Stevens, In re, 83-035
| Citation | 478 A.2d 212,144 Vt. 250 |
| Decision Date | 16 March 1984 |
| Docket Number | No. 83-035,83-035 |
| Court | United States State Supreme Court of Vermont |
| Parties | In re Gary Frank STEVENS. |
William W. Pearson of Downs, Rachlin & Martin, South Burlington, for petitioner-appellant.
John J. Easton, Jr., Atty. Gen., Susan R. Harritt, Asst. Atty. Gen., Montpelier, and Donna Hepler, Law Clerk, on brief, for respondent-appellee.
Before BILLINGS, C.J., HILL and UNDERWOOD, JJ., and DALEY and LARROW, JJ. (Ret.), Specially Assigned.
Petitioner, Gary Frank Stevens, appeals from an order of the Orleans Superior Court denying his petition for post-conviction relief. 13 V.S.A. § 7135. This appeal challenges the voluntariness of petitioner's plea of guilty to the State's amended charge of manslaughter, alleges ineffective assistance of counsel, and asserts that petitioner was unable to exercise his right of allocution. We affirm on the voluntariness of the plea and the ineffective assistance of counsel issues, but we agree with petitioner that he was unable to exercise his right of allocution in a meaningful way.
Petitioner was involved in an altercation at a restaurant in which he struck a man in the head several times with a beer mug; subsequently, the man died from the blows. Originally, petitioner was charged with first degree murder. After the State amended the charge to manslaughter, petitioner changed his plea from not guilty to guilty. Petitioner retained two private attorneys who represented him throughout the proceedings up to, and including, sentencing.
There was evidence of ongoing plea negotiations, but a formal plea agreement never materialized. At the post-conviction hearing below, an attorney for the State testified that the charge was amended from first degree murder to manslaughter without regard to petitioner's plea. The petitioner himself testified that he knew of no plea agreement and contended that he could either plead guilty or not guilty to the manslaughter charge. The record reveals no disclosure of a plea agreement to the court by anyone at either the plea change or at sentencing. At an earlier motion one of petitioner's attorneys testified that there had been a plea agreement reached prior to the change of plea. The attorney, however, moved for another hearing on this issue and then testified that he had been mistaken. Since that time, the attorney has consistently maintained that there was no plea agreement.
After the plea of guilty the court ordered a presentence investigation report. During the period of time the investigation was being conducted, petitioner underwent several weeks of psychiatric examination at the St. Albans Correctional Center; a report of this psychiatric examination was filed with the court on the day of sentencing. Included in the psychiatric report was a handwritten statement by petitioner that he alleges was prejudicial and exerted a negative impact on the sentencing court. An assistant judge who participated in petitioner's sentencing testified that the statement had a negative impact on him. Petitioner's attorneys were aware of the written statement shortly before sentencing but did not consider it to be of great importance given their prior relationship with petitioner. Petitioner testified that he was unaware that the statement was before the court, and that he would have written it differently had he known it would go before the court. At the sentencing hearing, counsel for petitioner argued for a short term of imprisonment, and petitioner made a brief statement urging leniency. Petitioner was sentenced to five to fifteen years imprisonment. At oral argument, counsel for petitioner represented to the Court that petitioner was no longer incarcerated but had been released on parole.
The superior court made comprehensive findings and conclusions after the post-conviction relief hearing. The findings most important to this appeal were the following: there was no plea agreement prior to petitioner's guilty plea; the plea was entered voluntarily; counsel for petitioner read the presentence investigation report and the psychological report, including the handwritten statement by petitioner; one of petitioner's attorneys testified at an earlier hearing that there had been a plea agreement, but later changed his testimony to indicate that there had been no plea agreement; petitioner's attorneys spent hundreds of hours working on the case and both were experienced in criminal defense cases. The trial court also noted that the version of V.R.Cr.P. 32(c)(3) in effect during petitioner's sentencing required only that defendant's counsel be permitted to review the presentence report prior to sentencing; this was done.
The pertinent conclusions by the trial court were as follows: petitioner's counsel adequately represented his interests and provided effective assistance; petitioner was not denied his right of allocution; there were no objective facts justifying petitioner's subjective opinion that if he went to trial on manslaughter he could be convicted of first degree murder; and petitioner's plea was made knowingly and voluntarily.
On appeal, petitioner argues that the lower court committed error when it found that his plea was entered knowingly and voluntarily and that defense counsel had provided reasonably competent legal services. He also argues that he was effectively denied his right to allocution.
