State ex rel. Burton v. Whyte, 14418

• Decision Date: 26 June 1979
• Docket Number: No. 14418,14418
• Citation: 163 W.Va. 276,256 S.E.2d 424
• Parties: STATE ex rel. James Michael BURTON v. William WHYTE, Superintendent, Huttonsville Correctional Center.
• Court: West Virginia Supreme Court

Page 424

256 S.E.2d 424

163 W.Va. 276

STATE ex rel. James Michael BURTON v. William WHYTE, Superintendent, Huttonsville Correctional Center.

No. 14418.

Supreme Court of Appeals of West Virginia.

June 26, 1979.

Syllabus by the Court

1. "Before a guilty plea will be set aside based on the fact that the defendant was incompetently advised, it must be shown that (1) counsel did act incompetently; (2) the incompetency must relate to a matter which would have substantially affected the fact-finding process if the case had proceeded to trial; (3) the guilty plea must have been motivated by this error." Syllabus Point 3, State v. Sims, W.Va., 248 S.E.2d 834 (1978).

2. Before an initial finding will be made that counsel acted incompetently with respect to advising on legal issues in connection with a guilty plea, the advice must be manifestly erroneous.

3. A guilty plea based on competent advice of counsel represents a serious admission of factual guilt, and where an adequate record is made to show it was voluntarily and intelligently entered, it will not be set aside.

Katz, Kantor, Katz, Perkins & Cameron and David M. Katz, Bluefield, for petitioner.

Chauncey H. Browning, Atty. Gen., and David F. Greene, Asst. Atty. Gen., Charleston, for respondent.

MILLER, Justice:

James Michael Burton in this original writ of habeas corpus contends that his guilty plea was based on incompetent advice of counsel and that his conviction should therefore be set aside. We disagree and deny the writ.

The central issue is whether Burton's trial counsel was incompetent in advising him to plead guilty to a charge of grand larceny when a pretrial motion to suppress Burton's written confession was denied. The principal challenge to the confession was that it was given by Burton some two days after he had conferred with a municipal police court judge who advised him to cooperate with the police and disclose his involvement in the grand larceny. The contention is that the judge is an officer of the State and that the confession was induced or rendered involuntary by his advice.

The judge was a personal acquaintance of Burton and several months earlier had arranged for Burton to surrender to the authorities on a breaking and entering charge pending in the Circuit Court of Mercer County. The conversation in question here occurred when the judge observed Burton at the police station where he was being processed on the grand larceny charge, and expressed surprise on seeing him. Burton asked if he could speak privately with the judge, whereupon the judge took him into a room. The recollections of Burton and the judge of this conversation are essentially the same.

Burton told the judge that he and his brother had been arrested for the grand larceny of a cash register from a restaurant. He stated he was worried about the impact of this new offense on the possibility of receiving probation on the breaking and entering charge, which his attorney was endeavoring to accomplish. The judge recalled advising him that if he expected "any hope for probation at all, that the only thing that he could do is cooperate with the police, tell them what happened . . . ." In connection with the grand larceny charge, the judge also informed Burton that the Circuit Court would appoint an attorney for him if Burton "thought he was not guilty of this or if he wanted to contest it, whether he thought he was guilty of it or not. . . ."

Burton indicated to the judge that he would consider the matter. Two days later, while still in jail, he voluntarily indicated to the authorities that he wanted to take them to the site where the cash register was hidden. During this trip, Burton was given his Miranda warnings and he subsequently furnished the written confession. It is not disputed that he had also been given his Miranda rights at the time of his arrest, but at that time had declined to discuss his involvement in the grand larceny.

Another ground for the alleged invalidity of the confession is that at the time Burton was arraigned on the day of his arrest, he filled out a magistrate's form and on it indicated that he desired counsel. He thus claims that the confession is rendered invalid because it was made without the presence of counsel. It appears, however, that the confession was not brought about by interrogation after the request for counsel. This issue was not raised in the trial court at the In limine hearing on the confession.

Essentially, the relator contends that his guilty plea was brought about by the trial court's refusal to suppress his confession. We discussed a similar issue in State v. Sims, W.Va., 248 S.E.2d 834 (1978), where the defendant contended that his guilty plea was coerced as a result of the trial court's In limine ruling that an unintentional shooting during the commission of a burglary fell within the felony-murder rule. In Sims, we observed that once a guilty plea is entered "the focus is not upon the court's ruling, but the competency of defendant's counsel in advising the guilty plea in light of the court's ruling." W.Va., 248 S.E.2d at 838.

