Williams v. Smith, 423
| Decision Date | 16 January 1979 |
| Docket Number | No. 423,D,423 |
| Citation | 591 F.2d 169 |
| Parties | Joseph A. WILLIAMS, Petitioner-Appellant, v. Harold J. SMITH, Superintendent, Attica Correctional Facility, Respondent-Appellee. ocket 78-2097. |
| Court | U.S. Court of Appeals — Second Circuit |
Rolf Nils Olsen, Jr., Buffalo, N. Y. (Stuart Siris and Kathy K. Priest, Third Year Law Students, Faculty of Law and Jurisprudence, State University of New York, Buffalo, N. Y., on brief), for petitioner-appellant.
Gale D. Berg, Deputy Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen. of the State of New York and Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, on brief), for respondent-appellee.
Before LUMBARD, MOORE and GURFEIN, Circuit Judges.
Joseph Williams appeals from an order of Judge Curtin of the Western District denying his petition for a writ of habeas corpus. Williams contends that his guilty plea in a state criminal prosecution for possession of narcotics was invalid because it was entered, as a result of sentencing misinformation, without full knowledge of its consequences. Since we agree with Judge Curtin that Williams, though misinformed as to the consequences of his plea, would have pleaded guilty even if he had been given accurate information, we affirm the denial of the writ.
Petitioner was arrested in Buffalo, New York on July 26, 1972 after a search of the premises at which he rented an apartment uncovered 51 tinfoil wrapped packages of cocaine. 1 Subsequently he was indicted for possession of a dangerous drug in the fourth degree, a Class D Felony under New York law with a maximum sentence of seven years imprisonment.
Unbeknownst to Williams or his court-appointed attorney, the indictment on the felony charge placed Williams in jeopardy, due to his prior criminal record, 2 of a term of imprisonment far beyond the normal maximum. Under the applicable provisions of New York law, a convicted felon with at least two prior felony convictions may, if found by the sentencing judge to be in need of extended incarceration and lifetime supervision, be sentenced as a persistent felony offender with a minimum term of 15 years and a maximum of life. 3
In subsequent plea negotiations with the district attorney's office, Williams' attorney, who remained unaware of the persistent offender statute, tentatively agreed that Williams would plead guilty to possession of a dangerous drug in the fifth degree, a Class E Felony with a maximum sentence of four years imprisonment. Though there is some question as to whether the assistant district attorney assigned to Williams' case was aware that the Class E Felony conviction would make Williams eligible for sentencing as a persistent felony offender, he did not mention the possibility of a sentence greater than the normal four year maximum. Williams' attorney related to his client that he faced a four year maximum sentence if he agreed to plead guilty and Williams eventually assented.
A plea hearing was held before Justice Marshall of the New York State Supreme Court on June 22, 1973. For reasons that remain unexplained, Justice Marshall did not have the petitioner's record before him and thus had no knowledge of Williams' prior felony convictions. Consequently, while inquiring as to whether Williams understood the consequences of his plea, Justice Marshall stated that the maximum sentence "in this case" was four years imprisonment.
Justice Marshall did not learn of Williams' criminal record until August of 1973, when he received a probation report on Williams' background. He promptly notified Williams' attorney that a hearing would be held to determine whether Williams would be treated as a persistent felony offender.
Williams' attorney relayed this information to his client in a letter dated August 10, 1973. The letter indicated that Williams faced a term of one to four years if sentenced simply on the Class E possession charge, or a fifteen year to life term if sentenced as a persistent felony offender. Though Williams' attorney stated that he had just become aware of the "drastic possibility" of persistent offender sentencing, he did not suggest, either in the letter or at any other time before Williams was actually sentenced, that Williams might move to withdraw his guilty plea in light of the earlier misinformation. Williams' attorney has since testified that he was not aware at the time that this option was available.
At the persistent offender hearing on September 21, 1973, Williams' attorney urged his client's age, poor health and contrition as factors mitigating against his treatment as a persistent felony offender. 4 Williams himself stated:
Justice Marshall was unmoved, however. Noting Williams' "persistent and aggravated criminal record," he found the petitioner to be a persistent felony offender and sentenced him to a term of 15 years to life.
In his appeal to the state courts, Williams contended that his conviction was invalid since Justice Marshall had failed to advise him fully as to the consequences of his plea. Alternatively, he argued that the court's representation as to the maximum sentence constituted a promise that should be enforced by a remand for sentencing without application of the persistent offender statute. The Appellate Division, 4th Dept., rejected both arguments. People v. Williams, 47 A.D.2d 989, 366 N.Y.S.2d 713 (1975). Noting that Williams had made no effort to withdraw his plea even when informed of the possible application of the persistent offender statute, it concluded that it was
"clear that when defendant appeared for sentence he was not relying on the representation made by the court when his plea was taken as to the maximum sentence that could be imposed by the court." Id. 366 N.Y.S.2d at 714.
Subsequently, Williams was denied leave to appeal to the New York Court of Appeals.
Having exhausted his state remedies as required by 28 U.S.C. § 2254(b), Williams filed his petition for a writ of habeas corpus in January of 1976. He again argued that his plea was invalid because entered without full knowledge as to its consequences due to the sentencing misinformation. 5
After an evidentiary hearing at which Williams, his attorney and the assistant district attorney testified, Judge Curtin found that Williams' guilty plea, though entered without full knowledge of its consequences, was voluntary In fact, in that it would not have been different even if Williams had received accurate information. Accordingly he ruled that despite certain deficiencies in the procedure by which he pleaded and was sentenced, Williams' guilty plea was not constitutionally invalid.
There can be little question as to the seriousness of the misrepresentations made to Williams by his attorney, the assistant district attorney and the state court regarding his maximum possible sentence. Since McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), failure to comply with Fed.R.Cr.P. 11, which directs federal trial courts to address a defendant personally and determine whether he understands the consequences of his plea, requires automatic vacatur of a federal guilty plea. This Court, in Jones v. United States, 440 F.2d 466 (2d Cir. 1971), held that the maximum possible sentence is one of the consequences that must be brought to the attention of the defendant, and Rule 11 was amended in 1975 to make this requirement explicit.
The strictures of Rule 11, however, do not apply to state criminal proceedings, and, as Judge Curtin correctly observed, the test in this circuit for determining the constitutional validity of a state court guilty plea where the defendant has been given sentencing misinformation is whether the defendant was aware of actual sentencing possibilities, and, if not, whether accurate information would have made any difference in his decision to enter a plea. Caputo v. Henderson, 541 F.2d 979 (2nd Cir. 1976); Kelleher v. Henderson, 531 F.2d 78 (2nd Cir. 1976). 6 Where government error is responsible for the misinformation, the government carries the burden of proof on the issue of reliance. Caputo v. Henderson, supra.
Addressing the first part of that test, Judge Curtin found, and it is undisputed, that Williams was not in...
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