Sparks v. Sowders

• Decision Date: 04 August 1988
• Docket Number: No. 87-5749,87-5749
• Citation: 852 F.2d 882
• Parties: Roy Kenneth SPARKS, Petitioner-Appellant, v. Dewey SOWDERS, Warden, Northpoint Training Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 882

852 F.2d 882

Roy Kenneth SPARKS, Petitioner-Appellant, v. Dewey SOWDERS, Warden, Northpoint Training Center Respondent-Appellee.

No. 87-5749.

United States Court of Appeals Sixth Circuit.

Argued June 6, 1988.

Decided Aug. 4, 1988.

J. Kirk Griggs, II (argued), Lexington, Ky., for petitioner-appellant.

David Armstrong, Atty. Gen., Frankfort, Ky., Joseph R. Johnson (argued), for respondent-appellee.

Before KENNEDY and JONES, Circuit Judges, and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

Petitioner, Roy Kenneth Sparks, appeals from the district court's denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. For the following reasons, we REVERSE the judgment of the district court and REMAND for an evidentiary hearing.

I.

Petitioner was charged with murder and first degree robbery by a Carter County grand jury in the commonwealth of Kentucky. The case went to trial in March of 1984. After three days of trial, during which the commonwealth introduced a tape recording of petitioner discussing his participation in the murder in great detail with a police informant, petitioner changed his plea to guilty and was sentenced to thirty-five years in prison on the murder charge. The first degree robbery charge was dismissed.

In his pro se memorandum which accompanied his petition, petitioner made the following allegations concerning his guilty plea.

On March 15, 1984, the third day of petitioner's trial, after defense counsel had already advised petitioner that if he didn't plead guilty he would get life without parole, petitioner was informed that his mother was in the hospital in critical condition. Petitioner's counsel then advised him that if he didn't plead guilty he may never see his mother again. At this point petitioner was confused and under duress and finally agreed to plead guilty for a recommendation of thirty-five (35) years. ¹

Before accepting his guilty plea, the court engaged in the following colloquy:

The Court: I understand from talking with counsel and the defendant and the commonwealth attorney and the other parties involved in this action that the defendant has changed his mind and desires to enter a plea of guilty, is that correct sir?

Mr. Gailbraith: Based on the recommendation of the prosecutor, that's correct your Honor.

The Court: Mr. Sparks I understand that you desire to enter a plea of guilty to this charge, is that correct?

Mr. Sparks: Yes sir.

The Court: Have you been made any promises by anybody as to what the court would do other than the recommendation as to the sentence by the commonwealth attorney?

Mr. Sparks: No sir.

The Court: Has anyone put any pressure on you to enter a plea of guilty?

Mr. Sparks: No sir.

The Court: The plea is being made voluntarily?

Mr. Sparks: Yes sir.

The Court: Is it made because you feel like you are guilty of the charge?

Mr. Sparks: Yes sir.

The Court: Do you also understand that there is no right of appeal when you enter a plea of guilty that there is no right of appeal from that, do you understand that?

Mr. Sparks: Yes sir.

The Court: You still want to enter a plea of guilty?

Mr. Sparks: Yes sir.

The Court: Do you need any more time to discuss it with your attorney?

Mr. Sparks: No sir.

Subsequently, petitioner filed a motion to vacate his sentence alleging, inter alia, that his guilty plea was invalid as being involuntary and not intelligently made and that he was denied effective assistance of counsel. The motion was denied by the trial court. The court of appeals affirmed. 721 S.W.2d 726 (Ky.Ct.App.1986). The Kentucky Supreme Court denied discretionary review.

Petitioner filed a petition for a writ of habeas corpus in district court. He raised the following grounds in his petition: that the guilty plea was not knowingly, intelligently and voluntarily entered due to the trial court's failure to inform him of the constitutional rights he was waiving by entering such a plea and that he was denied effective assistance of counsel by his counsel's "mis-advice" and failure to challenge the defective indictment. ² In a memorandum in support of his petition, petitioner made the following assertion:

Concerning petitioner's first contention, petitioner was charged with murder and tried as a non-capital offense. Therefore, the maximum penalty was life imprisonment with the requirement of serving eight (8) years before being eligible for parole. Has [sic] petitioner been convicted by a jury and sentenced to life imprisonment he would have served eight (8) years before being eligible for parole, however, petitioner received a thirty five [sic ] (35) sentence and he is still required to serve more than seven (7) years before being eligible for parole. Had petitioner not been advised by counsel that he would get life without parole, he would have continued with his trial. ³

The petition was referred to a magistrate who took a totality of the circumstances approach to the issues presented, and recommended that the petition be denied. The district court took a similar approach and dismissed the petition, without holding an evidentiary hearing. Petitioner appeals from this dismissal.

