Henry Arthur Little v. Harry Allsbrook, Attorney General of N.C.

731 F.2d 238, 1984 U.S. App. LEXIS 23821
CourtCourt of Appeals for the Fourth Circuit
DecidedApril 5, 1984
Docket83-6511
StatusPublished
Cited by49 cases

This text of 731 F.2d 238 (Henry Arthur Little v. Harry Allsbrook, Attorney General of N.C.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Henry Arthur Little v. Harry Allsbrook, Attorney General of N.C., 731 F.2d 238, 1984 U.S. App. LEXIS 23821 (4th Cir. 1984).

Opinions

K.K. HALL, Circuit Judge:

The State of North Carolina appeals from an order of the district court issuing a writ of habeas corpus on behalf of Henry Arthur Little. We conclude that the district court erred in issuing the writ and reverse,

I.

In November, 1979, Little was arrested and charged with first-degree murder. In March, 1980, Little pleaded guilty to second-degree murder pursuant to a plea bargain his attorney, John Wilkinson, had negotiated with the State. According to the terms of the plea bargain, the State agreed not to pursue the charge of first-degree murder in exchange for Little’s plea to second-degree murder. After questioning Little as to his understanding of the plea bargain and the voluntariness of his plea, the court accepted the guilty plea and sentenced Little to twenty-five to thirty years imprisonment.1

After exhausting his state court remedies, Little sought habeas relief in the federal district court. He alleged that Wilkinson had misled him into believing he would receive a sentence which would make him eligible for parole in five years, and that he had only entered the guilty plea because of this misrepresentation.

A hearing was held before a magistrate in March, 1983. At the hearing, Little stated that Wilkinson told him he had talked to the district attorney and “worked out a deal” under which Little “could make parole in five years ... if [he] plead[ed] guilty.” According to Little, Wilkinson told him nothing else about the plea, and never said what the sentence would be. On cross-examination, Little asserted that he had lied under oath when upon entering his guilty plea he had indicated that he was satisfied with Wilkinson’s services, and that no one had made any promises to cause him to enter the plea.2 Little’s wit[240]*240nesses gave conflicting stories about what they had been told by Wilkinson.

Wilkinson testified on behalf of the State and denied ever having promised that if Little pleaded guilty he would be sentenced so as to be eligible for parole in five years. He also denied making any representations as to sentence or parole to Little’s family. Wilkinson stated that he told Little that he might receive a sentence “somewhere between twenty and thirty years,” and that when Little inquired about parole, Wilkinson had responded, “I don’t know about parole____ As I understand the law, you will be eligible for parole when you serve one-fifth of your maximum sentence, but there ain’t any maximum sentence as yet. We’re still negotiating.” Additionally, Wilkinson testified that he might have indicated to Little that he could be eligible for parole in fifteen years. Wilkinson maintained, however, that he had never told Little that he would receive a certain sentence. The parties stipulated that Little’s parole eligibility date was November 22, 1995, approximately fifteen years from the date of his conviction.3

After evaluating the evidence presented at the hearing, the magistrate characterized Wilkinson’s testimony as “very credible” and recommended that Little’s petition be denied. The district judge adopted the magistrate’s findings of fact without questioning the findings concerning Wilkinson’s credibility, but disagreed with the magistrate’s recommendation. The district judge found that Little had been “grossly misinformed about the parole possibilities by his lawyer and that he relied upon that misinformation in reaching his decision to plead guilty,” and therefore concluded that Little was deprived of his constitutional right to effective assistance of counsel. Habeas relief was granted, and the State appeals.

II.

On appeal, the State contends that Little’s alleged expectation of parole did not render his plea involuntary, and, that, therefore, the district judge should have denied Little’s petition for a writ of habeas corpus. We agree.

The district judge surmised that Wilkinson’s prediction that Little might receive a sentence between twenty and thirty years, combined with his advice that Little would become eligible for parole after one-fifth of the maximum sentence, may have led Little to conclude that upon his guilty plea he would become eligible for parole in five years. The judge held that because under the sentence Little received his statutory parole eligibility is computed at twenty years rather than five years,4 Wilkinson grossly misinformed Little about parole possibilities.5 The district judge further [241]*241held that under Strader v. Garrison, 611 F.2d 61 (4th Cir.1979), and O’Tuel v. Osborne, 706 F.2d 498 (4th Cir.1983), Little’s reliance upon this misinformation deprived him of his constitutional right to effective assistance of counsel. To the contrary, we hold that Strader and O’Tuel are inapplicable to the facts of this case.

In Strader, petitioner Strader escaped from prison while serving a sentence of forty-five to fifty-five years, and, after his recapture, was tried for an armed robbery which he allegedly committed while on escape. He agreed to plead guilty to the robbery with the understanding that he would be sentenced to thirty years to be served concurrently with his original sentence. Strader had only a few more years to serve before becoming eligible for parole on his original sentence. He expressed concern that the thirty-year sentence might further postpone his parole eligibility date, but he was assured by his lawyer that it would not. This advice was wrong, because under applicable regulations the thirty-year concurrent sentence required a re-computation of the period to be served to establish parole eligibility. Strader therefore entered his guilty plea believing that his new parole eligibility date would be several years sooner than the regulations permitted. This Court concluded that Strader was entitled to habeas relief because he had been grossly misinformed about parole eligibility and that he had relied upon that misinformation in pleading guilty. 611 F.2d at 65.

This Court reached a similar conclusion in O’Tuel. O’Tuel was charged with first-degree murder, and was offered the opportunity to plead to second-degree murder with life imprisonment. When O’Tuel asked about parole eligibility, his attorney advised him that applicable law considered a sentence of life imprisonment as commuted to forty years, and, therefore, O’Tuel would have to serve only ten years before he would be eligible for parole. Although this previously had been the law, the controlling statute had been amended to provide that a prisoner serving a life sentence was eligible for parole consideration only after serving twenty years. After receiving his attorney’s incorrect advice, O’Tuel pleaded guilty to second-degree murder and received a life sentence, as agreed upon in the plea bargain. This Court concluded that habeas relief was appropriate because O’Tuel had received gross misinformation in reaching his decision to plead guilty, and that he would not have entered the plea if he had been properly advised of his parole eligibility. 706 F.2d at 500-01.

One significant factor readily distinguishes this case from Strader and O’Tuel: both Strader and O’Tuel knew what sentence to expect from their pleas.

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Cite This Page — Counsel Stack

Bluebook (online)
731 F.2d 238, 1984 U.S. App. LEXIS 23821, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henry-arthur-little-v-harry-allsbrook-attorney-general-of-nc-ca4-1984.