Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit
9-30-2008
Philmingo Jamison v. Atty Gen PA Precedential or Non-Precedential: Precedential
Docket No. 07-1045
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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________________
Nos: 07-1045 _____________________
PHILMINGO JAMISON,
Appellant
v.
EDWARD KLEM; DISTRICT ATTORNEY OF YORK COUNTY; ATTORNEY GENERAL OF THE COMMONWEALTH OF PENNSYLVANIA
____________________
Appeal from the District Court for the Middle District of Pennsylvania (Civ. Action No. 05-00831) District Court: Hon. Christopher C. Conner ____________________
Argued July 24, 2008
| BEFORE: McKEE, FUENTES, and WEIS Circuit Judges,
1 (Opinion filed: September 30, 2008)
LEO A. LATELLA, ESQ. (Argued) Federal Public Defender 116 North Washington Street Kane Professional Building, Suite 2C Middle District of Pennsylvania Scranton, PA 18503
Attorneys for Appellant
KATHERINE L. DOUCETTE, ESQ. (Argued) WILLIAM H. GRAFF, JR., ESQ. York County District Attorney 45 N. George Street York, PA 17401
Attorneys for Appellee
Opinion McKEE, Circuit Judge.
Philmingo Jamison was sentenced to five to ten years
imprisonment after pleading guilty to two separate criminal
cases involving drug offenses. After unsuccessfully challenging
his conviction in state courts, Jamison filed a pro se petition for
2 habeas corpus under 28 U.S.C. § 2254 in which he challenged
the voluntariness of his guilty plea. The Magistrate Judge to
whom the petition was referred issued a thorough Report and
Recommendation recommending that habeas relief be granted.
That Judge concluded that Jamison’s plea was not knowing,
voluntary and intelligent because Jamison was not advised of the
mandatory term of imprisonment that his guilty plea subjected
him to under Pennsylvania’s indeterminate sentencing scheme.
The District Court rejected the recommendation, and denied the
petition because no Supreme Court precedent specifically
requires that defendants be informed of the terms of an
applicable mandatory minimum sentence before pleading guilty.
The District Court thus concluded that the state courts’ rejection
of Jamison’s claim was neither contrary to, nor an unreasonable
application of, Supreme Court precedent.
For the reasons that follow, we will reverse.
3 I. Factual and Procedural Background.
In September 2000, Jamison was charged in two separate
cases; one charged him with possession of cocaine and
marijuana with intent to deliver, and the other charged him with
possession of marijuana, driving without a license, and reckless
endangerment. Prior to trial, the prosecutor offered Jamison the
opportunity to plead guilty in exchange for a sentence of “4-8
years.” Pursuant to the advice of counsel, Jamison rejected that
plea offer.
However, Jamison eventually decided to enter an open
guilty plea without executing any formal plea agreement.
Thereafter, the Commonwealth completed a one-page form
wherein the prosecutor wrote that the government would
nevertheless still recommend: “4-8 years w/ mand.”
On July 9 th , 2001, the trial court conducted a change of
plea hearing which began with the prosecutor stating:
4 [Jamison] has filled out a guilty plea colloquy. It is going to be a straight plea with a pre-sentence, other than the fact that we will run the recklessly endangering case concurrent with the drug case. He is facing a sentence by Judge Kennedy on a third-degree homicide, and we have no agreement as to whether these cases are concurrent or consecutive. Of course, we are going to ask for them to be consecutive, and we will be filing mandatory on the drug case.1
No other statements were made at the hearing regarding
the mandatory minimum sentence, or the length of the sentence
Jamison would be required to serve under state law as a result of
the applicable mandatory minimum sentence. Moreover, other
than the aforementioned reference to “filing mandatory . . .”,
Jamison was never informed that his plea required the judge to
impose a sentence of imprisonment. On the contrary, during the
hearing, the court told Jamison that because there was no
1 Jamison was also facing charges pertaining to an unrelated homicide. He claims that he was primarily focused on those homicide charges, and he intended to plead guilty to the controlled substance charges if convicted of the homicide.
5 agreement with the Commonwealth, sentencing “is basically up
to the court.” The judge asked Jamison if he understood that
sentencing was “basically up to the court,” and Jamison affirmed
that he did. The court then accepted Jamison’s guilty plea. In
doing so, the court implicitly found that Jamison was entering
the plea knowingly, voluntarily, and intelligently.
