plea bargain in this case, either of the conventional type, between Dougherty (through counsel) and the prosecutor, or between Dougherty (through counsel) and the judge, except to the extent that the prosecutor Richter agreed (1) to consolidate the various indictments under Rule 20, and (2) not to make a sentencing recommendation. Insofar as these two considerations constitute a plea bargain, it was kept. Secondly, we find that what induced Dougherty to enter pleas of guilty to the three indictments before Judge Kraft was his expectation, based upon the advice of counsel, that he would receive a sentence of no more than 25 years, coupled with counsel's advice that the evidence against him was overwhelming. In this regard, it will be noted that we use the term "expectation" rather than "assurance" because we have found that Smith informed Dougherty of Judge Kraft's "no commitment" utterance. This formulation does not inveigh against Dougherty's contention, which we credit, that both he and Smith believed that the sentence would likely be less than 25 years, for we see a distinction between an expectation based upon a belief that a judge sees a case a certain way, and an assurance stemming from a bargain. Finally, we find that Dougherty's plea was knowingly, intelligently, and voluntarily made.
It was established long before Chief Justice Burger's opinion in Santobello that unfulfilled promises or assurances of a particular sentence may be "inducements" which destroy the voluntariness of a plea and serve to invalidate it. Machibroda v. United States, 368 U.S. 487, 82 S. Ct. 510, 7 L. Ed. 2d 473 (1962), held that a guilty plea must be vacated if the defendant can prove that he had been falsely promised by the prosecutor, in return for the plea, that a certain sentence would be given.
This rule is a function of the even more fundamental principle that to be valid a guilty plea must be knowing, intelligent, and voluntary. For a plea is more than an admission of past conduct; it is the defendant's consent that a judgment of conviction be entered without a trial. Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970). Such a consent requires a waiver of the right to trial before a judge or jury and the rights to confront and cross-examine witnesses, to present exculpatory evidence, and to be presumed innocent unless found guilty beyond a reasonable doubt. Waivers of constitutional rights must be not only voluntary but also knowing, intelligent steps taken with awareness of the relevant circumstances and likely consequences.
Santobello is but a continuation of this line of cases, with the added gloss which approves the device of plea bargaining and gives binding effect to a prosecutor's promise when the facts of the individual case indicate that the guilty plea was induced by, or given in exchange for, a prosecutorial promise.
This case is clearly not governed by Santobello, in view of our finding that there was no plea bargain either between Dougherty and the prosecutor or between Dougherty and the judge.
But the case is within the mainstream of the line of authority dealing with what constitutes a voluntary plea, for there are cases holding that, even where there is no promise by the prosecutor or judge, a plea may lack voluntariness where the defendant's counsel has, for whatever reason, misrepresented to the defendant that there has been such a promise and the representation by counsel is an inducement to the plea. For example, in Mosher v. La Vallee, 351 F. Supp. 1101 (S.D.N.Y. 1972), Judge Bryan found as a fact that, although defense counsel had no commitment from the prosecutor or judge, he had represented to his client that the judge had committed himself to give a 15-16 year sentence on a guilty plea, and granted the petitioner relief.
The Third Circuit has not yet had an opportunity to address the issues raised in Mosher. It has, however, twice dealt with situations in which there was no understanding or agreement with the prosecutor but where the defendant was induced to plead by the "assurances" of his defense counsel that the sentence that would be imposed would be concurrent with the sentence he was already serving. In Masciola v. United States, 469 F.2d 1057 (3d Cir. 1972), and in Paradiso v. United States, 482 F.2d 409 (3d Cir. 1973), the court held that such "predictions" by defendant's counsel did not render the plea involuntary.
In Masciola, there was no allegation of an understanding with the prosecutor or judge. The petitioner complained that he pleaded guilty because his lawyer "assured" him that his sentence would be concurrent with one he was already serving. The court denied relief, holding that "[inaccurate] assurance by counsel, or erroneous expectations of defendant, as to sentencing are not in and of themselves grounds for reversal of a conviction or for permission to withdraw a guilty plea." The court noted that petitioner alleged no facts "to indicate that counsels' assurances were any more than predictions based on counsels' knowledge and experience . . ."
In Paradiso the petitioners pleaded guilty after defense counsel told them "there was a good probability of getting a concurrent sentence" on the two charges. One indictment was in the Eastern District of New York (in Brooklyn) and the other in New Jersey. Counsel learned that if the New Jersey case were transferred to Brooklyn, the usual policy of the Brooklyn U.S. Attorney's Office would be to recommend concurrent sentences. Instead, the Brooklyn case was transferred to New Jersey, and defense counsel testified that he "assumed" that the Brooklyn sentencing policy would prevail in New Jersey, by virtue of the fact that the Assistant U.S. Attorneys handling the cases in the two districts had talked to each other and agreed to consolidate the cases in New Jersey. The court held that Masciola was controlling.
The Third Circuit's use of the word "assurances" in Masciola and Paradiso does not necessarily posit a rule that a defendant will not be entitled to relief in any case where the plea is induced, not by the assurances of the government or the court, but by the assurances of his own counsel, regardless of how baseless or reckless those assurances are. Indeed, in Moorhead v. United States, 456 F.2d 992 (3d Cir. 1972), the court indicated that a guilty plea is involuntary if induced by intentional misrepresentation of the defendant's attorney that a plea bargain has been struck.
Cf. Castro v. United States, 396 F.2d 345 (9th Cir. 1968), where the court ordered a hearing on voluntariness on the basis of an affidavit of the defense attorney that he had erroneously advised the defendant that his sentence could be no longer than six years and that he would be eligible for parole after one-third of his sentence (this was a narcotics case carrying a maximum of 20 years and in which parole was unavailable). And we have already discussed Mosher. However, we need not determine precisely what line the Third Circuit would draw between Masciola and Paradiso on the one hand, and Mosher, Moorhead, and Castro, on the other, for the facts that we have found in this case come squarely within Masciola and Paradiso's ambit. Our findings have been that Smith's statements to Dougherty were his predictions as to what Judge Kraft would do. Hence, relief must be denied.
There is, however, another aspect of the matter. It relates to the colloquies on the record between Judge Kraft and Dougherty at the time of the plea, which we have recited in our findings of fact. On February 4, Dougherty denied being offered any inducements by anyone, including his attorney. And on March 26, when the two rule 20 pleas from California were entered, Judge Kraft stated that he had given no assurance to the U.S. Attorney or defense counsel as to what the sentence would be, and cautioned Dougherty that if he was entering the plea on any expectation that the judge had given some promise that Dougherty would get a certain type of sentence, he had been misinformed. While it is true that Dougherty's answers to such "no promises" questions are not dispositive on the issue of voluntariness, we have in this case found, after an evidentiary hearing, that Smith also advised Dougherty that Judge Kraft would make no promises or commitments.
We hold, then, that Dougherty's plea was voluntary, the product of the concurrent views of Dougherty and Smith that, in view of the overwhelming evidence, it would be preferable to plead and their belief that, in all probability, Judge Kraft would impose a sentence of not more than 25 years. The plea was not deprived of its voluntary character by any representations of the prosecutor or judge, or by a categorical statement of defense counsel that a bargain had in fact been struck. It may be that the sentence of 40 years was overly long, and that 25 years would have been more appropriate. However, we are powerless to review the sentence; all that is before us is the voluntariness of the plea.