U.S. v. Masthers, No. 74-1602

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Writing for the CourtBefore BAZELON; BAZELON; HASTIE; ROBB; Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY; PER CURIAM
Citation539 F.2d 721,176 U.S. App. D.C. 242
Docket NumberNo. 74-1602
Decision Date15 June 1976
PartiesUNITED STATES of America v. Johnnie MASTHERS, Appellant.

Page 721

539 F.2d 721
176 U.S.App.D.C. 242
UNITED STATES of America
v.
Johnnie MASTHERS, Appellant.
No. 74-1602.
United States Court of Appeals,
District of Columbia Circuit.
Argued Oct. 28, 1975.
Decided April 14, 1976.
Rehearing En Banc Denied June 15, 1976.

Arthur Lowy, Washington, D. C. (appointed by this Court) with whom Nathan Rubinstein, was on the brief for appellant.

Robert Plotkin, Washington, D. C., and Paul Friedman for the Mental Health Law Project as amicus curiae.

Edward C. McGuire, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Stuart M. Gerson and David M. Bullock, Asst. U. S. Attys., Washington, D. C., were on the brief for appellee.

Before BAZELON, Chief Judge, HASTIE, * Senior Circuit Judge for the Third Circuit and ROBB, Circuit Judge.

Opinion filed by Chief Judge BAZELON.

Concurring opinion filed by Circuit Judge HASTIE.

Dissenting opinion filed by Circuit Judge ROBB.

BAZELON, Chief Judge:

These motions to vacate a plea of guilty (28 U.S.C. § 2255) and to withdraw the plea (Rule 32(d) of the Federal Rules of Criminal Procedure) are based on appellant's claim of incompetence at the time the plea was entered. Since we find that the record does not "conclusively show that the prisoner is entitled to no relief," 1 it follows that the district court erred in denying these motions without a hearing.

I.

Appellant and a co-defendant were charged in a three-count indictment with

Page 723

armed robbery, 2 robbery, 3 and assault with a dangerous weapon. 4 The charges stemmed from a robbery of a gas station and one Leon Henderson; $104 in cash and a $60 watch were taken.

There were indications from the very outset that appellant was mentally deficient. At pretrial appointed counsel moved for a Miranda hearing, asserting that appellant had not knowingly and intelligently waived his Fifth Amendment rights. At the pretrial appearance, the prosecutor admitted that "there may be some difficulty with the confession" and that he "may not use it." 5 Papers filed in connection with the proceedings below reveal that appellant could not sign his name; when his signature was required, appellant printed his name in scrawling block letters. 6

Upon entry of the guilty plea on November 26, 1973, when the trial court addressed appellant personally, 7 he simply responded, "Yes, Ma'am" or "No, Ma'am" to all but one 8 of the court's queries. 9 The complaining witness, Mr. Henderson, thereupon expressed to the court his belief that appellant was a "good" but "illiterate" man who must have been "put up to" the crime, and urged that he not be incarcerated. 10 Appellant's counsel specifically suggested, and the court apparently agreed, that "in the presentence aspect of this case . . . some attention (be) paid to the psychological aspect," and that a suitable program of rehabilitation be devised. 11

Sentencing was delayed pending preparation of a presentence report and an evaluation of appellant's suitability for rehabilitation

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under the Narcotics Addict Rehabilitation Act. 12 Appellant's "extremely low level of intelligence" and his lack of any "concept of time" were stressed throughout the presentence report. 13 The NARA staff found appellant's narcotic addiction to be questionable, and recommended "special educational or vocational training" 14 rather than NARA treatment, since "his mental capabilities would hinder him extremely in (NARA's) type of intensive, therapeutic program." 15 Again, appellant's low level of intelligence was noted, supported by the results of the Revised Beta Intelligence Test, on which appellant scored 57, 16 and the Stanford Achievement Test, on which he scored 2.2, indicating that he operates "at slightly above the second grade level of academic achievement." 17

At sentencing on March 28, 1974, counsel reminded the court of appellant's "extraordinarily low intelligence," 18 and suggested probationary supervision. When asked about a pending marriage to an old girlfriend, appellant told the court that "we haven't been together for about three years and we were getting married this month or last month, like she is expecting a kid." 19 The trial judge replied, "Not yours, I take it," to which appellant responded, "I don't

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know." 20 The court imposed a sentence of two to six years.

