It is well settled that an accused's plea of guilty, like any surrender of fundamental constitutional rights, satisfies the due process clause of the Fourteenth Amendment only if made intelligently and voluntarily. Machibroda v. United States, 368 U.S. 487, 82 S. Ct. 510, 7 L. Ed. 2d 473 (1962); Kercheval v. United States, 274 U.S. 220, 47 S. Ct. 582, 71 L. Ed. 1009 (1927). The plea must reflect the considered choice of the accused, free of any factor or inducement which has unfairly influenced or overcome his will. A guilty plea that is induced by coercion, promises, or is otherwise unfairly obtained or given through ignorance of the consequences, fear or inadvertence is inconsistent with due process of law. Moreover, the importance of assuring that a defendant does not plead guilty except with a full understanding of the charges against him and the possible consequences of his plea was at the heart of Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). Boykin added the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea voluntarily and understandingly.
The colloquy entered into between Judge Beloff, Mr. Booker and relator at the time of the taking of relator's plea (see Part II.A. supra) was sufficient for the judge to ascertain: (1) that relator's plea was not induced by threats or promises of any kind; (2) that he was aware of the nature of the charges against him; and (3) that he was aware of his right to trial by jury.
Although the court itself did not personally direct all the questions to the relator, but instead was aided by the participation of Mr. Booker, this procedure does not violate the mandate of Boykin. See Davis v. United States, 470 F.2d 1128 (3d Cir. 1972).
B. Was Relator Adequately Informed of the Punishment for the Crimes with which he was Charged Prior to the Entry of the Guilty Plea?
It is well settled that prior to the entry of the guilty plea, a defendant should be advised of the consequences of that plea, including the maximum sentence which may be imposed on a plea of guilty.
As was noted earlier, the record shows that the court did not advise relator of the maximum sentence which could be imposed upon entry of his plea of guilty. However, we have found that Mr. Bryant informed relator that he faced a possible sentence of sixty years. This conversation provided him sufficient knowledge of the consequences of his plea to meet the constitutional minimum standard of Boykin. See, e. e., Todd v. Lockhart, 490 F.2d 626 (8th Cir. 1973);
Wade v. Coiner, 468 F.2d 1059 (4th Cir. 1972).
The one remaining question in this area is whether a warning of a possible sixty year term suffices where there is a possibility that the maximum term
could have been as much as eighty years.
While Fed.R.Crim.P. 11 may set a higher standard where it applies (see note 13 supra), a substantial body of caselaw indicates that the constitution requires only that the accused understand the seriousness of the charges to which he is pleading and approximately the sort of penalty he may face. See, e.g., United States v. Blair, 470 F.2d 331, 340 n. 20 (5th Cir. 1972), cert. denied, 411 U.S. 908, 93 S. Ct. 1536, 36 L. Ed. 2d 197 (1973); McDonald v. Kropp, 373 F.2d 549, 558-59 (6th Cir. 1967); Verdon v. United States, 296 F.2d 549, 553 (8th Cir. 1961) (Blackmun, J.). Simply stated, the purpose of the requirement that the defendant be warned of the possible consequences of his plea is to insure that no defendant will give up the panoply of rights accompanying trial without understanding the sort of trouble he may be getting himself into. Such an understanding was manifestly present in the instant case.
At the time his plea was entered, relator was approximately thirty-four years old. The difference between a possible maximum sentence of sixty years and one of eighty years could hardly have altered his decision whether a plea was in his best interests. What is important in satisfying constitutional standards is relator's awareness that he faced a very substantial prison term. Any claim to the contrary is muted by the fact the relator was no novice in the criminal process; the state court record reflects prior convictions for both robbery and burglary. Finally, and of equal importance, since the sentence imposed was six to thirty years, the maximum portion imposed being only one-half that which he was told he faced, the error of stating sixty rather than eighty years was not prejudicial.
Accordingly, on the claim which emerged from the facially inadequate plea hearing colloquy, relator is not entitled to relief.
C. Was Relator's Plea a Knowing and Intelligent Act Entered With the Effective Assistance of Counsel?
A habeas corpus petitioner seeking collateral relief from a counselled state court guilty plea "is bound by his plea and his conviction unless he can allege and prove serious derelictions on the part of counsel sufficient to show that his plea was not, after all, a knowing and intelligent act." McMann v. Richardson, 397 U.S. 759, 774, 90 S. Ct. 1441, 1450, 25 L. Ed. 2d 763 (1970). Phrased differently:
Whether a plea of guilty is unintelligent and therefore vulnerable . . . depends as an initial matter, not on whether a court would retrospectively consider counsel's advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases.