Petitioner argues that the presentation of misinformation by his counsel denied him effective assistance of counsel and that the trial court's failure to inform him, on the record, of the fundamental rights he was waiving by entering a guilty plea violated his due process right under the fourteenth amendment.

II.

A.

Petitioner argues that he was denied effective assistance of counsel. He concludes that due to the misinformation provided by his counsel he decided to plead guilty instead of proceeding with the trial and taking his chances with the jury. ⁴ The two-part Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984), test applies to challenges to guilty pleas based on ineffective assistance of counsel.

In the context of guilty pleas, the first half of the test is met by showing that an attorney's actions were not within the range of competence demanded of attorneys in criminal cases. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985); McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970).

The second, or 'prejudice,' requirement on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the 'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.

Hill, 474 U.S. at 59, 106 S.Ct. at 370 (footnote omitted).

In Hill, the Court was confronted with the following question: "whether petitioner is entitled to an evidentiary hearing in a federal habeas proceeding where he has alleged that his guilty plea entered in state court was involuntary and resulted from ineffective assistance of counsel." Hill, 474 U.S. at 60-61, 106 S.Ct. at 371-72. (White, J., concurring). The Court concluded that Hill was not entitled to an evidentiary hearing on his ineffective assistance of counsel claim because he had failed to make sufficient allegations to satisfy the prejudice prong of the Strickland test.

Petitioner did not allege in his habeas petition that, had counsel correctly informed him about his parole eligibility date, he would have pleaded not guilty and insisted on going to trial. He alleged no special circumstances that might support the conclusion that he placed particular emphasis on his parole eligibility in deciding whether or not to plead guilty. Indeed, petitioner's mistaken belief that he would become eligible for parole after serving one-third of his sentence would seem to have affected not only his calculation of the time he likely would serve if sentenced pursuant to the proposed plea agreement, but also his calculation of the time he likely would serve if he went to trial and were convicted.

Id. at 60.

In the instant case, unlike Hill, petitioner has asserted and continues to assert that he would not have pleaded guilty had he been given the correct information concerning his eligibility for parole. Accordingly, we conclude that petitioner has made a sufficient allegation to satisfy the prejudice requirement of Strickland and warrant an evidentiary hearing. This, however, does not close the analysis, since petitioner also must allege facts which satisfy the first prong of Strickland.

Petitioner alleges that his trial counsel erroneously told him that if convicted he could receive a sentence of life without parole. It is uncontested that there is no such penalty as "life without parole" in Kentucky. Initially, we must decide whether petitioner's trial counsel's alleged misadvice concerning parole eligibility fell short of the range of competence demanded of attorney's in criminal cases.

This court has yet to decide whether erroneous advice concerning parole eligibility can amount to ineffective assistance of counsel. See Brown v. Perini, 718 F.2d 784, 789 n. 4 (6th Cir.1983). However, this issue has been addressed by other circuits which have held or noted that misinformation concerning parole eligibility can be ineffective assistance of counsel. See Strader v. Garrison, 611 F.2d 61, 65 (4th Cir.1979) (when petitioner is grossly misinformed about parole eligibility dates by his lawyer, and he relies upon the misinformation, he is deprived of his constitutional right to counsel). See also, Cepulonis v. Ponte, 699 F.2d 573, 577 n. 7 (1st Cir.1983) (noting that misinformation may be more vulnerable to constitutional attack than lack of information); Czere v. Butler, 833 F.2d 59, 63 (5th Cir.1987) (noting without deciding that giving misinformation may satisfy the first prong of the Strickland test); Hill v. Lockhart, 731 F.2d 568, 572 (8th Cir.) (refusing to follow Strader...