United States v. LaVallee

• Decision Date: 14 July 1965
• Docket Number: No. 478,Docket 29561.,478
• Citation: 348 F.2d 373
• Parties: UNITED STATES of America ex rel. John McGRATH, Petitioner-Appellant, v. J. E. LaVALLEE, Warden of Clinton Prison, Dannemora, New York, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

348 F.2d 373 (1965)

UNITED STATES of America ex rel. John McGRATH, Petitioner-Appellant, v. J. E. LaVALLEE, Warden of Clinton Prison, Dannemora, New York, Respondent-Appellee.

No. 478, Docket 29561.

United States Court of Appeals Second Circuit.

Argued May 25, 1965.

Decided July 14, 1965.

Charles R. Brainard, New York City (Roger W. Robinson, New York City, on the brief), for petitioner-appellant.

Michael H. Rauch, Deputy Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for respondent-appellee.

Before LUMBARD, Chief Judge, and SMITH and KAUFMAN, Circuit Judges.

KAUFMAN, Circuit Judge.

The appellant John McGrath, presently serving a state court recidivist sentence of 29 to 30 years' imprisonment based upon a plea of guilty to second degree robbery, challenges the constitutionality of his detention, contending that the plea was induced by improper mental or psychological coercion and entered without fair knowledge of the alternatives. When the case was here before, 319 F.2d 308 (2 Cir. 1963), we remanded for a hearing to assure the accuracy and authenticity of the stenographic transcript of the in camera conference in which the appellant decided to make the purportedly vitiated plea. Following our mandate, the District Court, after a full evidentiary hearing, found that the record of the conference was accurate and that McGrath failed to meet the burden of demonstrating that the guilty plea was the product of overreaching or duress. We affirm.

Although the basic facts were fully delineated in the three separate opinions written on the prior appeal, restatement is warranted in light of the complete — and now uncontested — record before us. McGrath was indicted, on October 20, 1953, for first degree robbery, petit larceny, second degree assault, and possession of a dangerous weapon. Together with an unapprehended cohort, he was charged with robbing a liquor store attendant of $44.00 and beating him over the head with a loaded revolver and a wine bottle. At the time McGrath, who was 25 years old, already had a long criminal record, commencing in early adolescence.

Both at arraignment and after his indictment, appellant pleaded not guilty to the robbery charge. Before the trial, however, the Queens County District Attorney expressed a willingness to recommend that the court accept a plea to a reduced charge of second degree robbery, to cover all counts of the indictment. McGrath's counsel, through whom this information was transmitted, advised his client that acceptance would reduce the multiple-offender sentencing range from 15 to 60 years (for a first degree conviction) to 7½ to 30 years. N.Y.Penal Law, McKinney's Consol.Laws, c. 40, §§ 2125, 2127, 1941. The hearing before Judge Brennan revealed that McGrath was willing to accept the reduced plea only if accompanied by a written commitment as to the sentence — a condition precedent which could not be met.

After rejecting this proffered recommendation, appellant's retained attorney, on the day set for trial, answered upon the call of the calendar that his client was ready to proceed. But following a side-bar conference, in which the experienced trial judge, Hon. William B. Groat, was advised of McGrath's refusal to follow his counsel's advice and accept the prosecution's offer to recommend a plea to a lesser offense, the parties adjourned to the latter's chambers to recanvass the alternatives open to the defendant.

The stenographic transcript of that crucial discussion in chambers — attended by the judge, McGrath and his attorney, the Assistant District Attorney, the court stenographer and at least one court attendant — is now accepted as trustworthy and reveals the following: At the outset of the conference, the trial judge commented that McGrath had a long record and that his chances of acquittal were "not too good." But, "if you want a trial," he added, "you will certainly get a fair trial." Although McGrath would be entitled to no consideration if convicted and might have to be sent away "for the rest of his life," the judge reiterated on six occasions, that he was making "no promises as to your sentence." "I am not telling you what you should do or what you should not do," he painstakingly explained, "I am merely pointing out to you what you face." The judge reminded the defendant that a plea to second degree robbery, as offered by the State, would permit "some opportunity of receiving a shorter sentence," if he manifested a desire to "start a new life." In contrast, "if I sentence you after a conviction of robbery in the first degree, you are going to be away until you are an old man." The judge continued to emphasize, however, that "I am not telling you what to do, son."

