United States of America Ex Rel. Charles F. Scott v. Vincent R. Mancusi, Warden, Attica Prison, Attica, New York , 429 F.2d 104 ( 1970 )

LUMBARD, Chief Judge:

The State of New York appeals from an order of the Western District which granted relator Charles Scott’s petition for a writ of habeas corpus after a hearing. Scott claimed that his conviction, entered on a plea of guilty to manslaughter in the second degree, and his subsequent sentence to 7% to 15 years in Attica State Prison, was invalid because (1) his plea was involuntary as it was induced by the assurances given to him by his own counsel that he would be sent to Washington, D. C.; (2) his plea was involuntary as his counsel had led him to believe that the plea could be withdrawn at any time before sentence; and (3) it was error for the trial judge not to accept his application to withdraw the plea before sentence when there was no apparent prejudice to the state. We find that the plea was voluntary and that there was no abuse of discretion. On the facts shown we believe there was insufficient evidence as a matter of law to support the conclusion of the district court that the plea was involuntary, and that the determination to the contrary was clearly erroneous. We reverse and dismiss the petition.

Scott was indicted in Erie County on November 30, 1962, charged with first degree manslaughter. Scott had fatally stabbed Arthur Lewis, aged 41, in a barroom brawl early in the morning of October 2, 1962. At the time, he was on parole, from a conviction in Washington, D. C., where on January 21, 1952, he had been convicted of second degree murder for the slaying of his paramour, and had been sentenced to 15 years to life. The stabbing in this case took place in a bar and it was apparently not disputed that Scott actually killed Lewis, the only issue being whether or not the killing was in self-defense. Scott had a prior conviction, was a parole violator, and whatever the outcome of the New York trial he was certain to be returned to Washington to serve more time. Consequently, counsel had good and sufficient reason to feel that Scott should plead guilty to a lesser offense and not stand trial.

On March 4, 1963, Scott’s attorney, Herald P. Fahringer, Esq., met with the assistant district attorney and the trial judge, Frederick M. Marshall, and discussed the possibility of Scott pleading guilty to a reduced charge of manslaughter in the second degree. Counsel wanted the judge to suspend the sentence in New York and return Scott to Washington, D. C., as a parole violator. The judge, refusing to make any promises, said he would consider a suspended sentence if he could be assured that Scott would be required to serve at least five years upon his return to Washington. Counsel called the parole officials in Washington and a letter was subsequently sent by the Board of Parole stating that it would not consider any application for release until Scott had served at least two years and that there was “little possibility’’ that the Board would entertain such an application for at least five years.

The letter had been mailed, but not received when Scott and his counsel came before Judge Marshall on March 13, 1963. Scott then withdrew his earlier plea of not guilty to first degree manslaughter and entered a plea of guilty to second degree manslaughter. The court, after confirming Scott’s desire to be near his family in Washington, then said:

“Your attorney has indicated to me that he’s getting some correspondence from the correction or prison officials in Washington, D. C., which will indicate to the court what action they are going to take and he’s going to submit that to me and after I have had this documentary evidence I will then have to make a determination as to whether or not I can send you back or whether you should go to Attica here in this state, are you aware of that ?”

Scott responded affirmatively and then engaged in the following colloquy with the court:

The Court: In other words, I am not telling you now and I have not told your attorney or the assistant district attorney that you are under all conditions, under all circumstances going back to Washington, D. C. That might not happen.

The Defendant: Yes.

The Court: You are aware of that?

The Defendant: Yes, sir.

The Court: It might well be, after reviewing the papers and probation investigation that I might feel that the interest of justice might be served by your being sentenced to serve your term here in New York State.

The Defendant: Yes.

The Court: Now, with that explanation do you want to say anything?

The Defendant: Well, I don’t guess I have anything to say.

The Court: Has everything I said been understandable to you ?

The Defendant: It’s been understandable to me.

The Court: Does it fairly and accurately represent the discussions that you have had with your lawyer and your understanding?

The Defendant: Yes, sir. But may I say this ?

The Court: Yes.

The Defendant: I don’t think anyone is justified in taking a life but in this particular incident I was reluctant to enter a plea, sir, but I have been advised by my legal counsel and I think he was in better position to know than I.

The Court: Has any undue influence—

The Defendant: No, sir, none whatsoever.

The Court: —been exercised upon your will?

The Defendant: None whatsoever.

The Court: Are you being forced to do this?

The Defendant: No.

The Court: This entering of this plea is your—

The Defendant: My decision.