Jamison also filled out and signed a written guilty plea
colloquy. In that colloquy, Jamison acknowledged only that he
was facing a maximum term of 20 years imprisonment pursuant
to his plea.
Six days after Jamison entered the plea, the
Commonwealth sent a letter to both Jamison and defense
counsel. The letter stated in part:
Based on your guilty plea to an offense at 35 P.A. C.S.A. 780-113 (a)(30) wherein the controlled substance, Cocaine, totaled 79.1 grams, a mandatory minimum sentence of 3 years, and $15,000 fine must be imposed, 5 years and
6 $30,000 if second or subsequent offense.2
On August 1, 2001, Jamison returned to the state trial
court for a sentencing hearing. The prosecutor noted at the
hearing that Jamison had a juvenile record for possession of
cocaine with intent to distribute, and that he was therefore
subject to a mandatory minimum sentence of 5 years
imprisonment and a $30,000 fine. The court then informed
Jamison that he had a right to make any statement that he
“care[d] to make,” but that he was not required to make any
statement if he did not choose to speak.3 Jamison responded that
he “had nothing to say.” The court then sentenced him to not
less than five nor more than ten years for the cocaine conviction
2 Jamison's attorney testified at a subsequent PCRA hearing that he never received this correspondence from the Commonwealth, and that he never discussed its content with Jamison. Jamison, acknowledged at the PCRA hearing that he received the letter but stated that his attorney never discussed it with him. 3 Jamison was not asked whether knowledge of the mandatory minimum changed his mind about pleading guilty.
7 and imposed a fine of $30,000. The court also imposed a
concurrent sentence of not less than two, nor more than four
years for the marijuana charge. The sentences were consecutive
to any sentence that was imposed on the conviction for third-
degree homicide.
A. State Court Decisions.
On June 5, 2002, Jamison filed a pro se petition under the
Pennsylvania Post-Conviction Relief Act (“PCRA”) in which he
challenged inter alia, the validity of his guilty plea. Counsel
was thereafter appointed, and a hearing was conducted. At that
PCRA hearing, Jamison testified that prior to his guilty plea, he
was not informed by anyone that his guilty plea subjected him
to a mandatory minimum sentence, much less a mandatory
minimum sentence of five years and $30,000 fine. Jamison
further testified that when the prosecutor stated at the change of
plea colloquy that she would be “filing a mandatory on the drug
8 case,” he did not know what she was referencing. Jamison
maintained that he did not know he was facing a mandatory
minimum sentence of five years. “As far as she said, a
mandatory, and that was it. I didn’t know what mandatory
would be filed. I didn’t know I was subject to a mandatory
minimum of five years and fine due to my second offense.”
Jamison testified that he would not have entered an open guilty
plea if he had known that he would have to serve at least five
years in prison as a result.
Jamison’s PCRA testimony was confirmed by his trial
counsel, Harold Fitzkee, Jr., who had been the York County
District Attorney before returning to private practice. He
testified that he never told Jamison that Jamison would have to
serve at least five years in prison if he pled guilty. Fitzkee
explained that he advised Jamison to enter an open guilty plea
because, based on his knowledge of Jamison’s prior record, he
9 thought Jamison would be better off with the court determining
the sentence than accepting the four to eight years that the
prosecutor was offering. Fitzkee also testified that he first
learned that Jamison was subject to a mandatory minimum
sentence of five years at the sentencing hearing, after Jamison’s
plea had already been accepted by the court. Fitzkee swore he
never received the letter from the prosecutor stating that a
mandatory minimum of five years in prison applied and he never
discussed the mandatory with Jamison.
The PCRA court ruled that Jamison could not establish
that his guilty plea was constitutionally infirm. The court first
concluded that, as a matter of state law, the prosecutor’s
statement that the Commonwealth would be filing “a mandatory
on the drug case” and the writing that the Commonwealth would
recommend a sentence of “4-8 yrs w/ mand” were sufficient
notice to inform Jamison of the Commonwealth’s intent to seek
10 a mandatory minimum sentence. The court also concluded that
even if notice was insufficient, the guilty plea was nevertheless
valid because Jamison knew that he had no agreements
regarding sentencing, and that the maximum sentence for his
crimes was 20 years imprisonment and a fine of $200,000. The
PCRA court concluded that this knowledge, and the fact that
Jamison was sentenced to a term less than that 20 year
maximum sentence, was sufficient for a knowing, voluntary and
intelligent guilty plea. The Superior Court affirmed the PCRA
court’s denial of relief on different grounds without discussing
the PCRA court’s opinion. The Superior Court held that
Jamison could not obtain relief because he did not plead actual
innocence as required under state law. See 42 Pa. C.S.A. §
9543(a)(2)(iii).
