Semon v. Turner, C 242-67.

• Decision Date: 26 September 1968
• Docket Number: No. C 242-67.,C 242-67.
• Citation: 289 F. Supp. 803
• Parties: James Douglas SEMON, Plaintiff, v. John W. TURNER, Warden, Utah State Prison, Defendant.
• Court: U.S. District Court — District of Utah

289 F. Supp. 803

James Douglas SEMON, Plaintiff, v. John W. TURNER, Warden, Utah State Prison, Defendant.

No. C 242-67.

United States District Court D. Utah C. D.

September 26, 1968.

Richard L. Evans, Salt Lake City, Utah, for plaintiff.

Gerald G. Gundry, Asst. Atty. Gen., for defendant.

MEMORANDUM DECISION

CHRISTENSEN, District Judge.

The petitioner, James Douglas Semon, is confined in the Utah State Prison under the Western Interstate Corrections Compact,¹ where he is serving a sentence imposed on September 4, 1965, by the Municipal Court, Southern District, County of San Mateo, California, for forgery in violation of Cal. Penal Code § 470. Petitioner seeks a writ of habeas corpus on the ground that his plea of guilty was induced by his counsel's representation that a binding plea agreement had been made and that the purported agreement was not kept.

Before being transferred to Utah, plaintiff petitioned the Superior Court of the State of California in and for the County of Tuolumne for a writ of habeas corpus. That court denied the petition on July 10, 1967, stating that it had studied the records carefully and found that petitioner had failed to show any legal cause for the issuance of the writ. A similar petition was denied on November 21, 1967, by the United States District Court for the Eastern District of California, Sherril Halbert, J., for failure to exhaust state remedies by first presenting the issues involved to the California Supreme Court. After being transferred to the Utah State Prison, petitioner filed his initial petition in this court, which was denied pending exhaustion of state remedies.² Subsequently, on March 21, 1968, petitioner sent a petition for writ of habeas corpus to the California Supreme Court alleging the same grounds for setting aside his plea and the resulting commitment as are alleged here. He received a postcard from the clerk of the California Supreme Court on or about April 26, 1968, stating "Petition for Writ of Habeas Corpus denied." It does not appear from the record that the court held any hearing or entered any written findings. It is clear that petitioner has now exhausted his state remedies as required by Section 2254 of Title 28, United States Code.

Thereafter, petitioner filed an amended petition for writ of habeas corpus in this court alleging that his guilty plea was involuntarily entered. I appointed counsel and granted an evidentiary hearing.

The original information against petitioner in the San Mateo County Court contained three counts: receiving stolen property (Cal. Penal Code § 496); forgery (§ 470); and possession of a stolen check with intent to pass or utter (§ 475 (a)). Initially, petitioner entered a plea of not guilty to all three counts but subsequently changed his plea to guilty on the forgery count on September 4, 1965, and the other two counts were dropped. Sentencing was twice postponed, once to permit petitioner a hearing as a possible drug addict and again to allow him to plead to another charge pending against him in Santa Clara County, California. That charge was dismissed, and the Santa Clara County Court mistakenly released petitioner instead of returning him to the San Mateo Court, whereupon he went to Bountiful, Utah, and resided with his father until he was arrested on a fugitive warrant on December 14, 1965. Petitioner waived extradition and was returned to California. On January 14, 1965, petitioner was sentenced on the forgery charge to five years imprisonment, suspended upon condition that he fulfill the following terms of probation: A five year probationary period, one year in the county jail, some restitution, and return to Utah to reside with his father upon release from jail,³ together with other general conditions of probation.

After serving his time in the San Mateo County Jail pursuant to the terms of the Probation Order, petitioner returned to Bountiful, Utah. On October 11, 1965, he was arrested in Davis County, Utah, and charged with attempting to obtain a drug or medicine by fraud, forgery, or false representation in violation of Utah Code Ann. § 58-17-14.13 (Supp.1967). Petitioner plead not guilty but later changed his plea to guilty. After serving a jail sentence of 120 days, petitioner was returned to California to show cause why his probation should not be revoked for violating two terms of his probation, to-wit: failure to pay restitution of $100 per month and a violation of the law. In December, 1966, defendant was committed to the California State Prison and was later transferred to the Utah State Prison under the Western Interstate Corrections Compact,⁴ to continue serving the sentence here challenged.

