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United States v. Cannon

decided: April 21, 1977.

UNITED STATES OF AMERICA EX REL. GEORGE H. HEALEY, JR., PETITIONER-APPELLEE,
v.
JOSEPH G. CANNON, WARDEN, ILLINOIS STATE PENITENTIARY, RESPONDENT-APPELLANT



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 74-C-3046 - Hubert L. Will, Judge.

Fairchild, Chief Judge, Sprecher and Wood, Circuit Judges. Wood, dissenting.

Author: Sprecher

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, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (1970). We affirm.*fn1

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 DuPage County in January 1970, during which petitioner took the stand and testified regarding the homicide.*fn2 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,*fn3 or alternatively, that he was provoked at the time of the incident.*fn4 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,*fn5 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. ยง 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, 9 L. Ed. 2d 770, 83 S. Ct. 745 (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, 7 L. Ed. 2d 473, 82 S. Ct. 510 (1962); Kercheval v. United States, 274 U.S. 220, 71 L. Ed. 1009, 47 S. Ct. 582 (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, 92 L. Ed. 309, 68 S. Ct. 316 (1948); DeMeerleer v. Michigan, 329 U.S. 663, 67 S. Ct. 596, 91 L. Ed. 584 (1947). The Brady trilogy*fn6 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, 77 L. Ed. 158, 53 S. Ct. 55 (1932); Brady v. United States, 397 U.S. 742, 25 L. Ed. 2d 747, 90 S. Ct. 1463 (1970); McMann v. Richardson, 397 U.S. 759, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (1970). In the guilty plea context, a lawyer need not give wholly accurate advice in order to render effective assistance; he ...


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