Parry v. Rosemeyer

• Decision Date: 05 June 1995
• Docket Number: No. 94-3335,A,BH-2648,94-3335
• Citation: 64 F.3d 110
• Parties: Thomas G. PARRY #ppellant, v. Frederick ROSEMEYER. . Submitted Under 3rd Cir. LAR 34.1(a)
• Court: U.S. Court of Appeals — Third Circuit

Page 110

64 F.3d 110

Thomas G. PARRY # BH-2648, Appellant, v. Frederick ROSEMEYER.

No. 94-3335.

United States Court of Appeals Third Circuit.

Submitted Under 3rd Cir. LAR 34.1(a) June 5, 1995.

Decided Aug. 21, 1995.

Thomas S. White, Federal Public Defender, W. Penn Hackney, First Asst. Federal Public Defender, Karen Sirianni Gerlach, Asst. Federal Public Defender, Pittsburgh, PA, for appellant, Thomas G. Parry.

Robert E. Colville, Dist. Atty., Kemal Alexander Mericli, Asst. Dist. Atty., Thomas N. Farrell, Asst. Dist. Atty., Office of the Dist. Atty., Pittsburgh, PA, for appellee, Frederick Rosemeyer.

Before: BECKER, NYGAARD, and ALITO, Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

Thomas G. Parry appeals from an order of the district court denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. His appeal presents the question whether a judge's or defense counsel's failure to advise a defendant offering a plea of guilty that, if he or she is sentenced to probation, his or her probation can be revoked if it is violated and a term of imprisonment substituted in its place, renders the plea unknowing and involuntary. We hold that a judge's failure to advise a defendant who is planning to plead guilty about such consequences of revocation of probation does not constitute a violation of due process because these are collateral rather than direct consequences of a guilty plea. We further hold that no violation of the Sixth Amendment right to effective assistance of counsel was made out here because the prejudice prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), has not been satisfied. Accordingly we affirm.

I. FACTS AND PROCEDURAL HISTORY

An information filed in the Court of Common Pleas of Allegheny County in May 1987 charged Parry with one count of robbery in violation of 18 PA.CONS.STAT.ANN. Sec. 3701(a)(1)(i) or (ii) (first-degree robbery) and one count of criminal conspiracy in violation of 18 PA.CONS.STAT.ANN. Sec. 903(a)(1). Parry was offered, and he accepted, a plea agreement. In exchange for Parry's agreement to plead guilty to a felony of the second degree on the robbery count, 18 PA.CONS.STAT.ANN. Sec. 3701(a)(1)(iv), and to the count of criminal conspiracy, the district attorney agreed to a sentence of eleven and one-half to twenty-three months imprisonment on the robbery count to be followed by two years of probation on the conspiracy count. Parry could have received up to twenty years imprisonment for these crimes under Pennsylvania's sentencing procedures. See 18 PA.CONS.STAT.ANN. Secs. 905(a) and 1103(2). ¹ The agreement allowed Parry to withdraw his guilty plea for any reason up to the time of sentencing.

At Parry's guilty plea hearing, the judge discussed with him the terms of the plea agreement, including the proposed sentence. Neither the judge nor Parry's attorney specifically discussed with him the possible ramifications of a probation violation. Parry was sentenced by the same judge at a separate hearing on December 21, 1987, in accordance with the negotiated plea. There was no specific discussion at the sentencing hearing about what might happen to Parry if he violated the conditions of his probation. ²

Parry served his term of imprisonment, but while he was on probation and parole he was arrested for burglary and related crimes. The same judge who earlier had sentenced Parry held a probation violation hearing on February 20, 1991, and, inter alia, revoked the term of probation and sentenced him to two to ten years on the conspiracy count. ³

After unsuccessfully seeking relief in state court in 1991 under the Post Conviction Relief Act, 42 PA.CONS.STAT.ANN. Secs. 9541 et seq., and not prevailing in his appeals thereon to the Pennsylvania Superior and Supreme Courts in 1992 and 1993, Parry filed the present habeas petition in the district court for the Western District of Pennsylvania, naming Frederick Rosemeyer, Warden of the State Correctional Institution at Greensburg, Pennsylvania, and the Attorney General of Pennsylvania as respondents. In his petition, Parry raised the same two grounds for relief that were presented in the state courts, namely, that his guilty plea was involuntary and unknowing in violation of his constitutional right to due process because he was not advised that the sentencing court could impose a two to ten year term of imprisonment in place of the two-year term of probation upon violation of the terms of his probation, and that his counsel was ineffective for failing to advise him of the potential consequences of revocation of probation.