Petitioner contends that his plea of guilty should be set aside because it was induced by representations of his counsel that an agreement had been made with the prosecutor for him to receive "county jail time" instead of a state prison sentence and the purported promise was not kept. Petitioner testified that at the time set for preliminary hearing in the San Mateo County Court he noticed his attorney conferring with the prosecutor in the courtroom. Immediately following this conversation, the defendant's attorney:

* * * came over to the jury box, and he told me that he had made arrangements with the district attorney to drop all the other charges and give me county jail if I'd plea guilty on a count of forgery. And I said "Now, wait a minute. Are you sure of this arrangement?" I mean, I— you know, I was awfully scared at the time. And he made it quite clear that he had made that arrangement with the district attorney, that I didn't have anything to worry about. I don't know what other conferences he may have had with them; but, like I say, it appeared he was talking with them when I came into the courtroom. And he assured me of the fact that all I would receive was county jail on one count.

Petitioner further testified that he discussed other checks with a police officer who assured him that it was all right to do so in view of the arrangement that had been made concerning his guilty plea and county jail time, and that in reliance on the purported agreement he terminated proceedings which might have resulted in his commitment to the California Rehabilitation Center as a narcotic addict. Petitioner also indicated that he had had poor relations with the probation department in the past and that he wished to avoid both state prison and state probation and that he would have preferred one year in the county jail to state probation with no jail sentence at all. Petitioner was the only witness at the hearing; his attorney in the California proceedings did not testify.

This case raises the constitutional issue whether or not petitioner's guilty plea was voluntarily entered. More particularly, the questions are whether the promise in question was kept; if not, whether the representations of petitioner's own counsel renders the plea involuntary and whether the petitioner's alleged misunderstanding concerning the terms of the plea bargain, and thus of the consequences of the plea, renders the plea involuntary.

I

Since a guilty plea constitutes a waiver of the sixth amendment right to trial, it must conform to constitutional standards of voluntariness. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Before accepting a plea of guilty, the court must determine that "the plea is made voluntarily with understanding of the nature of the charge." Fed.R.Crim.P. 11. This rule is generally interpreted to mean that a defendant should understand the "consequences of the plea." See, e.g., Meaton v. United States, 328 F.2d 379, 380-81 (5th Cir. 1964), cert. denied, 380 U.S. 916, 85 S.Ct. 902, 13 L.Ed.2d 801 (1965); Kadwell v. United States, 315 F.2d 667, 669 (9th Cir. 1963). In addition, "a guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void." Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962). In determining whether or not a guilty plea was voluntarily entered a subjective standard must be applied since it is the defendant's state of mind that is in issue. The courts have indicated, however, that while subjective, voluntariness is nevertheless a question of fact which must be determined through reasonable inferences drawn from the evidence as a whole. For example, in rejecting the state's contention that a subjective standard of voluntariness is too difficult to apply, the court in United States ex rel. Thurmond v. Mancusi, 275 F.Supp. 508 (E.D.N.Y. 1967) commented:

The state of a man's mind, like most other issues of fact, is decided on the basis of reasonable inferences drawn from the known surrounding facts and circumstances. * * * While a prisoner may proclaim that his prior state of mind negated the voluntariness of his plea, if it was unreasonable for him to entertain such a belief, faith in his veracity will be shattered. "Reasonableness goes to the credibility of the accused as a matter of evidence."

Id. at 518.

In evaluating the voluntariness of the petitioner's guilty plea in this case, it may be noted that the occurrence of plea bargaining is a recognized fact in the administration of criminal law. See, e.g., American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty 3-5, 60-78 (Tent. Draft 1967); J. Skolnick, Justice Without Trial (Cambridge: Harvard University Press 1967). That a guilty plea was entered in reliance on an agreement does not automatically vitiate the voluntary character of the plea. If the agreement was fair and reasonable and the state's promise was kept, many courts will refuse to permit withdrawal of plea. See, e.g., Kinney v. United States, 391 F.2d 901 (1st Cir. 1968). As stated by the court in United States v. Miss Smart Frocks, Inc., 279 F.Supp. 295 (S.D.N.Y. 1968):

No authority has been cited, and none

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