Wilson v. Rose, 20250.

• Decision Date: 12 September 1966
• Docket Number: No. 20250.,20250.
• Citation: 366 F.2d 611
• Parties: Lawrence E. WILSON, Warden San Quentin State Prison, Appellant, v. Glenn ROSE, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

366 F.2d 611 (1966)

Lawrence E. WILSON, Warden San Quentin State Prison, Appellant, v. Glenn ROSE, Appellee.

No. 20250.

United States Court of Appeals Ninth Circuit.

September 12, 1966.

Thomas C. Lynch, Atty. Gen. of Cal., Robt. R. Granucci, Michael J. Phelan, Deputy Attys. Gen., San Francisco, Cal., for appellant.

Lin B. Densmore, San Francisco, Cal., for appellee.

Before CHAMBERS, KOELSCH and BROWNING, Circuit Judges.

BROWNING, Circuit Judge, announced the judgment of the Court in an opinion which sets forth his individual views:

The Warden of San Quentin Penitentiary appeals from an order of the district court setting aside appellee's State conviction on the ground that it was obtained in violation of the Due Process Clause of the Fourteenth Amendment. We affirm.

Appellee's petition for habeas corpus challenged his conviction upon the ground that he did not have effective assistance of counsel when he entered his guilty plea, and did not understand the nature of the charge or the consequences of the plea. In Rose v. Dickson, 327 F.2d 27 (9th Cir., 1964) we affirmed the denial of an earlier petition raising the same issues because they had not been presented to the California courts. Appellee then filed a petition in the State court specifically raising these issues, and the State court denied relief after an evidentiary hearing. In re Rose, 62 Cal.2d 384, 42 Cal.Rptr. 236, 398 P.2d 428 (1965).

The State's criminal charges against appellee arose out of a single incident involving appellee's "girlfriend." The State alleged three offenses: kidnapping (Calif. Penal Code § 207), assault by means of force likely to produce great bodily injury (§ 245), and oral copulation (§ 288a), carrying maximum penalties of twenty-five years, ten years, and fifteen years, respectively. State statutes provide that probation is not available to a persons convicted of an offense involving wilful infliction of great bodily injury (§ 1203), nor to a person convicted of oral copulation where force, duress, or threat of great bodily harm is involved (§ 288a).

Appellee plead not guilty, and a trial date was set. When his case was called for trial, appellee withdrew his prior pleas and plead guilty to the section 207 and section 245 charges. The State dismissed the section 288a charge. The State court denied probation and sentenced appellee to the terms provided by sections 207 and 245, the terms of imprisonment to run concurrently.

The attorney retained by appellee to represent him prior to and at the time of plea, testified on appellee's behalf at the State habeas corpus hearing. The State stipulated that the attorney "testified truthfully, to the best of his recollection and belief." His testimony was not contradicted.

Appellee's retained attorney testified that he concluded that if appellee plead guilty to the sections 207 and 245 charges the section 288a charge would be dismissed and appellee would be placed on probation, and that he so advised appellee. As he testified, "My statement to him was that he would get probation,"; indeed, the attorney testified, he "guaranteed" it. Appellee expressed a wish to employ and consult another attorney before making a decision; but his retained counsel advised him not to do so because "he was going to get probation."¹

Appellee's attorney did not tell appellee that it was possible that probation might not be granted, and that appellee's guilty plea might result in imprisonment; he testified, "It never occurred to me." He did not tell appellee that probation was prohibited by statute where the offense involved wilful infliction of great bodily harm; he testified that he was not aware of this provision. He did not advise appellee of the seriousness of the charges against appellee or tell appellee what the possible sentence might be; he testified that he had not read the statutes, and did not know what punishment they provided.

Appellee told his attorney that he believed himself innocent of the charges against him, and twice informed his counsel of his desire to plead not guilty. Nevertheless, appellee's attorney did not discuss possible defenses with appellee;² indeed, he did not discuss the facts of the case with appellee at all. Appellee's attorney testified that he listened to appellee's story and to the complaining witness' testimony at the preliminary examination (which appellee told him was not true), but made no effort to investigate either the factual circumstances of the case or the applicable law; he interviewed no witnesses; he did not examine the police reports, or the complaining witness' prior statements to police.

