United States of America Ex Rel. George H. Healey, Jr. v. Joseph G. Cannon, Warden, Illinois State Penitentiary

553 F.2d 1052, 1977 U.S. App. LEXIS 13728

• Court: Court of Appeals for the Seventh Circuit
• Decided: April 21, 1977
• Docket: 76-1946
• Status: Published

Opinions

SPRECHER, Circuit Judge.

The State of Illinois, respondent-appellant, appeals from an order granting petitioner-appellee a writ of habeas corpus. We consider in this appeal one of the two issues upon which the decision of the district court is based: whether petitioner was so misadvised by trial counsel regarding the consequences of his guilty plea that the plea must be invalidated because unintelligently given under the standards articulated in McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). We affirm.¹

I

Petitioner was charged with the murder of his wife, and entered a plea of not guilty upon the advice of his appointed counsel. His jury trial commenced in the Circuit Court of DePage County in January 1970, during which petitioner took the stand and testified regarding the homicide.² Petitioner did not deny committing the acts which caused the death of his wife, but proceeded to trial upon the theory that, at worst, his conduct constituted voluntary manslaughter under Illinois law, because he lacked the requisite mental state to commit murder due to his intoxication,³ or alternatively, that he was provoked at the time of the incident.⁴ In support of these theories, petitioner sought to introduce the testimony of a psychiatrist regarding petitioner’s mental state, in the form of an answer to a hypothetical question based on events surrounding the homicide. Petitioner also proffered the testimony of two priests concerning his mental state and degree of intoxication immediately prior to the incident. Following an admissibility hearing in chambers, at which the judge, both counsel, the bailiff, the court reporter and petitioner were present, the trial court refused to permit the introduction of this evidence. Moreover, the court refused a tendered jury instruction on the elements of the lesser included offense of voluntary manslaughter.

Petitioner’s counsel requested a brief recess in order to confer with both petitioner and his father. The attorney advised cessation of the trial proceeding by the entry of a plea of guilty to murder. In response to repeated inquiries concerning the possibility of raising error in the trial court’s rulings on appeal following a guilty plea, both petitioner and his father testified that the attorney assured them that all questionable points were adequately preserved and were cognizable by an appellate court, and that petitioner’s legal rights on appeal remained unchanged whether he pleaded guilty or was adjudged guilty by a jury.

Petitioner’s counsel testified regarding his advice to petitioner during this conference that:

The defendant inquired of me whether or not the possibility that the Judge ruled in error would be preserved for appeal,— that ruling would refer to both the hypothetical and the ruling on the instruction — and I indicated that if the Judge’s ruling in fact was in error, notwithstanding a guilty plea, it was my personal opinion that a reviewing Court would review the issue, and the father and the defendant extracted assurances from me, although of course all I could do was give them what was my opinion of the law.

Following this conference, the proceeding resumed in chambers and petitioner, accompanied by his father and his attorney, entered a plea of guilty to murder. The trial court thoroughly examined petitioner concerning his change of plea,⁵ and subsequently sentenced him to serve a term of 40 to 75 years imprisonment.

The conviction and sentence remained undisturbed following an appeal which challenged only the excessiveness of the sentence imposed, People v. Healey, 132 Ill.App.2d 190, 267 N.E.2d 753 (1971), and leave to appeal that decision was denied by the Illinois Supreme Court.

Petitioner sought post conviction relief in the Circuit Court of DuPage County, alleging inter alia that his guilty plea was not intelligently given because made in reliance upon the erroneous advice of his appointed counsel. The court, after conducting an evidentiary hearing denied relief. The Illinois Appellate Court affirmed, holding in relation to petitioner’s allegation of constitutional inadequacy of his trial counsel that:

As to the allegation of improper advice at the time the change of plea was discussed, defendant asserts that he was assured by counsel that the psychiatric testimony and manslaughter instruction issues would not be waived by a plea of guilty. Our review of the record leads to the conclusion that even if this advice was erroneous it was harmless and did not result in substantial prejudice to defendant’s rights since the proof of defendant’s guilt was overwhelming. The validity of the plea is unaffected by this advice.