B. Proceedings in the District Court.
Jamison then filed a pro se habeas petition under 28
11 U.S.C. § 2254, challenging the voluntariness of his guilty plea.
Jamison’s petition was referred to a Magistrate Judge who held
a hearing. During that hearing, Jamison testified that, prior to
pleading guilty, he was not aware that he was subject to a
mandatory minimum sentence of five years.4
The Magistrate Judge appropriately analyzed Jamison’s
claim under the deferential standard required by the Anti-
Terrorism and Effective Death Penalty Act (“AEDPA”). Under
AEDPA, a federal habeas court can not grant relief after a state
court has rejected the petitioner’s claim on the merits unless the
state court’s decision was “contrary to,” or an “unreasonable
application of,” clearly established Supreme Court precedent.
28 U.S.C. § 2254(d).5 The Magistrate Judge concluded that
although no Supreme Court case precisely held that a defendant
4 Trial counsel died before the hearing in front of the Magistrate Judge. 5 For a more thorough discussion of AEDPA’s standard of review, see Mateo v. Superintendent S.C.I. Albion, 171 F.3d 877(3d Cir 1999) (en banc).
12 must be informed of an applicable mandatory minimum
sentence in order for a guilty plea to survive constitutional
scrutiny, Jamison’s claim for relief was nevertheless clearly
governed by the Supreme Court’s decision in Boykin v.
Alabama, 395 U.S. 239 (1969).
The Magistrate Judge ruled that the state courts had
unreasonably applied Boykin in concluding that Jamison’s plea
was based on a knowing, voluntary and intelligent waiver of his
constitutional rights. The Magistrate Judge concluded that
Jamison’s plea was not knowing, voluntary and intelligent
because Jamison was not given adequate notice of the five year
mandatory minimum sentence he was subject to before he
decided to plead guilty. The court reasoned that a “mandatory
minimum sentence is an important circumstance that a defendant
should be aware of and take into consideration in determining
whether to plead guilty.” The Magistrate Judge also found that
13 neither the statement by the prosecutor at the change of plea
hearing that the Commonwealth would file a mandatory on the
drug case, nor the statement that the Commonwealth would
recommend “4-8 yrs w/mand” were sufficient to inform Jamison
that he would have to be imprisoned for at least five years if he
pled guilty.
As noted at the outset, the District Court rejected the
Magistrate Judge’s recommendation. That decision was based
on the fact that no Supreme Court case has precisely held that a
defendant must be informed of the applicable mandatory
minimum sentence and the state court decisions were not
contrary to, or an unreasonable application of, clearly
established federal law.
This appeal followed.6
6 Jamison’s habeas petition included a claim for relief based on ineffectiveness of counsel. However, the Magistrate Judge ruled that that claim was procedurally defaulted, and Jamison does not appeal that ruling.
14 II. Jurisdiction and Standard of Review
The Anti-Terrorism and Effective Death Penalty Act, 28
U.S.C. 2254(d), provides that:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Thus, Jamison can not obtain relief in federal court unless
the state court decisions denying relief were “contrary to clearly
established Federal law, as determined by the Supreme Court of
the United States,” or “involved an unreasonable application of
clearly established Federal law, as determined by the Supreme
15 Court of the United States.” 28 U.S.C.A. § 2254(d)(1). Jamison
contends that his guilty plea was not knowing and intelligent
because he was not told that he was subject to a mandatory
minimum prison sentence of five years prior to pleading guilty.
We conclude that Jamison’s claim is governed by Boykin
v. Alabama, 395 U.S. 239 (1969) and its progeny just as the
Magistrate Judge ruled. There, the Supreme Court held that
courts may not accept a guilty plea without first determining, on
the record, that the guilty plea was the result of a knowing, and
intelligent act done with sufficient awareness of the relevant
circumstances and likely consequences. The Court explained:
[w]hat is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought.
Id. at 243-44; see also Brady v. United States, 397 U.S. 742,
749 (1970).