After a motion for reconsideration and reduction of sentence was denied, appellant filed the present motions to vacate the plea of guilty under 28 U.S.C. § 2255 and to withdraw the plea under Rule 32(d), F.R.Cr.Pro.

II.

It is "fundamental to an adversary system of justice" 21 that an individual whose "mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense" 22 may not be subjected to a trial. 23 The conviction of an accused who is mentally incompetent violates due process. 24 Where the "circumstances generat(e) a substantial doubt as to the accused's competence . . . a suitable hearing must be held." 25

It is axiomatic that an accused must be competent to enter a valid guilty plea: "A plea of guilty . . . is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence." 26 A defendant who enters such a plea waives "his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers." 27 The test of validity of the waiver is whether it is "an intentional relinquishment or abandonment of a known right or privilege." 28 If a plea is not "equally voluntary and knowing, it has been obtained in violation of due process and is therefore void. Moreover, because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant

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possesses an understanding of the law in relation to the facts." 29

A defendant's competency must be assessed "with specific reference to the gravity of the decisions with which (he) is faced." 30 Whether an accused is capable of making the "reasoned choice" 31 essential to the validity of a guilty plea and the waiver of constitutional rights such as the plea entails "depend(s) . . . upon the particular facts and circumstances surrounding (the) case, including the background, experience, and conduct of the accused." 32

A petitioner who lacked the capacity to have entered an intelligent plea may withdraw his plea pursuant to Rule 32(d), F.R.Cr.Pro., 33 and/or collaterally attack his conviction and sentence pursuant to 28 U.S.C. § 2255. 34 One who seeks such relief must be offered an opportunity to present evidence at a hearing "(u)nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief . . . ." 35

The trial court did not, and indeed could not, rely upon such a showing in the instant case. 36 Instead, it denied relief

Page 727

based on: (1) appellant's failure to raise the competence issue prior to sentencing; (2) its personal observation of appellant and the apparent understanding appellant displayed, as evidenced by his affirmative responses, during the guilty plea colloquy; and (3) appellant's admissions of his role in the robbery. These grounds, of course, do not support the denial of relief without a hearing.

(1) The district court repeatedly emphasized that "(a)ll the factors . . . raised as bases for withdrawal were known prior to sentencing." 37 The court observed that "(i)f the defendant's lack of capacity was a truly serious claim, it certainly was apparent prior to sentencing, and would have been raised at that time." 38 This proposition reflects both a misapplication of the law, and a "basic failure of our criminal justice system to recognize that special provisions must sometimes be made for the mentally retarded." 39

Rule 32(d) specifically provides for withdrawal of a plea after both conviction and sentencing. 40 There is no time limitation for the filing of a 28 U.S.C. § 2255 motion. 41 The Supreme Court has recognized that the failure to raise the competency issue prior to conviction is no bar to relief since "it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently 'waive' his right to have the court determine his capacity to stand trial." 42

Although there were early signs suggesting retardation, 43 appellant was first tested after entry of his plea. Counsel informed the court that only upon learning appellant's IQ did he appreciate the import of those earlier signs and realize that appellant might have been incompetent. 44 Counsel argued that

he was misled by defendant's attitude and manner into believing that defendant understood the proceedings and the consequences of his plea of guilty. Defendant appeared to be agreeable to all suggestions, nodding to counsel as though he understood counsel's explanation. 45 (Emphasis added.)

Counsel's initial failure to recognize appellant's retardation and appellant's apparent acquiescence must be examined in the light of available research. For example, studies could be introduced at a proper hearing, subject to examination and cross-examination, indicating that the mentally retarded often demonstrate an exaggerated

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suggestibility and need to cooperate, 46 and that retardation frequently goes undetected. 47

(2) Nor can the court's reliance on its personal observations of appellant be determinative. 48 Decisions of the Supreme Court 49 and the various courts of appeals 50 clearly indicate that the trial court's observation of a defendant's apparent rationality and comprehension is an insufficient basis for denying a hearing on a § 2255 motion raising the issue of competency. The impropriety of reliance on personal observation is highlighted in the case of a retarded defendant.

