Strader v. Garrison
| Citation | 611 F.2d 61 |
| Decision Date | 20 December 1979 |
| Docket Number | No. 78-6235,78-6235 |
| Parties | Gene C. STRADER, Appellee, v. Sam GARRISON, Warden, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (4th Circuit) |
Richard N. League, Asst. Atty. Gen., Raleigh, N. C. (Rufus L. Edmisten, Atty. Gen. of N. C., Raleigh, N. C., on brief), for appellant.
T. Paul Hendrick, Winston Salem, N. C. (P. B. Whiting, Winston Salem, N. C., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, MILLER, Judge, *, and PHILLIPS, Circuit Judge.
The district court granted habeas corpus relief to this state prisoner who attacked his conviction, entered upon a plea of guilty, upon the ground of gross misadvice by his lawyer respecting the effect of the new sentence upon his parole eligibility date. North Carolina has appealed upon the ground that the parole eligibility date is but a collateral consequence of the plea of which Strader need not have been informed. It urges us to apply the rule in a case in which there was positive misinformation. We decline to do so.
In 1968 a forty-five to fifty-five year indeterminate sentence was imposed upon Strader on robbery and burglary convictions. He escaped from prison in April 1974 and, after his recapture, was put to trial in 1975 upon charges of armed robbery and conspiracy said to have been committed by him while on escape. After presentation of the state's case in the 1975 trial, the lawyers agreed upon a plea bargain. The tentative agreement was that Strader would plead guilty to both offenses, and would be sentenced to thirty years on the armed robbery conviction, to be served concurrently with the 1968 sentence, and to five to ten years on the conspiracy charge, to be served consecutively to the 1968 sentence.
In 1975 Strader was thirty-six years old.
Strader and the lawyer realized, of course, that imposition of the consecutive five to ten year sentence would postpone Strader's parole eligibility date by one-fourth of the five-year minimum. They knew, too, that imposition of the thirty-year sentence on the armed robbery conviction itself would not prolong the time during which Strader would languish in jail if he were not paroled, but Strader expressed concern that the thirty-year sentence might further postpone his parole eligibility date. He was assured by the lawyer that it would not. The advice was wrong, for under the published regulations of the North Carolina Department of Correction imposition of the thirty-year concurrent sentence clearly required a recomputation of the period to be served to establish parole eligibility, so that it would be fixed at one-fourth of the combined 1975 sentences.
The district court found that his parole eligibility date was of great importance to Strader and that he would not have entered his guilty plea if he had been correctly advised about the effect of the new sentences upon that eligibility date. He had only a few more years to serve before parole eligibility date on the 1968 sentence would have been reached, and his primary concern in 1975 was with the impact of the new sentences upon parole eligibility. The findings of fact are very substantially supported on the record, and are not challenged by North Carolina.
Clearly, Strader did not receive the effective assistance of counsel, which the Constitution guarantees. 1 This was not just a prediction which was not realized. The lawyer could have discovered the applicable rule had he looked in the published material, but he did not. The result was that Strader entered his guilty plea believing that his new eligibility date would be several years sooner than the regulations permitted.
The imposition of a sentence or sentences may have a number of collateral consequences, and a plea of guilty is not rendered involuntary in a constitutional sense if the defendant is not informed of all of the possible indirect and collateral consequences. 2 Ordinarily, parole eligibility is such an indirect and collateral consequence, of which a defendant need not be specifically advised by the court or counsel before entering a plea of guilty.
One would not suppose that the collateral consequence rule, which exempts some consequences from the positive disclosure requirement, would apply in a situation in which the defendant's guilty plea was induced by actual misadvice respecting some collateral consequence when that consequence was of substantial importance to the defendant. There are, however, two cases which hold that it does.
In United States v. Parrino, 212 F.2d 919 (2d Cir. 1954), the defendant, an alien, was assured by his lawyer that the entry of a guilty plea would not make him deportable. The defendant sought to withdraw his plea when he found that it had made him deportable. Over the dissent of Judge Frank, a panel of the Second Circuit Court of Appeals denied relief.
Again the same situation was presented in United States v. Sambro, 147 U.S.App.D.C. 75, 454 F.2d 918 (D.C. Cir. 1971). Sambro, an alien charged with a heroin offense, was advised by his lawyer that if he entered a plea of guilty and was put on probation he would not be made deportable. The lawyer informed the court that he had so advised his client and sought and obtained a probationary sentence. When the defendant found that the plea and the sentence had made him deportable, he sought to withdraw his plea. A panel of the District of Columbia Circuit Court of Appeals denied relief and rehearing En banc was denied over the dissent of four judges. In that case, Sambro discovered his deportability before imposition of the sentence and moved for leave to withdraw the plea before it was imposed. Even though the debate within the court was couched in terms of the discretion of the trial judge to refuse permission to withdraw a plea before imposition of the sentence, denial of the motion was affirmed, but only over the protest of four dissenters from the denial of En banc rehearing. Insofar as the claim was seen to have a constitutional...
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...(4th Cir.1988). Yet, petitioner's argument is strongly supported by the Fourth Circuit's closely analogous decision in Strader v. Garrison, 611 F.2d 61 (4th Cir.1979). There, Strader complained that he received ineffective assistance of counsel because he was wrongly advised by his lawyer r......
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U.S. v. Allgood
...the terms of his probation, resulted in the revocation of probation and imposition of the term of incarceration. Cf. Strader v. Garrison, 611 F.2d 61, 63 (4th Cir.1979) (holding that failure to advise of indirect, collateral consequence, such as parole eligibility, does not render a plea Th......
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Padilla v. Ky., No. 08-651
... ... exposure is overstated, the defendant might well be influenced to accept a plea ... agreement he would otherwise reject"); Strader v. Garrison , ... 611 F.2d 61, 65 (CA4 1979) ("[T]hough parole eligibility dates are ... collateral consequences of the entry of a guilty ... ...
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State v. DiFrisco
...mistakes of law resulting in a grossly misinformed defendant, O'Tuel v. Osborne, 706 F.2d 498, 500 (4th Cir.1983); Strader v. Garrison, 611 F.2d 61, 63-65 (4th Cir.1979); Hammond Page 529 United States, 528 F.2d 15, 18-19 (4th Cir.1975), or intentionally misled the defendant, Napper; see A.......
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For the Sake of Public Policy: Plea Bargaining Demands Sixth Amendment Protection Due to Its Prevalence and Necessity in the Judicial System
...once counsel has misinformed the defendant on the matter, counsel was deemed ineffective under the Sixth Amendment. Strader v. Garrison, 611 F.2d 61, 65 (4th Cir. 1979). Therefore, the Fourth Circuit considered the guilty plea not entered voluntarily and intelligently. Strader, 611 F.2d at ......