The District Attorney of Allegheny County filed an answer to the habeas petition on behalf of the respondents, conceding that the claims were exhausted and addressing the merits of the petition. ⁴ Thereafter, the magistrate judge filed a Report and Recommendation in which he recommended that the petition be dismissed. Objections were filed, but the district court adopted the Report and Recommendation and dismissed the petition. A timely motion for reconsideration was denied and this timely appeal followed. We granted Parry's request for a certificate of probable cause to appeal and counsel was appointed to represent him in these proceedings. We now affirm.

II. DUE PROCESS

A.

Parry submits that, had he known that a violation of the terms of his probation could result in a term of imprisonment of up to ten years on the conspiracy count, he would not have agreed to plead guilty; thus, he says, his guilty plea was unknowing and involuntary in violation of due process. Parry further argues that, because counsel did not advise him that he could receive up to ten years on the conspiracy count to which he pled guilty should he violate his probation, counsel rendered ineffective assistance in violation of the Sixth Amendment. Parry asks this court to grant a writ of habeas corpus or in the alternative to remand for an evidentiary hearing on the voluntariness of his plea.

In the state court post-conviction proceedings, the court found, following a hearing at which Parry and his counsel testified, that Parry's plea was voluntary. Whether a plea of guilty is voluntary is a question of law and not a question of fact subject to the presumption of correctness of 28 U.S.C. Sec. 2254(d). Marshall v. Lonberger, 459 U.S. 422, 431, 103 S.Ct. 843, 849, 74 L.Ed.2d 646 (1983). Thus, a federal habeas court's review of the issue of the voluntariness of a guilty plea is plenary.

We note preliminarily that Parry has no other complaint about the process by which his plea was taken. The record shows that he completed and signed a seven-page questionnaire concerning his agreement to waive his right to trial by a jury, and that he answered yes to questions concerning whether his guilty plea was voluntary, whether he understood the maximum term for the offense of conviction, and whether he was satisfied with counsel's representation. His counsel also signed the form, certifying that he had advised Parry of his rights and of the meaning of the questions contained in the form, and that Parry's plea was voluntarily entered into. At the guilty plea hearing, Parry testified that he had gone over the seven-page questionnaire with his attorney and that he had answered the questions truthfully. In addition, he represented that he was satisfied with counsel's representation. Counsel testified that he felt that Parry understood the questionnaire and understood the significance of pleading guilty. Parry's only complaint then is that no one told him that he could be ordered to serve a term of imprisonment in place of a revoked term of probation and that the term of imprisonment could exceed the length of the term of probation. ⁵

B.

To comport with the Fifth Amendment, a defendant's plea of guilty must be voluntary and intelligent. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). A plea of guilty will not be found to be unknowing and involuntary in the absence of proof that the defendant was not advised of, or did not understand, the direct consequences of his plea. Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970). A direct consequence is one that has a "definite, immediate, and largely automatic" effect on the range of the defendant's punishment. Cuthrell v. Director, Patuxent Inst., 475 F.2d 1364, 1366 (4th Cir.), cert. denied, 414 U.S. 1005, 94 S.Ct. 362, 38 L.Ed.2d 241 (1973). We have held that "[t]he only consequences considered direct are the maximum prison term and fine for the offense charged." United States v. Salmon, 944 F.2d 1106, 1130 (1991), cert. denied, 502 U.S. 1110, 112 S.Ct. 1213, 117 L.Ed.2d 451 (1992). ⁶

Due process does not, however, require that a defendant be advised of adverse collateral consequences of pleading guilty, even if they are foreseeable. In accordance with this rule, we have previously held that deportation is a collateral consequence of a guilty plea that need not be explained in a Rule 11 proceeding. See United States v. Romero-Vilca, 850 F.2d 177, 179 (3d Cir.1988). Similarly, in United States v. Salmon, 944 F.2d 1106 (3d Cir.1991), cert. denied, 502 U.S. 1110, 112 S.Ct. 1213, 117 L.Ed.2d 451 (1992), where the defendant contended that his (previous) pleas of guilty to the predicate offenses were involuntary because he was not informed of the (enhanced) effect they might have on sentencing for future offenses under a career offender scheme, we held that the effect of a conviction on sentencing for a later offense is a collateral consequence. Id. at 1130. In addition, in Kincade v. United States, 559 F.2d 906 (3d Cir.) (per curiam ), cert. denied, 434 U.S. 970, 98 S.Ct. 519, 54 L.Ed.2d 458 (1977), where the defendant challenged the voluntariness of his federal guilty plea because the starting time of his sentence was delayed due to a subsequent state court conviction, we held that...