People v. Healey, 23 Ill.App.3d 214, 220, 318 N.E.2d 89, 94 (1974). Leave to appeal this decision was denied by the Illinois Supreme Court.

His available state remedies thus exhausted, petitioner filed a pro se petition seeking habeas relief under 28 U.S.C. § 2254. Counsel was appointed to represent petitioner, and after determining that the necessity for holding another evidentiary hearing was obviated by the development of material facts in the state proceedings, Townsend v. Sain, 372 U.S. 293, 312-14, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), the district court granted relief, based on its findings that petitioner’s guilty plea was rendered unintelligent, and therefore invalid, by the misstatements of counsel with respect to the effect of a guilty plea on appellate rights, and that petitioner’s right to a public trial was infringed by the trial court in conducting in-chambers proceedings. Respondent has appealed.

II

Because a plea of guilty absolutely waives the constitutional protections which insulate the accused and stands as a grave admission that the accused has transgressed the law, it accords with due process only if voluntarily and intelligently given. 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). An intelligent plea is the culmination of a rational decision-making process, in which the accused assesses the numerous factors which bear upon his choice of whether to formally admit his guilt or to put the State to its proof. The plea must represent the informed, self-determined choice of the defendant among practicable alternatives. Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948); DeMeerleer v. Michigan, 329 U.S. 663, 67 S.Ct. 596, 91 L.Ed. 584 (1947). The Brady trilogy⁶ holds that a plea is deemed an intelligent determination of the defendant if it is given with the assistance of competent counsel. A defendant is not exempt from making the decision of whether to plead guilty merely because the choice is a difficult one; but a guilty plea cannot be a conscious, informed choice if the accused relies upon counsel who performs ineffectively in advising him regarding the consequences of entering a guilty plea and of feasible options. Hammond v. United States, 528 F.2d 15 (4th Cir. 1975); Colson v. Smith, 438 F.2d 1075 (5th Cir. 1971).

Petitioner’s contention that he was denied the effective assistance of counsel in his decision to enter a guilty plea, thereby invalidating the plea as unintelligently given, raises in the first instance questions of fact. What assistance and advice was actually afforded the accused in aid of his assessment of the feasible alternatives, and whether the accused in fact premised his decision to waive fundamental rights and enter a plea upon the valuation articulated by his attorney of the effects and ultimate consequences of the plea, and of alternatives to pleading, involve factual inquiries. Upon independent review of the record, we affirm the district court’s factual findings.

First, any attempt to elevate to a matter of substance the inconsequential difference between the testimony of petitioner and his father and the testimony of the trial attorney regarding what advice was given Healey must fail. Petitioner maintains he was informed that none of his rights on appeal would be jeopardized by his entry of a guilty plea. Respondent asserts the advice was that if the trial court had actually committed error in its specific evidentiary rulings concerning the admissibility of psychiatric testimony and in its refusal to instruct the jury regarding voluntary manslaughter, a reviewing court would take cognizance of the error and reverse the conviction, notwithstanding the guilty plea. However, the timing of the plea belies the existence of any conflict. The plea was given toward the close of the trial, throughout which petitioner persisted in his plea of not guilty, and closely followed the particular rulings by the trial court which were the subject of counsel’s assurances to petitioner regarding appellate review. Since these particular rulings were crucial to the progress of Healey’s trial, and would have formed the basis for appellate review had he not entered a plea, we assume that these purported trial errors were the focus of petitioner’s concerns pertaining to the preservation of error for appellate review. We therefore accept as factually accurate respondent’s version of the advice given petitioner, since it does not significantly conflict with petitioner’s version.

