, Hutchins & Carroll, Tyler, Tex., of counsel.

Before JOHN R. BROWN, Chief Judge, and GOLDBERG and MORGAN, Circuit Judges.

PER CURIAM:

Appellee, William Glenn Johnson, was convicted in Texas district court of armed robbery upon his plea of guilty and was sentenced to serve ninety-nine years in the state penitentiary. Upon a hearing on appellee's application for a writ of habeas corpus in the United States District Court for the Eastern District of Texas, the learned judge below found that the guilty plea was involuntary, having been induced by the prosecutor's agreement to recommend to the jury a sentence of twenty-five years imprisonment if appellee would plead guilty. There is ample evidence in the record to support that finding, and we agree with the district court that this involuntariness requires that Johnson's application for habeas corpus be granted.

It is uncontested that the district attorney who prosecuted the case made at least two unequivocal offers to Johnson to recommend to the jury a sentence of twenty-five years if he would plead guilty. Indeed, not only did the court below so find, but a state court, which denied habeas relief, also found that the guilty plea was induced by reliance on the prosecutor's offer to recommend a sentence of twenty-five years upon a plea of guilty. The federal trial court found that Johnson accepted the offer by pleading guilty. "When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello v. New York, 1971, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427, 433. The prosecutor did not have the power to promise that a given sentence would be imposed, but he did have the power to recommend a certain sentence. This is evidenced by the fact that he ultimately recommended a sentence of ninety-nine years, which the jury assessed. "A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void. A conviction based upon such a plea is open to collateral attack." Machibroda v. United States, 1962, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473, 478.

Because in the instant case the last unequivocal expression of the prosecutor's offer came before the state had presented its case and because Johnson entered his guilty plea after the testimony of the state's witnesses, the state argues that the prosecutor's offer had expired before Johnson accepted it. The court below found otherwise and, in addition, determined that the prosecuting attorney's remarks immediately before Johnson entered his plea fairly indicated that the offer remained open at the time of Johnson's acceptance. The state apparently is...