16 In Boykin, the trial court accepted the defendant’s guilty
plea to common-law robbery without asking the defendant any
questions regarding the plea or the defendant’s understanding of
the consequences of pleading guilty. On appeal, the Supreme
Court reasoned that since a guilty plea constitutes a waiver of
several fundamental rights, the validity of the waiver can not be
presumed from a silent record. Boykin, 395 U.S. at 243. The
Court noted:
A majority of criminal convictions are obtained after a guilty plea. If these convictions are to be insulated from attack, the trial court is best advised to conduct an on the record examination of the defendant which should include, inter alia, an attempt to satisfy itself that the defendant understands the nature of the charges, his right to a jury trial, the acts sufficient to constitute the offenses for which he is charged and the permissible range of sentences.
Id. at 244, n 7.
The Supreme Court reaffirmed Boykin in Brady v. United
17 States. There, the Court stated that “[w]aivers of constitutional
rights . . . must be knowing, intelligent acts done with sufficient
awareness of the relevant circumstances and likely
consequences.” 397 U.S. at 748 & n.6. Similarly, in Henderson
v. Morgan, 426 U.S. 637 (1976), the Court invalidated a
defendant’s guilty plea because he was not informed that the
intent to cause death was an element of the offense to which he
pleaded guilty. In doing so, the Court reiterated that a defendant
“must be informed of the consequences of his plea.” 426 U.S.
at 650 (White, J., concurring) (citing to Boykin, 395 U.S. 238).
Here, without discussing the impact of Boykin or any of
its progeny, the District Court concluded that Jamison’s claim
was not governed by any clearly established federal law because
no Supreme Court case has specifically held that a defendant
must be informed of a mandatory minimum sentence prior to
18 pleading guilty. However, that view of the AEDPA standard of
review is myopic and constrained.
AEDPA’s standard of deferential review is clearly forged
from a respectful balance of the limitations imposed by
considerations of comity on the one hand, and a recognition of
the crucial role of federal courts under our ordered system of
liberty on the other. In her concurring opinion in Williams v
Taylor, Justice O’Connor explained:
W hen federal judges exercise th eir federal-question jurisdiction under the “judicial Power” of Article III of the Constitution, it is “emphatically the province and duty” of those judges to “say what the law is.” Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803). At the core of this power is the federal courts’ independent responsibility - independent from its coequal branches in the Federal Government, and independent from the separate authority of the several States - to interpret federal law. A construction of AEDPA that would require the federal courts to cede this authority to the courts of the States would be inconsistent with the practice that federal judges have traditionally
19 followed in discharging their duties under Article III of the Constitution. If Congress had intended to require such an important change in the exercise of our jurisdiction, we believe it would have spoken with much greater clarity than is found in the text of AEDPA.
529 U.S. 362, 378-79 (2000).
If we were to uphold the District Court’s view of how
precisely a Supreme Court decision must resolve a given issue
under AEDPA, only Supreme Court holdings arising from the
identical presentation of a given legal issue would constitute
“clearly established law.” This would collapse the dual
“unreasonable application of” and “contrary to” prongs of §
2254(d) into a single inquiry. If “clearly established” means the
Supreme Court must have previously addressed the identical
presentation of a given issue, any state court decision that does
not follow that holding would necessarily be one that is
“contrary to” that Supreme Court decision.
20 Moreover, we have never interpreted the standard of
review in § 2254 to suggest that Congress intended habeas
review to turn on whether the Supreme Court had previously
decided an issue in a case involving a fact pattern that is
identical to the facts underlying a habeas petitioner’s claim for
federal relief. For instance, in resolving claims of ineffective
assistance of counsel, we have not applied AEDPA in a manner
that suggests that its deferential standard of review turns on
whether the Supreme Court has considered the precise act or
omission alleged to constitute deficient performance of counsel
under the Sixth Amendment. See Moore v. Morton, 255 F.3d
95, 107 (3d Cir.2001). (“Supreme Court precedent counsels that
the reviewing court must examine the prosecutor's offensive
actions in context and in light of the entire trial, assessing the
severity of the conduct, the effect of the curative instructions,
and the quantum of evidence against the defendant.”) (internal
21 citations omitted).