The district court summarized the evidence as follows:

"Throughout all this period * * * counsel for the accused failed in any real sense to advise and consult with the accused; failed to discuss possible defenses or the facts of the case with the accused; failed to pursue any discovery devices available; failed to investigate the case or interview witnesses; and failed to advise the accused of the nature and consequences of a guilty plea.³ Counsel not only failed to advise the accused that a guilty plea might result in a prison sentence, but unequivocally assured the accused that he would be granted probation."

The district court held that appellee's retained counsel "totally failed to present the cause of the accused in any fundamental respect."⁴ The court concluded that appellee "was not accorded due process of law in the State trial court. He was denied fundamental fairness in the disposition of his case. This conviction which has already resulted in incarceration for a period of seven years should not be permitted to stand."

Appellee was entitled to the aid of counsel in determining his plea. "The decision to plead guilty is a decision to allow a judgment of conviction to be entered without a hearing — a decision which is irrevocable and which forecloses any possibility of establishing innocence. * * * The accused needs the aid of counsel lest he be the victim of overzealous prosecutors, of the law's complexity, or of his own ignorance or bewilderment." Williams v. Kaiser, 323 U.S. 471, 475-476, 65 S.Ct. 363, 89 L.Ed. 398 (1945). See also Palmer v. Ashe, 342 U.S. 134, 72 S.Ct. 191, 96 L.Ed. 154 (1951); Von Moltke v. Gillies, 332 U.S. 708, 720-721, 68 S.Ct. 316, 92 L.Ed. 309 (1948); Hawk v. Olson, 326 U.S. 271, 276, 66 S.Ct. 116, 90 L.Ed. 61 (1945); Jones v. Cunningham, 313 F.2d 347, 352-353 (4th Cir. 1963). Cf. Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961); White v. State of Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963). And formal compliance was not enough; appellee was entitled to reasonably adequate professional aid. Von Moltke v. Gillies, supra, 332 U.S. at 721-722, 68 S.Ct. 316; Hawk v. Olson, supra, 326 U.S. at 274, 66 S.Ct. 116; Jones v. Cunningham, supra. Comment, 112 U. of Pa.L.Rev. 865, 887-89 (1964). Cf. Brubaker v. Dickson, 310 F.2d 30, 37 (9th Cir., 1962).

It did not comport with minimal standards of professional service for counsel to advise appellee to plead guilty on the ground that probation was "guaranteed" without any assurance that probation would in fact be granted, without checking the statute which may have prevented probation for one of the offenses to which a guilty plea was advised, without any effort to determine what sentence was possible if probation were denied, and without any inquiry, legal or factual, into the merits of appellee's assertions of innocence. "Prior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered." Von Moltke v. Gillies, 332 U.S. 708, 721, 68 S.Ct. 316, 322 (1948).⁵ (Emphasis added.)

There is a suggestion that an agreement to plead guilty to the sections 207 and 245 charges in exchange for the dismissal of the section 288a charge was within the broad range of permissible professional choice, even though shown by the ultimate event to have been ill-advised. In re Rose, 62 Cal.2d 384, 42 Cal. Rptr. 236, 398 P.2d 428 (1965). But a plea of guilty to the section 245 charge could have barred probation as much as a plea of guilty to the section 288a charge, and the maximum sentence on the section 207 charge was twenty-five years, whereas the maximum sentence under section 288a was fifteen years. Moreover, the choice made by appellee's counsel was not based upon a weighing of these risks. It rested upon his personal assumption that probation was "sure."

It is undisputed that appellee himself was never consulted as to the supposed strategy. In the course of the State habeas corpus hearing the presiding officer asked appellee's counsel: "You didn't discuss the relative merits of taking a calculated risk that he might, or could be denied probation on the other two counts, but that it would be worth it, at least, if he gets the 288a dispensement?" Appellee's counsel answered, "No, I did not."

The aid of counsel in entering a guilty plea may of course be waived. But "to be valid such waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter." Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 323 (1948). All other matters aside, it is uncontradicted on the record that appellee was "guaranteed" that the product of his plea would be probation, and was not advised, either by counsel or by the court, that his plea would expose him to imprisonment, possibly for as long as thirty-five years.⁶

The State argues that even though appellee did not have effective assistance of counsel, his conviction must nonetheless stand, first, because...