Id. at 770-71, 90 S. Ct. at 1448. In this respect, our examination "resolves into a determination whether [relator] received the effective assistance of counsel in reaching the decision to plead guilty." United States ex rel. Broaddus v. Rundle, 429 F.2d 791, 793 (3d Cir. 1970). The burden is upon relator to show that his plea was not intelligently entered and that in advising the guilty plea counsel exhibited a lack of normal competency. See United States ex rel. Watson v. Lindsey, 461 F.2d 922 (3d Cir. 1972); United States ex rel. Felton v. Rundle, 343 F. Supp. 938 (E.D.Pa.1972); United States ex rel. Jones v. Russell, 320 F. Supp. 1028 (E.D.Pa.1970). "Counsel's failure to evaluate properly facts giving rise to a constitutional claim, or his failure properly to inform himself of facts that would have shown the existence of a constitutional claim," plays a part in evaluating the advice rendered by counsel and may aid relator in meeting this standard of proof. Tollett v. Henderson, 411 U.S. 258, 266-67, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235 (1973).
In the present case, neither in his own testimony nor in counsel's brief, is relator able to point to any serious derelictions on the part of counsel in advising the plea. Indeed, reviewing the circumstances in the present case, there were several compelling grounds which supported counsel's advice to relator to enter a plea of guilty. Counsel was faced with a case in which the evidence against his client was overwhelming. Relator had robbed the same bar on three occasions within the space of one week. He was well known to both of the bartenders held up: one had served him as a customer on approximately twenty-five prior occasions; the other had known him for fifteen years. Comm.N.T. 16, 19-20. During the third holdup, the bartender managed to subdue relator and hold him until the police came. These witnesses were present in court and available to testify. It is clear that they could identify him. Moreover, on the basis of two interviews (one at the preliminary hearing by an attorney from the Defender Association and the other at prison by an investigator), the Defender Association was able to subpoena only two defense witnesses, both of whom could testify only to matters pertinent to sentencing. In this situation (and after having been denied a continuance by Judge Beloff, whom he was trying to avoid because of the Judge's "tough" reputation), Mr. Booker informed relator that "it didn't look too good" (N.T. 16-17) and, therefore, advised a guilty plea. The record shows that the recommendation was based on counsel's weighing the strength of the evidence against his client, the reasonable likelihood of a reduced sentence in the event of a guilty plea, and the inability to avoid presenting relator's case before Judge Beloff. Furthermore, the record reveals no possible constitutional claims based on pre-trial identification procedures or statements made by relator while in custody. Under these circumstances, it seems clear that in advising the guilty plea, Mr. Booker exhibited "normal competency." Moore v. United States, 432 F.2d 730, 737 (3d Cir. 1970).
Relator's argument does not stop here, however, for he contends that defense counsel's advice to plead guilty was based on inadequate preparation and a lack of knowledge about his case.
Relator argues that if counsel's advice is based on preparation which is palpably deficient when compared with normal competency, the plea can hardly be said to be an intelligent act done with sufficient awareness of the relevant circumstances and likely consequences. Assuming the logic of such an argument (which essentially contends that trial counsel's preparation prior to the entry of the plea was so inadequate that it fatally flawed the competency of the advice to plead guilty),
we do not find that the preparation (and performance) in this case fell below that standard of normal competency which must precede a knowing and intelligent plea. The ordinary standard for judging effective assistance of counsel was set out by the Third Circuit in Moore v. United States, 432 F.2d 730 (1970), which held that counsel's preparation and performance was to be measured against a standard of normal competency.
The standard does not vary whether an indigent is represented by an individual or an institution such as the Defender Association.
While this is not a "late appointment" case as such (see n. 20 supra), it is akin to those cases insofar as they generally concern adequacy of preparation. Thus, in Moore itself, the Court stated that the question of late appointment necessarily involved a consideration of the time of the appointment in the light of "all the attendant circumstances, such as the gravity of the charge, the experience of appointed counsel, the extent of his knowledge and participation in similar cases, his opportunity for preparation and even what he may have been told by the defendant which may reduce the area of necessary preparation." 432 F.2d at 735. Moreover, the language of Judge Rosen in United States v. Junne, 458 F.2d 1156, 1158 (3d Cir. 1972) is apposite:
In applying this [normal competency] standard, the time of appointment of counsel should not be seen in vacuo, but, rather should be viewed in light of all the "attendant circumstances" [citing Moore, 432 F.2d at 735]. Paramount among these circumstances are the preparation difficulties of a case and the experience of a particular lawyer.