Thus, despite the seemingly limitless combinations of
acts and omissions that could give rise to a claim of ineffective
assistance of counsel, the quality of counsel's representation is
measured by the standard set forth in Strickland v. Washington,
466 U.S. 668 (1984), and its progeny. See, e.g., Florida v.
Nixon, 543 U.S. 175 (2004) (applying Strickland to a claim that
defense counsel's failure to obtain defendant's express consent
to a strategy of conceding guilt at the guilt phase of capital trial
constitutes ineffective assistance of counsel); Williams v.
Taylor, 529 U.S. 362 (2000) (finding that Strickland constitutes
clearly established law to decide petitioner's claim that his
lawyer failed to investigate and to present substantial mitigating
evidence to jury in death penalty claims); Hill v. Lockhart, 474
U.S. 52 (1985) (Strickland constitutes established law in
deciding petitioner's claim that his lawyer provided ineffective
22 assistance of counsel for guilty plea).
Thus, we have never required the kind of precision and
exactitude endemic in the District Court's application of
AEDPA. Boykin, no less than Strickland, is established
Supreme Court precedent, and both cases set forth controlling
principles. Strickland proclaims that the Sixth Amendment
affords an accused a right to effective assistance of counsel and
holds that the right is violated when a defendant is prejudiced by
counsel's deficient performance. Boykin affirms that the
constitutional rights that are relinquished by a guilty plea can not
be waived unless the waiver is knowing, voluntary, and
intelligent. As we have already noted, the Court has explained
that the Boykin inquiry “demands the utmost solicitude of
courts” to ensure that the defendant “has a full understanding of
what the plea connotes and of its consequences.” Boykin, 395
U.S. at 243-44.
23 Thus, absent “a record adequate” to determine that a
guilty plea is a knowing, voluntary and intelligent waiver, a
reviewing court can not conclude that the guilty plea complied
with constitutional safeguards. Id. at 244. Accordingly, just as
we do not look beyond Strickland and its progeny for
established federal law in Sixth Amendment challenges to
assistance of counsel, we need look no farther than Boykin, and
its progeny to find clearly established federal law here.
Jamison’s challenge to his guilty plea goes to the heart of the
principle that was clearly established in Boykin, Brady, and
Henderson.
III. Application.
Thus, we must determine if the state courts’ rejection of
Jamison’s claim was either “contrary to” Boykin, or “an
unreasonable application” of its requirement that a guilty plea be
a knowing, voluntary and intelligent act, undertaken with
24 sufficient awareness of the relevant circumstances and likely
consequences. See Boykin, 395 U.S. at 242.
A state court decision is “contrary to . . . clearly
established federal law” when it is “‘diametrically different,’
‘opposite in character or nature,’ or ‘mutually opposed’” to a
holding of the Supreme Court of the United States. Williams v.
Taylor, 529 U.S. at 406 (citation omitted). This happens when
the state court ignores or misapprehends clear precedent and
when it “confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a result different from [Supreme Court]
precedent.” Id. The Supreme Court has held that the “state
court need not even be aware of our precedents, ‘so long as
neither the reasoning nor the result of the state-court decision
contradicts them.’” Mitchell v. Esparza, 540 U.S. 12, 16 (2003)
(per curiam) (quoting Williams v. Taylor, 529 U.S. at 405-6).
25 In Mateo, we explained that an “‘unreasonable
application of’ clearly established Supreme Court precedent
encompasses [the following] three distinct scenarios:
(1) the state court extends Supreme Court precedent to cover a new factual context in which application of the precedent is unreasonable; (2) the state court unreasonably fails to apply a precedent in a factual context that warrants its application; or (3) the state court applies the correct precedent, but unreasonably in light of the facts of the case before it. Of course, all three scenarios require a definition of “unreasonable”; in the Fourth Circuit's view, the habeas court must inquire whether “the state courts have decided the question by interpreting or applying the relevant precedent in a manner that reasonable jurists would all agree is reasonable.
Mateo, 171 F.3d at 887 (citing Greenv. French, 143 F.3d 865,
870 (4th Cir. 1998).
Here, the state courts did not ignore or misapprehend
Boykin, because they clearly understood that guilty pleas must
26 be knowing, intelligent and voluntary. Moreover, as the District
Court noted, no Supreme Court case expressly mandates that
defendants be informed of mandatory minimum sentences
before tendering a guilty plea. However, the state courts did
unreasonably fail to apply Boykin in a factual context that
warrants its application,” and therefore those courts
unreasonably applied that clearly established Supreme Court
precedent.
