APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 95-cv-01135) (D.C. No. 95-cv-00819)
Before: STAPLETON, SCIRICA, and WEIS, Circuit Judges.
Submitted Pursuant To Third Circuit LAR 34.1(a) April 29, 1996
In these habeas corpus cases, petitioners allege that they would not have pleaded nolo contendere if they had known that their pleas would prevent them from appealing a pre-trial ruling. The state's intermediate appellate court found that the pleas were induced by faulty legal advice by trial counsel and that petitioners were entitled to new trials. The state Supreme Court reversed, holding that the petitioners' responses during a plea colloquy in the state trial court barred them from challenging the voluntariness of their pleas. Because established federal law prohibits giving such preclusive effect to plea colloquies, we conclude that habeas corpus relief is appropriate.
Petitioners Larry Meggett and Anthony Dickerson were charged in the Court of Common Pleas of Bucks County, Pennsylvania, with counts of participating in a corrupt organization, manufacture, delivery and possession of controlled substances, conspiracy and related offenses. On the day set for trial, the presiding judge denied the petitioners' motions raising double jeopardy.
While petitioners were handcuffed together in the courtroom awaiting selection of a jury, they heard their co-defendants plead guilty and agree to turn state's evidence. The prosecutor then offered petitioners a concession limiting the terms of incarceration imposed if they pleaded guilty. Petitioners asserted that they then decided to plead nolo contendere after assurances from their respective lawyers that the double jeopardy issue could be preserved for appeal.
During the plea colloquy, the trial judge told each defendant that "as far as sentencing is concerned [entering a nolo contendere plea] is the same as pleading guilty." The judge then asked: "Do you understand your only appeal rights are whether this [crime] happened in Bucks County; whether [the] sentence is lawful and whether you're entering this plea of your own free will?" Petitioners replied that they so understood.
Petitioners did not take a direct appeal, but two months after sentencing they filed petitions under the Pennsylvania Post Conviction Relief Act. The Common Pleas Court conducted a consolidated evidentiary hearing at which both petitioners and their attorneys testified. The court denied relief, finding the trial counsels' testimony to be credible and rejecting the portions of the petitioners' testimony that were contradictory.
At the hearing, Meggett testified that he, Dickerson and their respective lawyers were all present when they discussed the possibility of entering nolo contendere pleas. Meggett asked his counsel whether he would be giving up his right to contest the double jeopardy matter if he pleaded nolo contendere. His lawyer responded, "No, we would still be preserving our rights." Meggett testified that both lawyers replied that "if we took the nolo contendere we could still have the issues preserved." During his testimony, Meggett's trial counsel was asked what he had told his client about the validity of the double jeopardy claim. He answered, "I thought it was a good argument. I couldn't guarantee it was a winner and that he could attempt to argue it after he pled guilty. And that if he wished to do that, he should get new counsel, because I certainly wouldn't be in a position to do it. And I told him that I couldn't guarantee we would win either, if he did plea or if we didn't plea." The lawyer was then asked: "Did you believe at that time that he could continue his double jeopardy argument even after entering a nolo contendere plea?" He responded: "I believe that if counsel is creative, he probably could get away with that," but that he had not looked into how it could be done because it was "not my job." Petitioner Dickerson testified that his lawyer said nolo contendere was not like a guilty plea because ...