Second, the district court’s finding that petitioner relied upon this advice regarding the consequences of entering a guilty plea in his decision to terminate the trial proceedings is incontrovertible. The record evidences keen concern on the part of both petitioner and his father that appellate review of trial errors would not be foreclosed by a guilty plea. The attorney assured them three times during the course of a brief conference that the trial court’s determination on these crucial rulings was sufficiently preserved for appellate scrutiny. Under these circumstances, respondent’s assertion that Healey’s desire to avoid imposition of the death penalty formed the sole motivation for his change of plea is incredible. The State had requested the qualification of the jury for the death penalty at the outset, and had indicated throughout the trial that it would demand the death penalty were a verdict of guilty returned. If petitioner considered tendering a plea of guilty solely to escape execution, the propitious time for doing so would have been prior to trial, rather than near its conclusion. Petitioner’s urgent concern for the preservation of trial errors for appellate review, and his decision to change his plea only after extracting assurances from his lawyer regarding the appealability of the trial court’s rulings minimize any fear of the death penalty as a motivating factor in his plea. The district court’s finding that petitioner’s reliance upon the advice of his attorney induced his plea is amply supported by the record.

This resolution of preliminary factual-matters, however, merely initiates our inquiry, for the precise question of whether a particular accused has been deprived of the effective assistance of counsel is ultimately an issue of law. The Supreme Court has repeatedly emphasized that the effectiveness of legal representation afforded criminal defendants is to be appraised by normative legal standards which, when applied in a specific factual context, yield a resolution concerning whether a particular defendant received constitutionally adequate assistance of counsel. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). In the guilty plea context, a lawyer need not give wholly accurate advice in order to render effective assistance; he need not correctly predict the admissibility of evidence or anticipate future judicial holdings. His advice, however, must be “within the range of competence demanded of attorneys in criminal cases.”⁷ McMann, supra, at 770-71, 90 S.Ct. at 1449.

Trial counsel’s advice to petitioner is grossly deficient when gauged by this standard. Illinois cases establish a clear precedent that a plea of guilty constitutes an irrevocable waiver of any infirmity which was not jurisdictional or relevant to the voluntariness of the plea. See, e.g., People v. Popescue, 345 Ill. 142, 177 N.E. 739 (1931); People v. Baxton, 10 Ill.2d 295, 139 N.E.2d 754, cert. denied, 353 U.S. 976, 77 S.Ct. 1062, 1 L.Ed.2d 1138 (1957); People v. Terry, 12 Ill.2d 56, 145 N.E.2d 36 (1957), cert. denied, 356 U.S. 942, 78 S.Ct. 785, 2 L.Ed.2d 816 (1958); People v. Deweese, 27 Ill.2d 332, 189 N.E.2d 247 (1963); People v. Dennis, 34 Ill.2d 219, 215 N.E.2d 218 (1966). Thus, any irregularities occurring during a trial were not cognizable on appeal following a guilty plea under Illinois law. Counsel’s statement that “if the Judge’s ruling in fact was in error ... a reviewing Court would review the issue,” although somewhat circumspect, is a gross misinterpretation of this precedent. Clearly, in order to determine whether a trial court’s ruling “in fact was in error,” a reviewing court would be bound to take cognizance of a claim of error in the ruling and evaluate its merits. Yet, as Illinois law so clearly provides, this opportunity for appellate review of trial errors is precisely what a defendant waives by his plea of guilty. We consider this critical misstatement of prevailing state law to a defendant on trial in a state court a “serious dereliction on the part of counsel,” McMann, supra, 397 U.S., at 774, 90 S.Ct. at 1450. Relying upon this misrepresentation of Illinois law, petitioner was deprived the occasion to “rationally weigh the advantages of [continuing his] trial against the advantages of pleading guilty,” Brady, supra, 397 U.S., at 750, 90 S.Ct. at 1470 which due process requires. His plea is therefore invalid.⁸