The Court: And your conclusion that it’s the proper way out of the whole thing?

The Defendant: Yes, I would say that.

The Court: All right, now, you stand charged with manslaughter in the 2nd degree. How do you plead, sir?

The Defendant: I plead guilty, sir.

When Scott and his attorney appeared before Judge Marshall on April 1, 1963, for sentence, Scott asked that he be allowed to withdraw his plea. He had just had a conversation with his attorney, and apparently Scott had been given the impression that the judge was “somewhat cold” and had a “cold attitude” that day. He had asked his counsel whether it was “guaranteed” that he would be sent to Washington, and counsel responded that there were no “guarantees.” Judge Marshall refused to allow the plea to be withdrawn, stating:

“If there is some substantial reason as to why he should be permitted to withdraw his plea I will permit it. If it’s really because he’s afraid he might go to Attica rather than Washington, D. C. and serve his time there, I’m not going to permit him to withdraw his plea under those circumstances.”

Scott was then sentenced to 7% to 15 years in Attica State Prison. The next day, April 2, 1963, Scott’s attorney wrote to Judge Marshall requesting him to reconsider his denial of the application to withdraw the plea, pointing out that he had “prevailed upon [Scott] with some vigor to enter a plea of guilty because I felt he would be sent to Washington.”

The district court found that there were no promises made by the trial judge or the prosecuting attorney which were not kept. On March 4, 1963, there was only minimal participation by the assistant district attorney and the examination which took place at the time the plea was taken was a clear indication to Scott that no promises had been made by anyone. We agree with the district court that “there is no evidence to support” the claim that promises had been made by the trial judge or prosecuting attorney.

However, the district court also found that the petitioner’s retained counsel made misrepresentations to the defendant concerning the sentence which the petitioner would receive if he pleaded guilty, that the petitioner relied upon these misrepresentations in pleading and, therefore, his plea of guilty was not voluntarily made. We believe these findings to be clearly erroneous as the evidence presented by Scott is insufficient to show any misrepresentations.

A guilty plea, entered in either a state or federal court, must be voluntarily and knowingly made. Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Waley v. Johnston, 316 U.S. 101, 62 S. Ct. 694, 86 L.Ed. 1302 (1942); Kercheval v. United States, 274 U.S. 220, 47 S. Ct. 582, 71 L.Ed. 1009 (1927). Further, a conviction which is based upon an involuntary plea of guilty is inconsistent with due process of law and is subject to collateral attack by federal habeas corpus. United States ex rel. Richardson v. McMann, 408 F.2d 48, 51-52 (2d Cir. 1969); United States ex rel. McGrath v. La Valle, 319 F.2d 308 (2d Cir. 1963).

Scott’s first claim is that his plea was involuntary because his counsel had told him he would be sent to Washington, if he entered the plea. There is no evidence, however, that Scott was told by his counsel that he would definitely be sent to Washington if he entered his plea, although counsel did testify at the hearings that he had told Scott that he “felt sure” that he would be sent to Washington. It is apparent that no “guarantees” were made by counsel to Scott. Furthermore, the pleading colloquy which occurred in court demonstrates that Scott knew the matter was still far from settled.

The representations made by counsel to Scott were couched in the language of hope rather than of promise and were merely estimates made in good faith as to what he thought would result when the letter from the parole authorities was received. It is well settled in this circuit that “[A]n erroneous sentence estimate by defense counsel does not render a plea involuntary.” United States ex rel. Bullock v. Warden, Westfield State Farm for Women, 408 F.2d 1326, 1330 (2d Cir. 1969); United States v. Parrino, 212 F.2d 919 (2d Cir. 1954); see United States v. Lester, 247 F.2d 496, 501 (2d Cir. 1957) indicating that “[T]he fact that the defendant may have had expectations that his plea would result in leniency is not sufficient, in the absence of evidence that the expectation was induced by the government, to justify withdrawal of the plea.” United States ex rel. McGrath, supra; United States v. Lowe, 173 F.2d 346 (2d Cir.), cert. denied, 337 U.S. 944, 69 S.Ct. 1499, 93 L.Ed. 1747 (1949).

Scott next alleges that counsel had told him that he could withdraw his plea before he was sentenced. Although the evidence is not clear as to exactly what counsel told Scott and it appears that counsel never directly told him that he had an absolute right to withdraw the plea for any reason whatsoever, there is testimony indicating that Scott could have believed that he could withdraw his plea. The question is, however, how much weight to attach to this testimony and claim arising for the first time almost 5y2 years after the events in dispute.

