Wilkins v. Erickson

• Decision Date: 06 November 1974
• Docket Number: No. 74-1270,74-1270
• Citation: 505 F.2d 761
• Parties: Gordon Lee WILKINS, Petitioner-Appellant, v. Donald R. ERICKSON, Warden, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 761

505 F.2d 761

Gordon Lee WILKINS, Petitioner-Appellant, v. Donald R. ERICKSON, Warden, et al., Respondents-Appellees.

No. 74-1270.

United States Court of Appeals, Ninth Circuit.

Nov. 6, 1974.

David J. Patterson, of Montana Defender Project, missoula, Mont., for appellant.

Robert Woodahl, Atty. Gen., Helena, Mont., for respondents-appellees.

OPINION

Before CHAMBERS and CARTER, Circuit Judges, and LINDBERG, ¹ District Judge.

JAMES M. CARTER, Circuit Judge.

This appeal is from a denial of a petition for a writ of habeas corpus, under 28 U.S.C. 2254, following a state conviction. The district court held an evidentiary hearing.

The case is apparently one of first impression in this circuit and raises the following major questions:

1. Is a guilty plea voluntarily and intelligently made under Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and cases following, if the defendant at the time of pleading guilty is not specifically advised by the State court judge that by pleading guilty he will waive his privilege against self-incrimination, his right to trial by jury, and his right to confront his accusers?

2. Does a post-conviction evidentiary hearing conducted by a federal district court on the question of voluntariness violate the 'spirit' of Boykin?

THE FACTS

Appellant Wilkins, represented by counsel, was brought to trial before a jury in the District Court of Cascade County, Montana, on a charge of murder in the first degree. During the third day of the trial, after twenty-two state witnesses had testified and had been cross-examined. Wilkins requested and received permission to change his plea from not guilty to guilty of murder in the second degree.

Wilkins decided to change his plea following a consultation with his attorneys during which they informed him that the state's next witness would be Miss Linda Matthews. Wilkins' attorneys had learned, and informed Wilkins, that Miss Matthews was prepared to testify that Wilkins was not only present when the crime occurred, but was the person who fatally struck the victim. After being advised of the remote chance of acquittal, the sentences possible under both first and second degree murder, and that the prosecutor probably would not accept a change of plea after Miss Matthews' testimony, Wilkins decided to change his plea.

Prior to accepting Wilkins' change of plea, the State court inquired of him if it was his own free will and wish to change his plea, understanding that he could be sentenced to life in prison. Wilkins answered affirmatively and the plea of guilty was accepted by the court.

Following entry of his guilty plea on September 24, 1969, Wilkins was subsequently sentenced to fifty (50) years in the Montana State Prison. He was later transferred to the South Dakota State Prison pursuant to a contract between Montana and South Dakota for the implementation of the Western Interstate Corrections Compact.

Thereafter, on February 28, 1973, Wilkins filed an application for writ of habeas corpus in the United States District Court for the District of South Dakota, Southern District, alleging that his plea of guilty was not voluntarily and understandingly given because he had not been specifically advised that by pleading guilty he waived his right to trial by jury, his privilege against self-incrimination, and his right to confront his accusers (hereinafter Boykin rights). On March 26, 1973, the court transferred Wilkins' application to the United States District Court for the District of Montana.

The District Court for the District of Montana, following an evidentiary hearing on the allegations raised by Wilkins' application, denied the petition for writ of habeas corpus on December 20, 1973.

The district court decided that the particular language in Boykin, quoted infra, was merely advisory, and concluded that a plea could be voluntary and intelligent without specific articulation of the three Boykin rights, as long as the court, 'passing upon the application for a writ, be able to find from the whole record before it, without the aid of presumptions, that a plea of guilty was voluntarily and intelligently made.' This appeal followed.

I Boykin Does Not Require Articulation of the Three Rights

Wilkins relies upon Boykin v. Alabama, supra. He contends that since he was not personally advised by the trial judge on entry of his plea that by pleading guilty he was waiving (1) his privilege against self-incrimination, (2) his right to trial by jury, and (3) his right to confront his accusers; that he was unaware of the consequences, and that his plea, therefore, mas not voluntarily and intelligently made. Wilkins further argues that the failure of the trial judge to articulate these three rights on the record resulted in a 'silent' record which cannot be supplemented by a post-conviction evidentiary hearing. Accordingly, he wants the opportunity to replead.

Wilkins relies on the following language from Boykin:

'We cannot presume a waiver of these three important federal rights from a silent record. 'What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what a plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought.' 395 U.S. at 243-244, 89 S.Ct. at 1712.

The district court's decision, however, is supported by Supreme Court decisions subsequent to Boykin and several circuits. The rigid interpretation of Boykin urged by Wilkins has not been adopted by the Supreme Court in subsequent decisions on voluntariness of guilty pleas. In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), the Court citing Boykin, upheld held a guilty plea as voluntary and intelligent even though defendant had not been specifically advised of the three rights discussed in Boykin. The Brady Court clarified Boykin by stating, 'the new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily.' 397 U.S. at 747-748 fn. 4, 90 S.Ct. at 1468. In North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970), the Court stated that in determining the validity of guilty pleas the 'standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.' Specific articulation of the Boykin rights is not the sine qua non of a valid guilty plea.

Other circuits have considered the application of Boykin to state prisoner petitions and have held in accordance with Brady v. United States, supra. McChesney v. Henderson, 482 F.2d 1101, 1106 (5 Cir. 1973) (The court alternately held that a subsequent state evidentiary hearing could be considered); Wade v. Coiner, 468 F.2d 1059, 1060 (4 Cir. 1972). Cf. Todd v. Lockhart, 490 F.2d 626, 627 (8 Cir. 1974) (A subsequent state evidentiary hearing failed to decide the question of voluntariness. On appeal from denial of a writ of habeas corpus by the district court, its judgment was reversed).

The Ninth Circuit has apparently not passed on the question. Accordingly, we hold that Boykin does not require specific articulation of the above mentioned three rights in a state proceeding. Brady v. United States, 397 U.S. at 747-748, 90 S.Ct. 1463 and cases supra.

II Boykin is Limited to its Facts and is Distinguished on its Facts from the Present Case

Furthermore, contrary to Wilkins' contention, the factual situation in Boykin was totally dissimilar to the factual situation here.

In Boykin the record reflected only that upon arraignment on five indictments of robbery, Boykin pleaded guilty to all five indictments. 'So far as the record shows, the judge asked no questions of petitioner, concerning his plea, and petitioner did not address the court.' 395 U.S. at 239, 89 S.Ct. at 1710. Not only was the trial record silent, but neither the state nor federal courts had held an evidentiary hearing on the plea. The precise holding of Boykin was that there was reversible error 'because the record does not disclose that the defendant voluntarily and understandingly entered his pleas of guilty.' 395 U.S. at 244, 89 S.Ct. at 1713. The opposite situation is presented in the instant case.

The...