And although the district...

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58 practice notes
  • Bethea v. United Stated, No. 8460.
    • United States
    • September 27, 1976
    ...opinion, as it is clear from the subsequent case law that some confusion has followed Brawner. See, e. g., United States v. Mast hers, 539 F.2d 721 (D.C. Cir., 1976, dissent by Robb, J., at 723), and the related order in the same case dated June 15, 1976, in both of which a minority of the ......
  • Osborne v. Thompson, No. 78-3337 NA-CV.
    • United States
    • U.S. District Court — Middle District of Tennessee
    • March 29, 1979
    ...questioning, as if by rote, is particularly questionable when the defendant is of limited intelligence. United States v. Masthers, 176 U.S.App.D.C. 242, 249-50, 539 F.2d 721, 728-29 (D.C.Cir.1976); United States v. Kincaid, 362 F.2d 939, 941 (4th Cir. 1966). See also United States v. David,......
  • State v. Cleary, No. 01-289.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • February 7, 2003
    ...In such situations, a routine presentation of yes/no questions is unlikely to achieve that purpose. See United States v. Masthers, 539 F.2d 721, 728-29 (D.C.Cir.1976) ("standard Rule 11 colloquy may prove an inadequate measure of the validity of a plea proffered by a defendant of questionab......
  • Ciummei v. Com.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 25, 1979
    ...probable that he would complain of any greater pressure from counsel as impairing his freedom of choice. 14 United States v. Masthers, 176 U.S.App.D.C. 242, 246-247, 539 F.2d 721, 725-726 (1976). United States v. David, 167 U.S.App.D.C. 117, 124, 511 F.2d 355, 362 (1975). Sieling v. Eyman, ......
  • Request a trial to view additional results
58 cases
  • Bethea v. United Stated, No. 8460.
    • United States
    • September 27, 1976
    ...opinion, as it is clear from the subsequent case law that some confusion has followed Brawner. See, e. g., United States v. Mast hers, 539 F.2d 721 (D.C. Cir., 1976, dissent by Robb, J., at 723), and the related order in the same case dated June 15, 1976, in both of which a minority of the ......
  • Osborne v. Thompson, No. 78-3337 NA-CV.
    • United States
    • U.S. District Court — Middle District of Tennessee
    • March 29, 1979
    ...questioning, as if by rote, is particularly questionable when the defendant is of limited intelligence. United States v. Masthers, 176 U.S.App.D.C. 242, 249-50, 539 F.2d 721, 728-29 (D.C.Cir.1976); United States v. Kincaid, 362 F.2d 939, 941 (4th Cir. 1966). See also United States v. David,......
  • State v. Cleary, No. 01-289.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • February 7, 2003
    ...In such situations, a routine presentation of yes/no questions is unlikely to achieve that purpose. See United States v. Masthers, 539 F.2d 721, 728-29 (D.C.Cir.1976) ("standard Rule 11 colloquy may prove an inadequate measure of the validity of a plea proffered by a defendant of questionab......
  • Ciummei v. Com.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 25, 1979
    ...probable that he would complain of any greater pressure from counsel as impairing his freedom of choice. 14 United States v. Masthers, 176 U.S.App.D.C. 242, 246-247, 539 F.2d 721, 725-726 (1976). United States v. David, 167 U.S.App.D.C. 117, 124, 511 F.2d 355, 362 (1975). Sieling v. Eyman, ......
  • Request a trial to view additional results
1 books & journal articles
  • Advocacy on Behalf of Developmentally Disabled Offenders
    • United States
    • Prison Journal, The Nbr. 66-1, April 1986
    • April 1, 1986
    ...Turnball, H.R., ed. Consent Handbook. Washington, D.C.: Amer- ican Association on Mental Deficiency, 1977. United States v. Masthers, 539 F.2d 721 Wolfensberger, W. Normalization: The Principles of Normaliza- tion in Human Services. Toronto, Canada: National Instituteon Mental Retardation, ......

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