The Pennsylvania courts ruled that Jamison was aware of
the statutory maximum and knew that the prosecutor would file
“a mandatory.” They therefore concluded that Jamison’s plea
was therefore knowing, voluntary and intelligent. As noted
earlier, at the guilty plea hearing, the prosecutor stated that the
Commonwealth would be filing “a mandatory in the drug case,”
and the Commonwealth stated in writing that it planned to seek
27 a sentence of “4-8 years.” The state courts concluded that this
was sufficient notice of the mandatory minimum to allow for a
valid guilty plea. B e f ore discussing w hy this w a s a n
unreasonable application of Boykin, and its progeny, we must
first explain the sentencing scheme in Pennsylvania, as it differs
dramatically from the more familiar federal scheme.
Pennsylvania “employs an indeterminate sentencing scheme.”
Commonwealth v. Kleinicke, 895 A.2d 562, 572
(Pa.Super.2006). Pursuant to that scheme, when a sentencing
court imposes a sentence of imprisonment, it must impose both
a minimum term of imprisonment and a maximum term. Id. See
also, 42 Pa.C.S.A. § 9756(a). The minimum period of
incarceration must not exceed one half the maximum. 42
Pa.C.S.A. §§ 9756(b), 9757.7 Once the defendant completes the
7 Such a scheme is called “indeterminate” because the term of imprisonment a defendant will actually serve is not determined. The defendant (and the sentencing court for that matter) knows only that he/she will be incarcerated for the minimum term and can
28 minimum term of incarceration, it is up to the Parole Board to
determine when (and if) he/she will be released before serving
the maximum sentence imposed by the court.8 Thus, the length
of the defendant’s incarceration is not known “at the moment of
sentencing because the defendant may ultimately serve only the
minimum, the maximum or any sentence between the two.”
Kleinicke, 895 A.2d at 572. Statutes imposing mandatory
minimum sentences such as the one Jamison was subject to
“only . . . limit the sentencing court's discretion as to the
minimum term, not as to the maximum term,” id., which must
always be set by the Legislature. See, e.g.,18 Pa.C.S.A. §§
potentially remain in prison until the maximum term is reached. 8 The situation is slightly different if the maximum term of incarceration is less than two years as the sentencing court then retains discretion to release the defendant and the defendant does not come within the purview of the Parole Board. See Commonwealth v. Romolini, 557 A.2d 1073 (Pa. Super. 1989) (“it is the province of the Common Pleas judge whether to grant or deny parole on a . . . sentence of less than two years duration.”) (citing 61 P.S. § 314, and Commonwealth v. Fair, 497 A.2d 693 (Pa. Super. 1985)).
29 1103,1105 (setting maximum terms for felony, misdemeanor
and summary offenses).
Although Jamison was informed of the 20-year maximum
sentence that his plea subjected him to, nothing on this record
establishes that anything he was told by the prosecutor or the
court (either separately or cumulatively) provided Jamison with
sufficient information about the mandatory minimum sentence
his plea exposed him to. We realize, of course, that the exact
length of any mandatory minimum sentence may depend on
facts that are not known when a defendant changes his/her plea.
Here, for example, it was not clear at the change of plea hearing
whether Jamison faced a three year mandatory minimum
sentence, or a five year mandatory minimum. As is frequently
the case, that could not be determined until a subsequent
sentencing hearing. However, it was known that a finding of
30 guilt would expose him to a mandatory minimum sentence of
either three or five years depending on his prior record, and he
was never informed of that. Thus, when the trial court accepted
Jamison’s plea, Jamison had not been told that he would have to
receive a sentence of at least three years imprisonment, and that
he would have to serve at least five years if he had a prior
conviction for a controlled substance.
The prosecutor’s statement, “filing mandatory,” was far
too opaque a reference to inform Jamison that he may have to
serve at least five years in prison if he pled guilty. Moreover,
that statement was not made to Jamison, it was not part of the
on-the-record colloquy, and Jamison was never afforded an
opportunity to respond to it before pleading guilty. The
representation that the Commonwealth would recommend a
sentence of “4-8 years w/mand” suffers from the same infirmity.