Respondent adverts to the fluidity of federal law regarding the effects and consequences of a guilty plea prior to the Supreme Court’s opinions in the Brady trilogy, decided some four months subsequent to the termination of petitioner’s trial. Because federal courts sometimes considered circumstances surrounding the entry of a plea in determining its validity, respondent argues that counsel’s advice to the effect that a reviewing court might be cognizant of trial errors notwithstanding the plea is reasonable. This contention is meritless. The trial rulings involved here, pertaining to instructions and evidentiary matters, are not of constitutional magnitude and therefore are not cognizable by a federal court under 28 U.S.C. § 2254. Therefore, the position espoused by federal law on this question is immaterial. Moreover, the cases decided prior to the Brady trilogy indicate that federal courts investigated only constitutional infirmities in assessing the voluntariness and intelligence of a guilty plea. See, e.g., Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956) (uncounseled defendant); Chambers v. Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940) (coerced confessions which induced and tainted subsequent guilty pleas). See also, Moreno v. Beto, 415 F.2d 154 (5th Cir. 1969); United States ex rel. McCloud v. Rundle, 402 F.2d 853 (3d Cir. 1968); Kott v. Green, 387 F.2d 136 (6th Cir. 1967); Reed v. Henderson, 385 F.2d 995 (6th Cir. 1967); Smiley v. Wilson, 378 F.2d 144 (9th Cir. 1967), all of which involved a judicial investigation of coerced confessions which purportedly induced guilty pleas. Defects neither jurisdictional nor constitutional in nature, occurring at any prior stage in the proceedings, were deemed waived in federal courts by the entry of a guilty plea. United States v. Rook, 424 F.2d 403, 405 (7th Cir.), cert. denied, 398 U.S. 966, 90 S.Ct. 2180, 26 L.Ed.2d 550 (1970); United States v. Doyle, 348 F.2d 715 (2d Cir.), cert. denied, 382 U.S. 843, 86 S.Ct. 89, 15 L.Ed.2d 84 (1965); United States ex rel. Staples v. Pate, 332 F.2d 531 (7th Cir. 1964).

We note that the trial court properly and extensively admonished petitioner prior to the acceptance of his plea. While judicial admonitions in compliance with the requirements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), aid the court in discharging its obligation to ascertain the voluntary and intelligent character of a plea, we agree with the position of the Fifth Circuit that:

[A]n equally important aspect of the courts’ responsibilities in this problem area is the protection of the accused’s right to the benefit of reasonably competent counsel in making his plea, especially when that plea is entered on advice of counsel. ... In [the Brady trilogy] it was obvious that the Supreme Court envisioned a system under which the defendant, advised by reasonably competent counsel, makes an informed and conscious choice. . . . When this system functions satisfactorily, it is both fair and reasonable to expect that a defendant who has made his choice and received whatever benefits flow therefrom be required to live by that choice. In any particular case in which the system fails, however, it is the courts’ duty to supply relief.

Colson, supra, at 1079.

In invalidating petitioner’s guilty plea, we express no opinion regarding the propriety of the trial court’s critical rulings. Whether the judge ruled correctly and would have been upheld on appeal is immaterial. Petitioner concluded his trial by the entry of a plea of guilty with the understanding that appellate review of the court’s determinations was not thereby obviated. Because he was misadvised by counsel regarding his feasible options, due process requires that the plea be vacated.

In affixing our imprimatur to the practice of invalidating guilty pleas on the basis of conversations between a defendant and his counsel, we share the concern of the district court that defendants will be encouraged to fabricate purported conversations in order to escape the consequences of a guilty plea. However, we agree that this concern is groundless in the unique factual context of this case. Petitioner, his father, and trial, counsel essentially concur in their testimony pertaining to the content of the advice afforded petitioner. The record manifests substantial evidence in support of petitioner’s claim that his plea was not intelligent because rendered upon advice of counsel which was constitutionally inadequate under the McMann standard. United States ex rel. Curtis v. Zelker, 466 F.2d 1092, 1098 (2d Cir. 1972), cert. denied, 410 U.S. 945, 93 S.Ct. 1405, 35 L.Ed.2d 612 (1973). Cf. United States ex rel. Robinson v. Housewright, 525 F.2d 988, 991-92 (7th Cir. 1975).

Because we hold petitioner’s guilty plea invalid, we do not consider whether he was deprived of the right to a public trial because the trial court accepted his plea in chambers. Accordingly, the judgment of the district court is

Affirmed.

