O'Tuel v. Osborne
| Decision Date | 18 May 1983 |
| Docket Number | No. 82-6668,82-6668 |
| Citation | 706 F.2d 498 |
| Parties | William G. O'TUEL, Appellant, v. J.E. OSBORNE, Attorney General of North Carolina, Rufus Edmisten, Appellees. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Gwendolyn S. Anderson, J. Christian Annalora, Third Year Law Students (Thomas D. Rowe, Jr., Durham, N.C., Duke University School of Law on brief), for appellant.
Barry S. McNeill, Asst. Atty. Gen., Raleigh, N.C. (Rufus L. Edmisten, Atty. Gen. of North Carolina, Richard N. League, Sp. Deputy Atty. Gen., Raleigh, N.C., on brief), for appellees.
Before SPROUSE and ERVIN, Circuit Judges, and BUTZNER, Senior Circuit Judge.
William G. O'Tuel, a North Carolina inmate, appeals the dismissal of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. Sec. 2254. 1 A state trial judge had sentenced him to life imprisonment upon his plea of guilty to second degree murder. O'Tuel contends that his guilty plea was entered involuntarily and unintelligently because it was induced by gross misinformation of his counsel concerning his parole eligibility date. We agree, and reverse the judgment of the district court.
O'Tuel was indicted on January 6, 1975, on a charge of first degree murder. He retained private counsel, Henry Kitchin and Benny Sharpe, to represent him. Kitchin correctly informed O'Tuel that a conviction on the charged offense was punishable with death, 2 and strongly suggested plea bargaining. Kitchin further advised him that the most the state would concede in negotiations was a plea of guilty to second degree murder with life imprisonment. O'Tuel responded by asking Kitchin what the parole eligibility date would be if he decided to plead guilty to the lesser offense. Kitchin then incorrectly advised him that North Carolina law considered a sentence of life imprisonment as commuted to 40 years, and that he would be eligible for parole after serving 10 years. Although this previously had been the law, 3 unbeknownst to Kitchin the applicable statute had been amended. As of April 8, 1974, North Carolina law commuted a sentence of life imprisonment to 80 years, and O'Tuel would be eligible for parole only after serving 20 years of his sentence. 4 O'Tuel thereafter agreed to plead guilty to second degree murder, and the state in turn agreed to forego prosecution for first degree murder and recommend a sentence of life imprisonment. Sometime after he pled guilty and was sentenced, O'Tuel learned of Kitchin's error and the misinformation which Kitchin had given him in connection with his decision to plead guilty.
O'Tuel filed a petition for post-conviction relief on October 30, 1978, in state court contesting the validity of his guilty plea. A hearing was held on August 27, 1979, at which he was represented by appointed counsel. The court denied the petition based on its finding that "the primary consideration for the plea of guilty to second degree murder was to avoid the very likely consequence of the death penalty from being convicted by a jury of first degree murder, and that the [consideration of] eligibility of parole was of a secondary nature." The North Carolina Supreme Court thereafter denied O'Tuel's petition for a writ of certiorari.
In a benchmark decision by Judge Haynsworth, this court in 1979 stated:
[T]hough parole eligibility dates are collateral consequences of the entry of a guilty plea of which a defendant need not be informed if he does not inquire, when he is grossly misinformed about it by his lawyer, and relies upon that misinformation, he is deprived of his constitutional right to counsel.
Strader v. Garrison, 611 F.2d 61, 65 (4th Cir.1979). While there are differences between the procedural facts surrounding O'Tuel's plea and those surrounding the plea in Strader, the facts affecting the voluntariness of the two pleas are so similar that the disposition of this appeal is necessarily controlled by our decision in Strader.
The record clearly indicates that two considerations bore heavily on O'Tuel's decision to plead guilty: the possibility of receiving the death sentence if he were tried and found guilty of first degree murder, and his parole eligibility date if he pled guilty to second degree murder. Although O'Tuel never directly expressed concern about the possibility of the death sentence, both of his counsel emphasized that possibility as they urged him to engage in plea bargaining. In the state court post-conviction proceeding, Kitchin, who had been O'Tuel's principal defense counsel, stated in his affidavit:
It was my advice to Mr. O'Tuel, and that of Mr. Sharpe to Mr. O'Tuel, that regardless of what the parole provisions were, it would be in his best interest to plead guilty to second degree murder rather than run the risk of a conviction of first degree murder.
Kitchin also enlisted the aid of O'Tuel's mother and two sisters to persuade him to consider plea bargaining. It is significant that O'Tuel's principal response to these overtures from Kitchin and his family was to inquire as to his parole eligibility date in the event he pled guilty to the lesser offense. Even after Kitchin advised him (incorrectly) of the law governing parole eligibility, O'Tuel insisted that counsel verify this information with a prison official. 5
As in Strader, it is clear that O'Tuel did not receive effective assistance of counsel. 6 The state court, however, denied post-conviction relief. It found, relying mainly on Kitchin's verified statement quoted above and the fact that the transcript of the negotiated plea contained no reference to "eligibility of parole," that O'Tuel's primary concern in entering his plea was the possibility of receiving the death penalty.
The above quoted portion of Kitchin's affidavit at most establishes only that Kitchin informed O'Tuel concerning the consequences of a conviction of first degree murder and that Kitchin's primary concern was the death penalty. It is scarce proof, however, of how large that concern loomed in O'Tuel's mind. Indeed, O'Tuel testified at his state post-conviction hearing that he did not...
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