At this point in the discussion, defense counsel interjected his considered opinion that there was no chance of acquittal and advised the court that the mandatory minimum sentence for a multiple offender convicted of first degree robbery would be 15 years. The transcript of the chambers' conference reveals that McGrath then agreed to accept the prosecution's offer and the parties returned to the courtroom.

There, the defendant formally withdrew his not guilty plea, but not until after he was advised by the judge, on four occasions, that as a consequence of the changed plea he would face "a long prison term." The change was also preceded by McGrath's affirmative response to the judge's inquiry as to whether he realized "that no promise has been made to you, your attorney, or anyone else in your behalf concerning any sentence or punishment that might be meted out to you should such plea be accepted." Defense counsel then commended the judge for his fairness in considering the reduced plea and expressed his gratitude after the plea was entered and accepted.

All of the problems presented on this appeal were triggered some two and one-half months later, in February 1954, when McGrath was sentenced to 29-30 years' imprisonment. Before imposing this punishment, the judge indicated he was influenced by the accused's unsavory criminal record, see 319 F.2d at 311 n. 1, specifically detailed in a probation report very recently made available to him, but not completed and transmitted to him before he accepted the guilty plea. Indeed, the judge expressed regret, at the time of sentencing, that he had accepted the plea to the lesser offense and indicated that appellant's exceptionally bad record called for a prison term not materially below the statutory maximum.

On direct appeal in the state courts, McGrath challenged the excessiveness of the sentence, but without avail, 284 App. Div. 908, 135 N.Y.S.2d 654 (1954). Six years later, he sought a writ of coram nobis on the ground that he involuntarily pleaded guilty. The Queens County Court denied the application without a hearing and this determination was unanimously affirmed on the merits. People v. McGrath, 14 A.D.2d 926 (1961). Leave to appeal to the state's highest tribunal was denied and the United States Supreme Court declined to grant certiorari, 369 U.S. 808, 82 S.Ct. 653, 7 L.Ed.2d 555 (1962). The instant petition for a federal writ of habeas corpus then followed. Initially, it was denied by the district court but we reversed that order for failure to hold the evidentiary hearing necessitated — "only by the barest of margins," 319 F.2d at 315 — by appellant's challenge to the authenticity of the stenographic transcript of the in camera conference.

I.

Although the scope of the hearing on remand might well have been restricted to that single, narrow issue, we suggested a broader inquiry, intimating that the testimony of all participants might "well unearth facts as to the surrounding circumstances and unrecorded comments and gestures which point to" a finding of involuntariness, 319 F.2d at 314. Although recognizing that the hearing was "principally directed to the accuracy of the transcript of the proceedings in the judge's chambers," the District Court, responding to our invitation, upon remand "allowed, in a broad manner, evidence which went to the determination as to whether or not McGrath's guilty plea was the product of judicial coercion." The proceeding conducted by Judge Brennan was fair and complete.

Initially, he found that the appellant failed to meet the burden imposed upon him in questioning the genuineness of the transcript, rejecting as "incredible" McGrath's testimony that the official court reporter never operated his stenographic machine during the allegedly off-the-record conference. The challenge to the transcript, pressed so vigorously in McGrath's petition for the writ, has been abandoned on this appeal.

II.

Turning to the basic question of the validity of the guilty plea, we find — after reviewing the transcript of the in camera conference as well as the full minutes of the hearing on remand — that there is no substance to the claim that the plea was involuntarily entered. In doing so, we are mindful of the governing standard: If a plea of guilty was the product of coercion, either mental or physical, or was unfairly obtained or given through ignorance, fear or inadvertence, the judgment which rests upon it is void and subject to collateral attack. United States ex rel. McGrath v. LaVallee, 319 F.2d at 311. "A plea of guilty," the Supreme Court long ago admonished, "shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences." Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927). See also Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962). Applying these precepts, after observing McGrath and considering his experience, education and representation, the District Court found that appellant had not borne the burden of showing that the plea of guilty was tainted. Judge Brennan's finding that the plea...