This statement in Sims was based in part on our earlier case of Call v. McKenzie, W.Va., 220 S.E.2d 665 (1975), which discussed some aspects of attacking a guilty plea by way of habeas corpus. Both Call and Sims followed the United States Supreme Court approach as set out in the Brady Trilogy, Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970); and in its sequel, Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). ¹

Sims presented a rather simple problem, since we found that the lower court's ruling was manifestly correct, and therefore that counsel had acted quite competently in advising the guilty plea. We established in its Syllabus Point 3 the following general test as to incompetent advice of counsel in connection with a guilty plea:

"(B)efore a guilty plea will be set aside based on the fact that the defendant was incompetently advised, it must be shown that (1) counsel did act incompetently; (2) the incompetency must relate to a matter which would have substantially affected the factfinding process if the case had proceeded to trial; (3) the guilty plea must have been motivated by this error."

The present case involves a somewhat more complicated issue, since the constitutionality of the defendant's confession is a more complex legal question. An argument can be made that a police court judge occupies a position of authority in the State's legal system. The advice to the defendant to cooperate and to tell them what happened about the grand larceny in order to maintain the possibility of probation on the earlier breaking and entering charge might be construed as a sufficient inducement to render the subsequent confession involuntary, on the theory that the police court judge had the implied authority to carry out the promise forming the inducement. See, e. g., Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897); Grades v. Boles, 398 F.2d 409 (4th Cir. 1968); Allen v. State, 53 Ala.App. 66, 297 So.2d 391 (1974), Cert. denied, 292 Ala. 707, 297 So.2d 399; State v. Tardiff, Me., 374 A.2d 598 (1977); State v. Stein, 70 N.J. 369, 360 A.2d 347 (1976); State v. Benavidez, 87 N.M. 223, 531 P.2d 957 (Ct.App.1975); State v. Setzer, 20 Wash.App. 46, 579 P.2d 957 (1978); See generally Annot., 7 A.L.R. 419 (1920).

Our law on this point is not crystalline. In State v. Casdorph, W.Va., 230 S.E.2d 476, 480 (1976), we held that a causal adjuration by a police officer to the defendant to tell the truth "unaccompanied by a specific promise to exact leniency from the prosecuting authorities," did not vitiate the resulting confession. In State v. Goldizen, 93 W.Va. 328, 334, 116 S.E. 687, 689 (1923), the emphasis was on someone in authority obtaining a confession from the accused "by some inducement of a temporal or worldly character in the nature of a threat, or some promise or benefit held out . . . ." Cf. State v. Mayle, 108 W.Va. 681, 152 S.E. 633 (1930); State v. Parsons, 108 W.Va. 705, 152 S.E. 745 (1930); State v. Morgan, 35 W.Va. 260, 13 S.E. 385 (1891).

Burton's other ground for attacking the confession is that it was given after he had requested counsel at his arraignment before a magistrate, but before an attorney was appointed to represent him on the grand larceny charge. We have followed the holding of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that where a defendant in custody requests counsel, police interrogation cannot be undertaken until counsel is provided, and that a confession obtained in violation of this rule may not be used at trial. State v. Bradley, W.Va., 255 S.E.2d 356 (1979) (No. 13843); State v. McNeal, W.Va., 251 S.E.2d 484 (1978). However, neither Miranda nor our cases preclude the defendant from changing his mind and voluntarily giving a confession. State v. Bradley, supra; see State v. Boyd, W.Va., 233 S.E.2d 710, 714-15 (1977); State v. Plantz, 155 W.Va. 24, 180 S.E.2d 614 (1971).

The critical point as to the invalidity of the confession is that after a guilty plea is entered and an attempt is subsequently made to overturn the plea, the legal issue of the validity of the confession must be judged from the standpoint of the competency of counsel's advice, for the reason we stated in Sims:

"To hold otherwise would destroy counsel's obligation to assess independently the facts and law of his client's case. If counsel views the trial court's rulings to be in error, his obligation is to so advise his client, and if the client so desires, to proceed to trial and appeal the error." (W.Va., 248 S.E.2d at 838)

Here, the issue of the validity of the confession was resolved against the defendant by the trial court after an...