Counsel’s statement that the plea could be withdrawn is certainly contrary to New York law, which allows a plea to be withdrawn before sentence only in the discretion of the trial judge. N.Y. Code of Cr.Proc. § 337 (McKinney). However, this misstatement of law is not so serious as to result in the plea being involuntary. Although the district court found that Scott relied heavily on the advice of counsel in pleading, which advice included both the suspended sentence representation and the representation that he had the right to withdraw his plea, it is apparent that the major impetus behind Scott’s plea was his desire to be sent to Washington and not reliance on the fact that the plea could be withdrawn.

It is important to note in this regard that the allegation that counsel misstated the law was not made in Scott’s original petition sworn to February 13, 1968. The focus of the petition is the claim that the trial judge had indicated that he would be sent to Washington, D. C. The claim regarding the misstatement of law was apparently made for the first time at the hearing. This claim is conspicuously absent from the petition, the correspondence between Scott and his counsel,¹ and the letter of counsel to Judge Marshall on April 2, 1963.² Scott was aware of the New York statute for he argues extensively in his petition that the trial judge has abused his discretion, but he never once makes the argument that he had been misled into believing that he had an absolute right to withdraw his plea.³ Although the argument would perhaps have been a strong one if made at the time the request for withdrawal was made, coming now, 5% years after the event at a time when there is every reason to recall past conversations in a favorable light, it should be accorded little weight. There is no doubt that the central and motivating factor behind the plea was Scott’s desire to be sent to Washington, and his disappointment over the failure to be sent there is not sufficient to warrant the granting of the writ.

Scott’s real argument on this point is that the misstatement of counsel regarding New York law has resulted in a deprivation of his right to effective counsel as required by the Sixth and Fourteenth Amendments, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). This argument is not supported by the record. Although it is surprising that counsel would not be aware of the governing New York statute, his conduct was not such as would “shock the conscience of the Court and make the proceedings a farce and mockery of justice.” United States ex rel. Boucher v. Reincke, 341 F.2d 977, 982 (2d Cir. 1965); quoting from United States v. Wight, 176 F.2d 376, 379 (2d Cir. 1949), cert. denied, 338 U.S. 950, 70 S.Ct. 478, 94 L. Ed. 586 (1950); United States v. Silva, 418 F.2d 328 (2d Cir. 1969); United States v. Horton, 334 F.2d 153, 154 (2d Cir. 1964). See also, United States ex rel. Maselli v. Reincke, 383 F.2d 129, 132 (2d Cir. 1967) where it is stated that for there to be a lack of compliance with the fundamental fairness essential to due process, counsel’s representation must be so “ ‘horribly inept’ as to amount to ‘a breach of his legal duty faithfully to represent his client’s interests.’ * * *” The present case is a long way from meeting the tests set out above.

Scott’s third and final point, that he should have been allowed to withdraw his plea before sentence was imposed as there was no prejudice shown by the state, deals not with the voluntariness of his plea, but rather with the discretionary authority of the trial judge. A criminal defendant has no absolute right to withdraw a plea of guilty. Permission to do so rests in the sound discretion of the trial judge. In a federal trial permission to withdraw a plea “may be granted at the discretion of the trial court and a denial thereof is reversible only if it appears that there has been an abuse of discretion.” United States v. Lester, supra, 247 F.2d at 500; United States v. Hughes, 325 F.2d 789 (2d Cir.), cert. denied, 377 U.S. 907, 84 S.Ct. 1167, 12 L.Ed.2d 178 (1964). On an application for habeas corpus by a state prisoner, our review also starts with the proposition that the motion rests in the discretion of the trial judge. United States ex rel. Rosa v. Follette, 395 F.2d 721 (2d Cir.), cert. denied, 393 U.S. 892, 89 S.Ct. 216, 21 L.Ed.2d 172 (1968); United States ex rel. Best v. Ray, 239 F.Supp. 632 (S.D.N.Y.1965), aff’d, 365 F.2d 832 (2d Cir. 1966), cert. denied, 386 U.S. 998, 87 S.Ct. 1319, 18 L.Ed.2d 347 (1967). See generally, ABA, Pleas of Guilty, § 2.1(b) (Approved Draft, 1968).⁴ Here the state courts have passed on and rejected Scott’s claims of abuse of discretion and we should not interfere with their determination absent a clear issue of constitutional dimensions.⁵ As set forth earlier, the trial judge refused to allow the plea to be withdrawn because he felt that there was no substantial reason therefor, and we cannot say that his refusal was so arbitrary as to be a clear or unconstitutional abuse of discretion.