1 . Our affirmance on this ground makes it unnecessary to review the district court’s decision that petitioner’s Sixth Amendment right to a public trial was violated by the state trial court’s action of conducting the proceedings surrounding the acceptance of petitioner’s guilty plea in chambers. Also, petitioner raised numerous other assertions of error which occurred in the state court proceedings as grounds supporting his claim for habeas corpus relief in the district court. We have reviewed these remaining contentions and are satisfied that they were properly disposed of in the memorandum and order of the district court. Therefore, we restrict our discussion here to the question of the validity of petitioner’s guilty plea.

2 . The essential facts surrounding Mrs. Healey’s death are not in dispute. Petitioner and his wife separated after 12 years of marriage, as a result of strife impelled by petitioner’s heavy drinking and mounting gambling debts. Mrs. Healey sought legal advice regarding divorce. Petitioner became despondent to the point of contemplating suicide, and immersed himself in continual drinking.

On the morning of Mrs. Healey’s death, petitioner drove to his wife’s apartment and despite her efforts to block his entrance, forced his way in after he thought he observed a man exiting quickly through the rear door. Petitioner fired several shots, one striking Mrs. Healey in the abdomen, and then pursued her through the back exit of the apartment and into an apartment occupied by a neighbor. His gun jammed, and in full view of the neighbor, he beat Mrs. Healey’s head and face with its butt until her skull was crushed.

3 . Illinois law at that time permitted a defendant charged with murder to be convicted of the lesser included offense of voluntary manslaughter where the accused’s state of voluntary intoxication was so extreme at the time of the homicide as to suspend entirely the power of reasoning. People v. Strader, 23 Ill.2d 13, 177 N.E.2d 126 (1961); People v. Hicks, 35 Ill.2d 390, 220 N.E.2d 461 (1966).

4 . Ill.Rev.Stat. ch. 38, § 9-2 provides in pertinent part;

(a) A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:

(1) The individual killed, or

(2) Another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed.

Serious provocation is conduct sufficient to excite an intense passion in a reasonable person.

Apparently, petitioner’s trial contention was that a series of provocative events incited the homicide: petitioner’s wife had taken their children and left him, moving the furniture from their apartment; she refused to consider a reconciliation and consulted an attorney regarding divorce; she was accompanied by another man in her apartment on the morning of her death, and attempted to prevent petitioner’s entry.

5 . The trial court’s questioning of petitioner is in compliance with standards set forth in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and Illinois Supreme Court Rule 402. Ill.Rev.Stat. ch. 110A, § 402.

6 . Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970).

7 . The holding of the Illinois Appellate Court that any mistaken advice afforded Healey constituted harmless error due to overwhelming evidence of guilt is erroneous. As the district court properly noted, this standard is applicable only when a verdict of guilty has been rendered and is being reviewed. The reviewing court may examine the record to determine whether the evidence is sufficient to support the verdict, despite any claim of constitutional error. In reviewing a guilty plea, however, the record is not explored for evidence supporting the defendant’s admission of guilt. Rather, the only pertinent question is whether the voluntariness of the plea or its intelligent character has been infected by constitutional error. Moreover, the harmless error doctrine is patently inapplicable to the claimed deprivation of a due process right so fundamental as the effective assistance of counsel. Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Gideon v. Wainwright, 372 U.S. 335, 340-44, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Chapman v. California, 386 U.S. 18, 43, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (Stewart, J., concurring).

8 . The fact that counsel couched his remarks in terms of an “opinion of the law,” as opposed to a guarantee that the opinion was accurate does not vitiate the constitutional deficiency of his advice to petitioner. The function of counsel is to counsel. It is precisely the superiority of training, knowledge and understanding of a lawyer that a client seeks in eliciting an attorney’s opinion regarding a legal matter. The client cannot justifiably expect a guarantee of a particular outcome; he is, however, entitled to a legal opinion which is “within the range of competence demanded of attorneys . . . ” McMann, supra, 397 U.S., at 771, 90 S.Ct. at 1449.