United States ex rel. Dunn v. Casscles

• Decision Date: 25 March 1974
• Docket Number: Docket 73-2321.,No. 671,671
• Parties: UNITED STATES ex rel. Raynard DUNN, Appellant, v. J. Leland CASSCLES, Superintendent, Comstock Correctional Facility, Appellee.
• Court: U.S. Court of Appeals — Second Circuit

494 F.2d 397 (1974)

UNITED STATES ex rel. Raynard DUNN, Appellant, v. J. Leland CASSCLES, Superintendent, Comstock Correctional Facility, Appellee.

No. 671, Docket 73-2321.

United States Court of Appeals, Second Circuit.

Argued January 24, 1974.

Decided March 25, 1974.

John A. Keeffe, New York City (Keeffe & Costikyan, New York City on the brief), for appellant.

John Proudfit, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of N.Y.; Samuel A. Hirshowitz and Iris A. Steel, Asst. Attys. Gen. of counsel), for appellee.

Before MOORE, HAYS and OAKES, Circuit Judges.

OAKES, Circuit Judge:

This appeal by a prisoner in state custody is from a denial of a writ of habeas corpus under 28 U.S.C. § 2254. Appellant alleges that his plea of guilty in Supreme Court, Bronx County, New York, to the crime of robbery in the third degree, NYPL § 160.05, was constitutionally invalid. The court below asserted that the appellant's claim of invalidity was based on an assertion of his innocence at the time of his plea, but the claim as we perceive it is more complex, that, within North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), the state court judge failed to ascertain if there were a factual basis for the plea. We agree with appellant's claim and reverse the judgment.

Appellant was charged in an indictment with second degree robbery, second degree assault and third degree grand larceny. On March 8, 1971, he appeared before Justice Postel of the New York Supreme Court, represented by a Legal Aid attorney, Robert Lupo, Esq. These proceedings commenced with Mr. Lupo stating that his client wished to enter a plea of guilty to robbery in the third degree, a Class D felony, under the first count of the indictment, to cover the entire indictment against him. The State recommended acceptance of the plea and the court clerk stated that if the final finding of the court were that appellant was a narcotic addict he could be certified to the care and custody of the Narcotic Addiction Control Commission (NACC) for a period not to exceed 60 months.¹ The sentencing judge was very careful to ask the defendant if he wanted to enter the plea and if he wanted the court to consider placing him in the "Rockefeller Program," that is to say, under the NACC. Justice Postel also ascertained that there were no promises and that appellant understood that his plea would act as a waiver of the various constitutional rights such as trial by jury.

The judge then went on to the question whether appellant admitted the commission of the crime. The answer was yes, and the sentencing judge asked him more specifically if he did "steal money from Judy Berloco on December 11, 1970 ...." After several explanations by the defendant describing his arrest but not admitting to the crime, the court asked twice, "Did you commit the (this) crime?" and the defendant responded on both occasions, "Yeah." The court then said, "All right, that means you stole from Judy Berloco; is that right?" The defendant said, "Yeah, excuse me, may I say something, Your Honor?" He then went on to say, with the court's permission, "If I say I didn't do it, I won't get the Rockefeller, you'll give me the four years and take me to trial. I'll say I did it." On the strength of that, the sentencing judge said, for the third time, "Did you commit this crime?" and the defendant said, "Yeah." At that point the court said, "Tell me what you did now in your own words," being apparently unsatisfied that the elements of the crime had been established. The defendant then proceeded to relate that he was driving home with a companion on Bruckner Boulevard, and was stopped at Evergreen Avenue, where police jumped out of their car and searched them, taking them in a car down the block where there was a lady. This lady said she wasn't sure but that the height of her assailant did fit appellant, the result being that the policemen put him in the car.

At this point the judge interrupted to say, "So you didn't do this, did you?" and the defense attorney, Mr. Lupo, interjected, "Just tell the truth." The appellant said, "No, I didn't do it." The court then said "All right, I won't take your plea. Let's go to trial." The defendant replied, "No. Then I want to get the NACC though." The court said, "I can't send you to NACC unless you've committed a crime and if you tell me you didn't commit a crime —" whereupon the defendant replied, "I commit the crime." The court then said, "What did you do?" The defendant said, "I had what you said I had down there." Mr. Lupo then said "I can't plead him under these circumstances, Judge." After a conference at the bench between court and counsel, the defendant sought to and was permitted to explain. He said, "What I'm trying to say is if I do say I'm not guilty right, and it goes to trial, anything happen that they find me guilty whether I did it or not I got a lot of time facing me. That's what I want you to understand me. That's what has me puzzled." The court then went on to say, "Are you taking this to avoid the possibility and risks of a trial?" and the the defendant said, "Yes." The court said, "Take his plea. Get his pedigree." His pedigree was taken and included the following statement: "Stands mute." Counsel asked for and the court granted an NACC exam, and subsequently did sentence appellant on April 18, 1971, to an indefinite term of imprisonment not to exceed four years.

The conviction was unanimously affirmed without opinion by the Appellate Division, First Department. People v. Dunn, 40 A.D.2d 761, 336 N.Y.S.2d 411 (1972). Leave to appeal to the New York Court of Appeals was denied on November 1, 1972. Judge Brieant below held that "Petitioner, advised by competent counsel, made a voluntary and intelligent choice among the various alternatives open to him. His guilty plea is therefore constitutionally valid." He based his decision principally on North Carolina v. Alford, supra, where, he said, the record also contained assertions of innocence by the defendant, but the Court held that the defendant's guilty plea was not rendered invalid by such an assertion.

We think the opinion below takes too narrow a view of Alford. It is true that the Court is very clear in saying that "an express admission of guilt ... is not a constitutional requisite to the imposition of criminal penalty." 400 U.S. at 37, 91 S.Ct. at 167. The Alford Court stated also that "An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime." Id. And the Court upheld the plea of guilty to second degree murder with a maximum penalty of 30 years' imprisonment where conviction following a jury verdict of guilty on a first degree murder charge would have involved either death or a life sentence, the decision being that the plea was not rendered involuntary simply on the basis that it was entered to avoid the possibility of the death penalty.

At the same time, and this is what the court below omitted to take into account, the opinion delivered by Mr. Justice White points out that "Here the State had a strong case of first-degree murder against Alford," and negates a distinction between a plea that refuses to admit commission of a criminal act and a plea containing a protestation of innocence "when, as in the instant case, a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt. Id. (emphasis added). "In view of the strong factual basis for the plea demonstrated by the State and Alford's clearly expressed desire to enter it despite his professed belief in his innocence," the Court held "that the trial judge did not commit constitutional error in accepting it." Id. at 38, 91 S.Ct. at 168 (footnote omitted). An accompanying footnote is strong authority for the proposition that

Because of the importance of protecting the innocent and of insuring that guilty pleas are a product of free and intelligent choice, various state and federal court decisions properly caution that pleas coupled with claims of innocence should not be accepted unless there is a factual basis for the plea ... and until the judge taking the plea has inquired into and sought to resolve the conflict between the waiver of trial and the claim of innocence.²

Id. at 38 n. 10, 91...