31 To the extent that it provided Jamison with notice that a
mandatory would be filed against him, it was incorrect and
misleading information. Given the indeterminate sentencing
scheme requiring a maximum that is at least twice the minimum
as we have described, it is just as likely that this vague reference
refers to a minimum of four years and a maximum of eight; a
term of incarceration that the sentencing court was not even
authorized to impose under Pennsylvania law given Jamison’s
prior controlled substance conviction.
If we can assume Jamison understood anything based on
that representation, it is that his mandatory sentence would be
less than the five years that the court actually had to impose. As
noted earlier, the confusion was compounded by the court telling
Jamison that “sentencing is basically up to the court,” even
though the court had no authority to impose any sentence less
32 than five to ten years in prison.
We have already explained that Boykin and its progeny
require that an accused be aware of the “direct consequences”
of a guilty plea. Brady v. United States, 397 U.S. at 755
(emphasis added) (citation omitted); see also Steele v. Murphy,
365 F.3d 14, 17 (1 st Cir. 2004) (defendant need only be “fully
aware of the direct consequences” of guilty plea) (citing Brady).
We therefore reject the view that knowledge of the statutory
maximum is sufficient to allow an informed choice to plead
guilty. It is at least as important for the accused to be accurately
informed of the minimum amount of incarceration that he/she
will have to serve pursuant to a guilty plea. Boykin, explicitly
included “the permissible range of sentences” as one of the
factors that defendants must be aware of before pleading guilty.
Boykin, 395 U.S. at 244, n.7 (advising trial courts to conduct
33 colloquy to satisfy itself that “the defendant understands . . . the
permissible range of sentences.”) (citation omitted). Clearly, a
defendant must know the maximum sentence that could result
from a guilty plea. See Dalton v. Battaglia, 402 F.3d 729, 733
(7 th Cir. 2005) (“We can imagine no consequence of a
defendant's guilty plea more direct, immediate, and automatic
than the maximum amount of time she may serve as a result of
her plea.”). The mandatory minimum is no less direct a
consequence of a guilty plea. In fact, the mandatory minimum
sentence may be far more relevant than the theoretical maximum
because that is rarely imposed. Here, for example, counsel for
Appellee conceded at oral argument that she knew of no
instance of a maximum sentence being imposed during her four
years as a prosecutor.9
9 Moreover, the maximum sentence derived from totaling statutory maximums is often as fanciful as it is theoretical. For example, in United States v. Powell, 269 F.3d 175 (3d Cir 2001 ), the defendant was informed that the maximum period of incarceration was 830
34 The importance of the mandatory minimum prison term
to making an informed decision is self evident here. Jamison
testified at his evidentiary hearings that if he had known he was
subject to a mandatory minimum term of imprisonment of five
years, he would not have pled guilty to the charge, and nothing
on this record undermines that testimony. In fact, the testimony
is bolstered by Jamison’s decision to reject the Commonwealth’s
offer of four to eight years, and neither the PCRA court nor the
Magistrate Judge expressed reservations about Jamison’s candor
after he testified in support of his claim for relief. Thus, there
is a distinct possibility that the failure to apprise Jamison of the
mandatory minimum sentence affected his willingness to plead
guilty when he otherwise would not have.
years. Although the court was not imposing a sentence pursuant to an indeterminate sentencing scheme, the 830 year maximum is nevertheless instructive of the extent to which the authorized maximum frequently bears no relationship to the sentence that is imposed.
35 The Commonwealth cites our decision in Parry v
Rosemeyer, 64 F.3d 110, 114 (3d Cir. 1995), and notes that we
there stated: “a maximum prison term and fine for the
challenged offense are the only direct consequences of a state
court plea.” Appellee’s Br. at 12. The District Court also cited
this excerpt from Parry in concluding that Jamison did not have
to be informed that he would have to serve at least 5 years in
prison if he pled guilty. However, the references to this isolated
statement in Parry misrepresent the analysis there. Parry was
sentenced for violating the terms of a probationary sentence that
had been imposed following his guilty plea. After being
sentenced on the violation, he sought habeas relief arguing that
his guilty plea was not knowing, voluntary and intelligent
because he had not been informed that he could be incarcerated
for violating his probation. On appeal, we had to decide
“whether a judge's or defense counsel's failure to advise a
36 defendant offering a plea of guilty that, if he or she is sentenced
to probation, his or her probation can be revoked if it is violated
and a term of imprisonment substituted in its place. . .”. Id. at
111. In that context we explained: “Due process does not . . .
require that a defendant be advised of adverse collateral
consequences of pleading guilty, even if they are foreseeable.”
