Charles Dean Lesley v. State of Oklahoma and Ray H. Page, Warden, Oklahoma State Penitentiary , 407 F.2d 543 ( 1969 )

BREITENSTEIN, Circuit Judge.

This is an appeal from the denial of habeas corpus relief. In 1950, an Oklahoma state court sentenced the appellant to a term of 40 years on his plea of guilty of robbery with a firearm. The question is the voluntariness of that plea. State remedies have been exhausted. See Lesley v. Page, Okl.Cr.App., 430 P.2d 336. The federal district court held an evidentiary hearing, found that the appellant was advised of his rights to counsel, and concluded that there was no constitutional infirmity in the state proceedings.

At the time of the offense and sentence, appellant was 19 years of age and had worked as a broom corn cutter. He had an eighth grade education. Nothing in the record indicates that he had any prior experience with the courts. He was arraigned and pleaded guilty seven days after his arrest. During that time he had been in jail and had seen no lawyer except the prosecuting attorney.

No transcript of the arraignment proceedings has been preserved. Appellant testified that he did not have a lawyer and did not know that the court would appoint one for him. He said that the prosecuting attorney told him that on a plea of guilty, he, the prosecutor, would recommend a sentence of 40 years; that he was scared; and that he thought it best to accept a sure thing than risk a possible greater sentence. The penalty in Oklahoma for robbery with a firearm is death or imprisonment for not less than five years. See 21 Okl.St.Ann. § 801.

The clerk of the state court testified that the court docket showed that the appellant and a co-defendant were informed of their statutory right to have an attorney; that they waived those rights and pleaded guilty; and that on the recommendation of the county attorney each received a 40-year sentence.

The sentencing judge testified that he was “sure” that he advised appellant of his rights, including a right to counsel. He said:

“I remember going into some detail with them about the circumstances, and so on, because of their age and their obvious demeanor. I was afraid that somebody had just frightened the living daylights out of them and told them a lot of things that were not true. I went into this pretty thoroughly.”

The judge further testified that the prosecutor recommended a 40-year term. When asked if he had told the appellant that he would receive a 40-year sentence on a guilty plea, the judge answered:

“I sure did in this case, you bet I did, because I couldn’t even understand why they would agree with the county attorney to take 40 years.”

The state argues that the finding of the district judge that the plea was voluntary is a fact finding which is supported by substantial evidence and which is binding on an appellate court. The difficulty is that the district court made a general finding and said nothing about the plea bargaining with an ignorant, youthful defendant who was not represented by counsel.

We have recognized that negotiations between prosecutors and those accused of crimes are valuable in the disposition of criminal litigation “when conducted fairly, and when the rights of the accused are fully protected.” See Corn v. Oklahoma, 10 Cir., 394 F.2d 478, 479, n. 1; and see Shelton v. United States, 5 Cir., 242 F.2d 101, and 246 F.2d 571, reversed 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579. In the ease at bar the district court made no finding that the plea bargaining was done fairly and that the rights of the accused were fully protected. On the record before us such finding could not be made. The state judge said frankly that he could not “understand” why appellant would agree to a 40-year sentence. Yet he went ahead and imposed that sentence. The fact that the prosecutor kept his end of the bargain and recommended a sentence of 40 years does not change the situation. The facts are that, in the words of the state judge, the appellant was “frightened” and had made a bargain which the judge could not “understand.” The guilty plea was tainted by an overreaching of the appellant and it cannot stand.

The judgment is reversed and the ease is remanded to the United States District Court with directions that the case be held in abeyance for a period of 120 days from the date of the issuance of the mandate. If within that time the state takes corrective measures that protect the appellant’s federal constitutional rights, the petition for habeas corpus shall be dismissed. If the state does not take such measures, the appellant shall be released at the end of 120 days.