Petitioner's argument that his plea of guilty to manslaughter was entered involuntarily and unknowingly, thus violating his Fifth and Sixth Amendment rights, is premised on an alleged plea agreement of which both he and the court were ignorant. Furthermore, petitioner maintains that he had a reasonable mistaken belief that if had he elected to go to trial on the charge of manslaughter, he could have been found guilty of first degree murder. Finally, petitioner reasons that, since the court below was unaware of the alleged plea agreement, he was never questioned about its terms as required by V.R.Cr.P. 11(e), and, therefore, the court never discovered his alleged misunderstanding about a potential first degree murder conviction.
Petitioner's argument quickly collapses when it is persued. The court below specifically found that there was no plea agreement and that the State's decision to amend the charge from first degree murder to manslaughter was unrelated to petitioner's change of plea. The trial court was able to hear all of the evidence and to assess the credibility of the witnesses. We have noted that we will yield to the judgment of the trial court where there is conflicting evidence at a post-conviction petition hearing. In re Fuller, 135 Vt. 575 579, 381 A.2d 1056, 1059 (1977). The only evidence supporting the existence of a plea agreement was the recanted testimony of one of the defendant's lawyers, at a hearing on May 1, 1981, and testimony that there had been plea agreement negotiations. Since that time the witness has consistently maintained that there was no plea agreement. Furthermore, mere evidence of plea negotiations cannot by itself support a finding that there was a plea agreement. See V.R.Cr.P. 11(e).
As we have already observed, we will defer to findings made by the superior court on hearings for post-conviction relief petitions where the evidence is conflicting. Fuller, supra. This is similar to our review of findings under V.R.C.P. 52(a). In this case the prosecutor, the petitioner, petitioner's counsel and the record all indicate that there was no plea agreement. We find no error with the trial court's finding of no plea agreement.
Since there was no plea agreement, we next turn to petitioner's argument that he mistakenly believed that if he went to trial on manslaughter he could be convicted of first degree murder. If true, petitioner's plea would have been involuntarily and unknowingly entered. Both the State and the defense agree that such an alleged misunderstanding may not be based solely on the petitioner's subjective misunderstanding but must be based on objective evidence which reasonably produced the misunderstanding. See In re Newton, 125 Vt. 453, 458, 218 A.2d 394, 398 (1966). Withdrawal of a guilty plea will not be allowed for a subjective mistake absent some objective evidence reasonably justifying the mistake. United States v. Robertson, 582 F.2d 1356, 1367 (5th Cir.1978). In United States ex rel. Robinson v. Housewright, 525 F.2d 988, 991-92 (7th Cir.1975), the court noted that "[w]e deem it preferable to base an analysis upon objective record facts rather than upon the defendant's recital of what he now claims were his subjective mental impressions." The reason for requiring the defendant to produce objective proof reasonably justifying his mistaken impression is that "[o]therwise every plea would be subject to successful attack." Toler v. Wyrick, 563 F.2d 372, 374 (8th Cir.1977). Thus, we must determine if petitioner's mistaken belief that he might be found guilty of first degree murder if he went to trial on manslaughter, when judged by objective evidence, was reasonably justified under the circumstances.
At the outset, we note the following finding by the trial court: "The Petitioner was not told by his attorneys that if he went to trial for manslaughter he could be convicted of the greater offenses of first or second degree murder." Petitioner contends that since he has consistently testified as to his mistaken belief we should accord this testimony "objective" weight. This is the most specious of arguments. Nothing could be more subjective than petitioner's own testimony about what he thought, unsupported by reference to specific circumstances or persons. We will accord no objective weight to such testimony. Next, petitioner argues that "[i]t takes only minimally confused reasoning to transpose 'you can plead to a reduced charge of manslaughter or go to trial on murder one and possibly be convicted' into 'you can plead to a charge of manslaughter...
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State v. Young
...statement may provide a most valuable insight into his character at a time of great value to the sentencing court." In re Stevens, 144 Vt. 250, 478 A.2d 212, 217 (1984). The only other state court that has considered the precise issue facing us today concluded that a capital defendant "who ......
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...rendered his right to speak, and any hope of mitigating whatever sentence might be imposed, a hollow gesture. Cf. In re Stevens, 144 Vt. 250, 478 A.2d 212, 217 (1984) ("We agree with the spirit of Justice Black's dissent [in Green v. United States, supra,] and will not make allocution under......
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...3 W. LaFave & J. Israel, Criminal Procedure § 25.1(f) (1984). We have preserved the practice in V.R.Cr.P. 32. See In re Stevens, 144 Vt. 250, 258, 478 A.2d 212, 217 (1984) ("right of allocution in Vermont now derives solely from V.R.Cr.P. 32(a)(1)"). Stevens is the only Vermont case describ......
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