Id. at 114 (emphasis in original). We thus held that
incarceration for a violation of the probation that is imposed
pursuant to a guilty plea is a collateral consequence and due
process does not require that an accused be informed of all that
can happen upon violating probation before entering a guilty
plea. It was in that context that we made the statement the
Commonwealth has seized upon. However, the Commonwealth
ignores the fact that, in context with holding that imprisonment
for violating a term of probation was a collateral consequence
of a guilty plea, we also explained that “[a] plea of guilty will
37 not be found to be unknowing and involuntary in the absence of
proof that the defendant was not advised of, or did not
understand, the direct consequences of his plea.”. Id. at 114
(citing Brady v. United States, 397 U.S. at 755). We then
stated,“‘[t]he only consequences considered direct are the
maximum prison term and fine for the offense charged.’” Id.
We cited our decision in United States v. Salmon, 944 F.2d
1106, 1130 (3d Cir. 1991), cert. denied, 502 U.S. 1110 (1992),
for that proposition. When Parry and Salmon are considered in
context, it is clear that our holdings there are consistent with our
analysis of Jamison’s due process claim here.
In Salmon, like Parry, we held that a defendant need not
be informed of the collateral consequences of a guilty plea. A
defendant in Salmon argued that a prior conviction could not be
used to enhance a subsequent sentence under the Guidelines
38 because, when he pled guilty to the earlier offense, he did not
know that the plea could be used to enhance punishment for any
subsequent crime under the applicable provisions of the
Sentencing Guidelines. Not surprisingly, we rejected the
argument. In doing so, we reiterated that “[d]ue process
requires . . . a defendant be advised of and understand the direct
consequences of a plea.” 944 F.2d at 1130 (emphasis in
original) (citing Brady, 397 U.S. at 755.). We added that “the
only consequences considered direct are the maximum prison
term and fine for the offense charged.” Id. We explained that
“the effect of a conviction on sentencing for a later offense
under a career offender law is such a collateral consequence.”
Id. However, it can not seriously be argued that serving five
years in prison pursuant to a mandatory minimum sentence is a
“collateral” consequence of a guilty plea and not a direct result
39 of it.10 Indeed, as we have already explained, knowing the
minimum length one will have to remain in prison is of perhaps
greater importance than the maximum sentence.11
Finally, we conclude that Jamison’s failure to withdraw
his guilty plea at the sentencing hearing has no bearing on
whether his plea was knowing, voluntary and intelligent when
entered. Based on our review of the transcript of the sentencing
hearing, we do not believe that Jamison was afforded an 10 In neither Salmon nor Parry did we have occasion to consider whether a mandatory minimum is a direct consequence of a guilty plea. 11 We also reject the District Court's reliance on Voils v. Hall, 151 F.Appx 793, 795 (11th Cir. 2005). We have steadfastly attempted to discourage District Courts as well as attorneys from relying on nonprecedential opinions of this court. See Third Circuit Internal Operating Procedure 5.7 (indicating that “the court by tradition does not cite to its not precedential opinions as authority”). See also, Fallon Elec. Co. v. Cincinnati Insur. Co., 121 F.3d 125, 128 n. 1 (3d Cir. 1997) ("[We] do not regard such opinions as binding precedent."). We do not accept these opinions as binding precedent because, unlike precedential opinions, they do not circulate to the entire court before they are filed. Accordingly, not every judge on the court has had an opportunity to express his/her views about the opinion before it is filed. Here, the District Court relied on a decision that is not only not precedential, it is not even a decision of a panel of this court. Accordingly, we will not explain why we think that decision is ill- advised and poorly reasoned.
40 adequate opportunity to withdraw his plea after the court told
him about the actual length of the mandatory minimum
sentence. Jamison was never asked whether he had any
questions about the applicable mandatory minimum sentence or
whether knowledge of it changed his mind about pleading
guilty.
Under these circumstances, this record does not establish
the knowing, voluntary, and intelligent guilty plea required by
Boykin, and the state courts’ rulings to the contrary was an
unreasonable application of clearly established Supreme Court
Conclusion
For the reasons set forth above, we reverse the District
Court’s denial of relief and we will remand to the District
Court with instructions to issue a conditional writ.