United States ex rel. Scott v. Mancusi, 319

• Decision Date: 06 July 1970
• Docket Number: Docket 33375.,No. 319,319
• Parties: UNITED STATES of America ex rel. Charles F. SCOTT, Petitioner-Appellee, v. Vincent R. MANCUSI, Warden, Attica Prison, Attica, New York, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

429 F.2d 104 (1970)

UNITED STATES of America ex rel. Charles F. SCOTT, Petitioner-Appellee, v. Vincent R. MANCUSI, Warden, Attica Prison, Attica, New York, Respondent-Appellant.

No. 319, Docket 33375.

United States Court of Appeals, Second Circuit.

Argued November 20, 1969.

Decided July 6, 1970.

Herald Price Fahringer, Buffalo, N. Y., for petitioner-appellee.

Joel Lewittes, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen. of the State of N. Y., and Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for respondent-appellant.

Before LUMBARD, Chief Judge, ANDERSON, Circuit Judge, and BRYAN, District Judge.^*

LUMBARD, Chief Judge:

The State of New York appeals from an order of the Western District which granted relator Charles Scott's petition for a writ of habeas corpus after a hearing. Scott claimed that his conviction, entered on a plea of guilty to manslaughter in the second degree, and his subsequent sentence to 7½ to 15 years in Attica State Prison, was invalid because (1) his plea was involuntary as it was induced by the assurances given to him by his own counsel that he would be sent to Washington, D. C.; (2) his plea was involuntary as his counsel had led him to believe that the plea could be withdrawn at any time before sentence; and (3) it was error for the trial judge not to accept his application to withdraw the plea before sentence when there was no apparent prejudice to the state. We find that the plea was voluntary and that there was no abuse of discretion. On the facts shown we believe there was insufficient evidence as a matter of law to support the conclusion of the district court that the plea was involuntary, and that the determination to the contrary was clearly erroneous. We reverse and dismiss the petition.

Scott was indicted in Erie County on November 30, 1962, charged with first degree manslaughter. Scott had fatally stabbed Arthur Lewis, aged 41, in a bar-room brawl early in the morning of October 2, 1962. At the time, he was on parole, from a conviction in Washington, D. C., where on January 21, 1952, he had been convicted of second degree murder for the slaying of his paramour, and had been sentenced to 15 years to life. The stabbing in this case took place in a bar and it was apparently not disputed that Scott actually killed Lewis, the only issue being whether or not the killing was in self-defense. Scott had a prior conviction, was a parole violator, and whatever the outcome of the New York trial he was certain to be returned to Washington to serve more time. Consequently, counsel had good and sufficient reason to feel that Scott should plead guilty to a lesser offense and not stand trial.

On March 4, 1963, Scott's attorney, Herald P. Fahringer, Esq., met with the assistant district attorney and the trial judge, Frederick M. Marshall, and discussed the possibility of Scott pleading guilty to a reduced charge of manslaughter in the second degree. Counsel wanted the judge to suspend the sentence in New York and return Scott to Washington, D. C., as a parole violator. The judge, refusing to make any promises, said he would consider a suspended sentence if he could be assured that Scott would be required to serve at least five years upon his return to Washington. Counsel called the parole officials in Washington and a letter was subsequently sent by the Board of Parole stating that it would not consider any application for release until Scott had served at least two years and that there was "little possibility" that the Board would entertain such an application for at least five years.

The letter had been mailed, but not received when Scott and his counsel came before Judge Marshall on March 13, 1963. Scott then withdrew his earlier plea of not guilty to first degree manslaughter and entered a plea of guilty to second degree manslaughter. The court, after confirming Scott's desire to be near his family in Washington, then said:

"Your attorney has indicated to me that he\'s getting some correspondence from the correction or prison officials in Washington, D. C., which will indicate to the court what action they are going to take and he\'s going to submit that to me and after I have had this documentary evidence I will then have to make a determination as to whether or not I can send you back or whether you should go to Attica here in this state, are you aware of that?"

Scott responded affirmatively and then engaged in the following colloquy with the court:

The Court: In other words, I am not telling you now and I have not told your attorney or the assistant district attorney that you are under all conditions, under all circumstances going back to Washington, D. C. That might not happen.

The Defendant: Yes.

The Court: You are aware of that?

The Defendant: Yes, sir.