The evidence before the district court shows that the plea was the knowing and voluntary act of a man who had weighed the possibilities and had decided that his best chance to receive the disposition he so strongly desired was to plead guilty to the lesser charge. The fact that his desire was buttressed by the good faith advice of his counsel does not invalidate the plea nor make it involuntary. We are far from persuaded by the claims now belatedly put forward by Scott, which, if sustained, would afford an all too easy avenue for the invalidating of convictions on a plea of guilty. United States v. Horton, supra; see also United States v. Weese, 145 F.2d 135, 136 (2d Cir. 1944) where the basis for requesting a withdrawal of a plea was a statement by counsel that he had misled his client into being too hopeful as to the possibility of a suspended sentence, the court stating

“If on so flimsy a basis as this, amounting, at least at the actual time of the plea, to no more than counsel's hope for a suspended sentence, a plea can be withdrawn, it is obvious that an accused may safely indulge in a plea of guilty as a mere trial balloon to test the attitude of the trial judge, being reasonably secure in the knowledge that he can withdraw it without great difficulty.”

The judgment of the district court is reversed and the petition for a writ of habeas corpus is dismissed.

1 . Scott and his counsel exchanged several' letters after the plea and conviction. On December 12, 1964, Scott wrote a letter expressing his frustrations after he had learned that the appeal had been rejected by the Appellate Division, and counsel responded on December 28, 1964. Scott again wrote counsel on July 18, 1966, notifying him that Scott had filed an application for a writ of coram nobis based on “the unconstitutional breech [sic] of promise perpetrated by the Hon. Frederick Marshall * * Counsel replied in a letter dated July 23, 1966, expressing his sympathy with the application and offering his assistance.

2 . This letter merely expresses counsel’s disappointment over the actual sentence received and makes no reference to the claim that Scott had been led to believe that he could withdraw his plea.

3 . On redirect, the following was stated:

Q. Was he not given the assurance— the reassurance that if the disposition did not work out he could always withdraw his plea? A. Oh, yes, I told him that. I indicated to him after we entered the plea, and as a matter of fact, I might have said it before he entered the plea, that if he had any misgivings I thought we could apply — we would be permitted to withdraw the plea.

Q. So that prior to Mr. Scott actually entering the plea it was his understanding that if he entered the plea to the reduced charge, in return he would be sent back to Washington, D. C., or in the alternative, if he wasn’t going to be sent back he could always withdraw his plea?

A. Well, Mr. Schroeder, I didn’t tell him after he was sentenced he could withdraw his plea, because I understand that to be the law.

Q. No, no. A. Tes, I did understand the law to be he could withdraw his plea up until any time he was sentenced.

Q. I am sorry if I said “after sentence.” It was his understanding in the alternative if he wasn’t going to be sent to Washington, D. C. that after sentence he could always withdraw his plea. That was Mr. Scott’s understanding of this whole arrangement? A. Absolutely.

This ambiguous language is susceptible to the interpretation that the trial judge may allow withdrawal of the plea but that it is not mandatory that he do so.

4 . Pleas of Guilty. § 2.1(b)

“In the absence of a showing that withdrawal is necessary to correct a manifest injustice, a defendant may not withdraw his plea of guilty or nolo contendere as a matter of right once the plea has been accepted by the court. Before sentence, the court in its discretion may allow the defendant to withdraw his plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant’s plea.”

See also the commentary on p. 58 stating

“There does not appear to be any good reason for allowing withdrawal as a matter of right, absent a showing of manifest injustice, once the court has accepted the plea.

“The standard does recognize the generally acknowledged discretion of the judge to permit withdrawal before sentence even in the absence of a manifest injustice. This is a matter solely within the discretion of the judge; he may but need not grant the motion.”

5 . On December 3, 1964, the appeal from the conviction of April 1, 1968, was affirmed by the Appellate Division, Fourth Department, without opinion, and leave to appeal to the New York Court of Appeals was denied on December 23, 1964. On September 21, 1966, an order was entered in the Erie County Court denying, without a hearing, petitioner’s application for a writ of coram nobis. On June 15, 1967 the order was affirmed without opinion by the Appellate Division, Fourth Department, and on August 7, 1967, leave to appeal to the New York Court of Appeals was denied.