United States ex rel. Brooks v. McMann, 375

• Decision Date: 19 March 1969
• Docket Number: Docket 32645.,No. 375,375
• Citation: 408 F.2d 823
• Parties: UNITED STATES of America ex rel. Lewis Alexander BROOKS, Relator-Appellant, v. Daniel McMANN, Warden of Clinton Prison, Dannemora, New York, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

408 F.2d 823 (1969)

UNITED STATES of America ex rel. Lewis Alexander BROOKS, Relator-Appellant, v. Daniel McMANN, Warden of Clinton Prison, Dannemora, New York, Respondent-Appellee.

No. 375, Docket 32645.

United States Court of Appeals Second Circuit.

Argued February 17, 1969.

Decided March 19, 1969.

Joel Ziegler, Hicksville, N. Y., Matthew Muraskin, James J. McDonough, Mineola, N. Y., for relator-appellant.

Arlene R. Silverman, Deputy Asst. Atty. Gen., Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., for respondent-appellee.

Before WATERMAN and FRIENDLY, Circuit Judges, and POLLACK, District Judge.^*

WATERMAN, Circuit Judge:

Appellant Lewis Alexander Brooks petitioned the federal court below for a writ of habeas corpus on the ground that his guilty plea to a state charge of third degree burglary was involuntary. He alleges that at the time the New York State trial court accepted the guilty plea he had not been warned that he was thereby subjecting himself to possible additional punishment as a multiple offender. The petition was dismissed. We affirm the dismissal order.

Brooks originally pleaded not guilty to the burglary charge and his trial began in Nassau County, New York, in September 1956. After the People's case against him had been presented, and after then consulting with his lawyer who had represented him throughout the proceedings, appellant changed his not guilty plea to one of guilty. When he appeared for the imposition of sentence on the guilty plea he continued to be represented by counsel and counsel was present when appellant was then arraigned on a district attorney's information charging him with having been convicted of three prior felonies. Brooks was then adjudged a multiple offender and, as a recidivist, was sentenced to a term of ten to twenty years in state prison. In 1967 appellant was resentenced nunc pro tunc to the same term as a second offender after the prosecutor agreed that a predicate Wisconsin conviction may have been improperly charged in the multiple offender information.

Prior to the filing of the present petition appellant, while serving the multiple offender sentence, had been for a time on parole, but was declared to be a parole violator in 1965 when he was sentenced in Bronx County, New York to a term of four months imprisonment. Having been returned to state prison he is now serving the remainder of his original sentence.

Appellant claims that the court's failure to warn him that he could be sentenced as a recidivist prior to accepting his plea was a violation of due process. In view of the lack of prior authoritative decisions dealing with the claim, resolution of it is not as easy as would first appear, but we do have some guidance from the United States Supreme Court. Appellant Crabtree in Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962) and appellant Graham in Graham v. State of West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (1912) challenged their recidivist sentences imposed after guilty pleas. In both instances their challenges were of no avail and the sentences were upheld. Nevertheless, in neither of these cases was the Court presented with the precise question we face. Crabtree attacked his sentence on the ground that he was not given adequate notice of the recidivist charge prior to the sentencing and it was his claim that this failure prevented him from preparing an adequate challenge to a prior predicate conviction and denied him an opportunity to challenge the State's representation that he was a recidivist, whereas Brooks does not deny the existence of his prior convictions but challenges the court's failure to acquaint him with the consequences to him of pleading guilty to the crime he was then charged with having committed. Similarly, in Graham, the challenge was directed to the legality of recidivist treatment, not to the voluntariness of Graham's guilty plea to the crime he was charged with having committed.

The Supreme Court established a long time ago that when a federal trial judge accepts a guilty plea as one voluntarily entered he must be concerned enough to be careful that the defendant after proper advice is fully aware of its possible consequences. Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). Special judicial attention is to be given to those defendants who plead guilty without the assistance of counsel, for in such situations the pleader's ignorance of the consequences is much more likely. Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948), United States v. Lester, 247 F.2d 496 (2 Cir. 1957). But even if due process requires that an accused be aware of possible recidivist treatment prior to a judge's acceptance of the accused's plea¹ it should not always be necessary that such information be given the accused by the court for it is obvious that if the accused knew from any other source of the possible consequences to him of a guilty plea there would be no violation of due process if the court failed to convey the information. In the present case Brooks does not allege in his habeas petition that he was ignorant of the consequences of his guilty plea; his only claim that due process was denied him is that he was not told of the consequences by the trial court.²

The circumstances here demonstrate that appellant knew the consequences that would follow after his plea. First and foremost, Brooks had counsel at each stage of the state criminal proceedings, and it is reasonable to assume that his counsel advised him of the consequences of his plea. Certainly the lack of any affidavit from his attorney that the attorney did not discuss these consequences with him weighs heavily against the petitioner. United States ex rel. Homchak v. People of State of New York, 323 F.2d 449, 450 (2 Cir. 1963), cert. denied, 376 U.S. 919, 84 S.Ct. 677, 11 L.Ed.2d 615 (1964). Also the petitioner was no stranger to the criminal courts. He had been convicted of other felonies, two of which were New York convictions. Finally, it is noteworthy that he was not astonished or dismayed when the recidivist charges were brought against him after his plea had been entered, nor did he try to withdraw his guilty plea at that time. Indeed, his sincerity or good faith in instituting the present petition is extremely questionable for he has brought it only after a ten year lapse and then only after an intervening period of parole and a return to prison as a parole violator. See United States ex rel. McGrath v. LaVallee, 348 F.2d 373, 377 (2 Cir. 1965), cert. denied, 383 U.S. 952, 86 S.Ct. 1214, 16 L.Ed.2d 214 (1966). Indeed, the allegation of a due process violation is not...