McGrady v. Cunningham
| Decision Date | 10 November 1961 |
| Docket Number | No. 8369.,8369. |
| Citation | 296 F.2d 600 |
| Parties | Charles Mack McGRADY, Appellant, v. W. K. CUNNINGHAM, Jr., Superintendent of the Virginia State Penitentiary, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Perkins Wilson, Richmond, Va. (Court-assigned Counsel), for appellant.
Reno S. Harp, III, Asst. Atty. Gen., of Virginia (Frederick T. Gray, Atty. Gen., of Virginia, on brief), for appellee.
Before SOBELOFF, Chief Judge, BOREMAN, Circuit Judge, and MICHIE, District Judge.
This is an appeal from the refusal of the United States District Court for the Eastern District of Virginia to grant the appellant a plenary hearing upon his petition for a writ of habeas corpus. The appellant is a prisoner of the Commonwealth of Virginia in custody of the appellee, W. K. Cunningham, Jr., who is Superintendent of the Virginia State Penitentiary.
The appellant was convicted of first degree murder on May 27, 1948, by the Circuit Court of Montgomery County, Virginia, and sentenced to life imprisonment.
On September 25, 1959, the appellant filed his petition for a writ of habeas corpus in the Supreme Court of Appeals of Virginia. This petition was dismissed without a plenary hearing on January 13, 1960. On January 27, 1960, the Supreme Court of the United States denied a petition for a writ of certiorari to review the order of the Supreme Court of Appeals of Virginia. See 363 U.S. 848, 80 S.Ct. 1623, 4 L.Ed.2d 1730.
Then on October 26, 1960, the prisoner filed the petition above mentioned in the United States District Court for the Eastern District of Virginia and on January 23, 1961, the District Court dismissed the petition without a plenary hearing, thereafter denying a certificate of probable cause. This court granted such a certificate on March 28, 1961, with leave to prosecute this appeal in forma pauperis.
Two questions are presented. The first is stated in appellant's brief in two alternative forms one of which is as follows:
"When a state prisoner represented by counsel of his own choosing has been convicted of a capital crime after pleading, in effect, `guilty as charged\' to an indictment which specifies neither the degree of crime charged nor the punishments authorized, and the state trial court has inquired neither into the nature of the prisoner\'s plea nor into the prisoner\'s understanding of the consequences of his plea, may a federal court on petition for writ of habeas corpus inquire as to the validity of the prisoner\'s sentence when he has been sentenced as guilty of the highest degree of the crime charged?"
The second question may be stated as follows:
"When a state prisoner represented by counsel of his own choosing has pleaded guilty to an indictment charging a capital offense, does the failure of the judge to inquire of the accused before sentencing him whether he has anything to say why sentence should not be imposed upon him invalidate the sentence imposed?"1
I. Was the failure of the court to inquire of the prisoner whether he understood the nature of his plea of guilty and the punishment that might be meted out to him as a result thereof a fatal error?
The indictment was in the Virginia statutory form, § 19.1-166 of the Code, which does not distinguish between murder in the first degree and murder in the second degree. Even before the statute was enacted it had been held in Virginia in Commonwealth v. Miller, 1 Va. Cas. 310 (3 Va. 310), decided in 1812, that it was unnecessary for an indictment for murder in the first degree to charge specially facts that would show the offense to have been murder in the first degree.
Subsequent to the enactment of the statute the question was again raised in several cases and in Kibler v. Commonwealth, 94 Va. 804 at p. 809, (1897), Judge Keith said:
There have been a number of subsequent cases to the same effect. Hevener v. Com., 189 Va. 802, 54 S.E.2d 893; Hurd v. Com., 159 Va. 880, 165 S.E. 536; Maxwell v. Com., 167 Va. 490, 187 S.E. 506.
And it is well settled in Virginia that a plea of guilty to an indictment is a plea of guilty to the highest degree of the offense charged in the indictment. Hobson v. Youell, 177 Va. 906, 15 S.E.2d 76.
The appellant contends however that he did not in fact understand that he was pleading guilty to murder in the first degree and that his counsel, who had been retained by his father, advised him to plead guilty telling him, "Don't start anything when you go in there, because they are only going to try you for murder in the second degree." And it is also alleged that counsel further advised the prisoner that in pleading guilty to murder in the second degree he could be sentenced only to from five to twenty years in the state penitentiary.
The appellant thus alleges that he did not in fact understand the nature of his plea and its possible consequences and that a sufficient inquiry by the court would have disclosed that fact.
Counsel for the appellant has made an able argument to the effect that under these circumstances the defendant was denied his constitutional rights and is entitled to the writ of habeas corpus. However counsel apparently has not found a case so holding and neither has the court. Counsel cites many cases dealing with the right to counsel but this right is not in question here as the appellant was represented by counsel of his own choosing — or at least of his father's selection which amounts to the same thing.
Furthermore under § 19.1 — 192 of the Code of Virginia whenever a plea of guilty is entered in a felony case the court is required to try the case. Sentence cannot be imposed upon the plea alone. McGrady was so tried by the Circuit Court of Montgomery County and at the conclusion of the trial the court deferred imposing sentence until the following day, it may be assumed in order that the court might maturely consider what the sentence should be. The fact that the accused did not choose to take the witness stand and give evidence in his own behalf indicates only that his counsel thought that he would fare better if he did not take the stand. And quite possibly he did as under the indictment and his plea he might conceivably have been sentenced to death.
We hold therefore that under all the circumstances of this case the failure of the court to inquire directly of the defendant whether he understood the nature of his plea of guilty and the possible extent of the punishment that might be meted out to him does not invalidate the sentence and consequently does not entitle the appellant to a writ of habeas corpus. In so holding we do not necessarily hold that such lack of inquiry coupled with erroneous advice of counsel might not under other circumstances be fatal to the sentence, especially if full opportunity to show all the facts were not granted by giving the accused a formal trial...
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...v. Bannan, 256 F.2d 363, 367 (6th Cir.), cert. denied, 358 U.S. 890, 79 S.Ct. 129, 3 L.Ed.2d 118 (1958); see also McGrady v. Cunningham, 296 F.2d 600, 601-02 (4th Cir.1961), cert. denied, 369 U.S. 855, 82 S.Ct. 944, 8 L.Ed.2d 14 (1962); Fullen v. Wyoming, 283 F.2d 116, 116-17 (10th Cir.1960......
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