The Court: It might well be, after reviewing the papers and probation investigation that I might feel that the interest of justice might be served by your being sentenced to serve your term here in New York State.

The Defendant: Yes.

The Court: Now, with that explanation do you want to say anything?

The Defendant: Well, I don\'t guess I have anything to say.

The Court: Has everything I said been understandable to you?

The Defendant: It\'s been understandable to me.

The Court: Does it fairly and accurately represent the discussions that you have had with your lawyer and your understanding?

The Defendant: Yes, sir. But may I say this?

The Court: Yes.

The Defendant: I don\'t think anyone is justified in taking a life but in this particular incident I was reluctant to enter a plea, sir, but I have been advised by my legal counsel and I think he was in better position to know than I.

The Court: Has any undue influence —

The Defendant: No, sir, none whatsoever.

The Court: — been exercised upon your will?

The Defendant: None whatsoever.

The Court: Are you being forced to do this ?

The Defendant: No.

The Court: This entering of this plea is your —

The Defendant: My decision.

The Court: And your conclusion that it\'s the proper way out of the whole thing?

The Defendant: Yes, I would say that.

The Court: All right, now, you stand charged with manslaughter in the 2nd degree. How do you plead, sir?

The Defendant: I plead guilty, sir.

When Scott and his attorney appeared before Judge Marshall on April 1, 1963, for sentence, Scott asked that he be allowed to withdraw his plea. He had just had a conversation with his attorney, and apparently Scott had been given the impression that the judge was "somewhat cold" and had a "cold attitude" that day. He had asked his counsel whether it was "guaranteed" that he would be sent to Washington, and counsel responded that there were no "guarantees." Judge Marshall refused to allow the plea to be withdrawn, stating:

"If there is some substantial reason as to why he should be permitted to withdraw his plea I will permit it. If it\'s really because he\'s afraid he might go to Attica rather than Washington, D. C. and serve his time there, I\'m not going to permit him to withdraw his plea under those circumstances."

Scott was then sentenced to 7½ to 15 years in Attica State Prison. The next day, April 2, 1963, Scott's attorney wrote to Judge Marshall requesting him to reconsider his denial of the application to withdraw the plea, pointing out that he had "prevailed upon Scott with some vigor to enter a plea of guilty because I felt he would be sent to Washington."

The district court found that there were no promises made by the trial judge or the prosecuting attorney which were not kept. On March 4, 1963, there was only minimal participation by the assistant district attorney and the examination which took place at the time the plea was taken was a clear indication to Scott that no promises had been made by anyone. We agree with the district court that "there is no evidence to support" the claim that promises had been made by the trial judge or prosecuting attorney.

However, the district court also found that the petitioner's retained counsel made misrepresentations to the defendant concerning the sentence which the petitioner would receive if he pleaded guilty, that the petitioner relied upon these misrepresentations in pleading and, therefore, his plea of guilty was not voluntarily made. We believe these findings to be clearly erroneous as the evidence presented by Scott is insufficient to show any misrepresentations.

A guilty plea, entered in either a state or federal court, must be voluntarily and knowingly made. Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Waley v. Johnston, 316 U.S. 101, 62 S. Ct. 694, 86 L.Ed. 1302 (1942); Kercheval v. United States, 274 U.S. 220, 47 S. Ct. 582, 71 L.Ed. 1009 (1927). Further, a conviction which is based upon an involuntary plea of guilty is inconsistent with due process of law and is subject to collateral attack by federal habeas corpus. United States ex rel. Richardson v. McMann, 408 F.2d 48, 51-52 (2d Cir. 1969); United States ex rel. McGrath v. LaValle, 319 F.2d 308 (2d Cir. 1963).

Scott's first claim is that his plea was involuntary because his counsel had told him he would be sent to Washington, if he entered the plea. There is no evidence, however, that Scott was told by his counsel that he would definitely be sent to Washington if he entered his plea, although counsel did testify at the hearings that he had told Scott that he "felt sure" that he would be sent to Washington. It is apparent that no "guarantees" were made by counsel to Scott. Furthermore, the pleading colloquy which occurred in court demonstrates that Scott knew the matter was still far from settled.

The representations made by counsel to Scott were couched in the language of hope rather than of promise and were merely estimates made in good faith as to what he thought would result when the letter from the parole authorities was received. It is well settled in this circuit that "An erroneous sentence estimate by...