Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 77-C-3715 -- Alfred Y. Kirkland, Judge.
Before Pell, Sprecher, and Bauer, Circuit Judges.
In this habeas action, petitioner Joseph Cyburt seeks release from the Menard Psychiatric Center in Menard, Illinois.
The State of Illinois brought two indictments against Cyburt. The first charged that on February 5, 1973, he abducted an eight-year-old girl as she was walking to school, took her to his apartment, and forced her to engage in sexual activity with him. The second indictment charged that on February 12, 1973, Cyburt invited his sixteen-year-old half sister to his apartment and there raped her and forced her to perform oral sex on him.
The state trial court ordered a pretrial psychiatric examination of Cyburt to evaluate his competence to stand trial. The psychiatric report, dated May 10, 1973, concluded with the following diagnosis: "Personality disorder, other. Pseudo sociopathic schizophrenia.... Patient appears mentally fit for trial." In light of this report, the trial court did not order a full-blown evidentiary hearing on Cyburt's competence.
On June 28, 1973, Cyburt pleaded guilty to two counts of kidnapping*fn1 and one count of deviate sexual assault in connection with the first indictment, and to one count of rape, one count of incest and one count of deviate sexual assault in connection with the second indictment. At the guilty plea hearing, the trial judge told Cyburt that by pleading guilty he would give up his right to remain silent and his right to a jury trial, and stressed that he did not have to plead guilty. Several times during the proceedings Cyburt indicated that he did not understand the judge's admonishments. Each time this occurred, the judge offered to give Cyburt more time to decide whether he wanted to persist in pleading guilty.*fn2 The judge also indicated that he had tentatively agreed to sentence Cyburt in accordance with the recommendation promised by the prosecution. After establishing a factual basis, the judge accepted the plea. Before sentencing,*fn3 Cyburt's attorney advised the judge that as part of the plea bargain the prosecution had promised that Cyburt would be placed in a psychiatric unit immediately. The judge thereupon questioned the attorney as to Cyburt's competence to enter the guilty plea. The attorney assured the judge that he was not suggesting Cyburt was incompetent, and stated, "Your Honor, my client knows the nature of the charges and has been able to cooperate with me." Cyburt, speaking in his own behalf before sentencing, stated, "The only thing I would like to say is if I was in my right mind, I could hold out long enough and have a jury trial. But I can't go another day in the jail. I just want to go and have psychiatric treatment." The judge promptly questioned Cyburt as to his understanding of the proceedings and Cyburt responded that he did understand what had transpired.
Cyburt received concurrent sentences on the counts to which he pleaded guilty, the longest of which was for a minimum of 15 years and a maximum of 40 years in prison. He did not directly appeal. His application for post-conviction relief was denied by the Illinois Circuit Court. The Appellate Court reversed his conviction for incest but refused to disturb his other convictions.*fn4 Cyburt did not appeal this decision to the Illinois Supreme Court.
Cyburt then filed this petition for a writ of habeas corpus in the United States District Court for the Northern District of Illinois. The district court granted summary judgment in favor of the respondents, and Cyburt appealed.
Liberally construed,*fn5 Cyburt's brief raises six issues on this appeal. We may dispose of two of these quickly. First, we reject Cyburt's argument that summary judgment was inappropriate. The respondents accept Cyburt's recounting of the facts in this case. Since no genuine issue of material fact is presented, disposal of the case by summary judgment was proper. Second, we decline to consider Cyburt's complaint that the state trial court erred in not granting him a preliminary hearing on the first indictment. This argument was neither raised nor decided in the court below. See Ohio Casualty Ins. Co. v. Rynearson, 507 F.2d 573, 582 (7th Cir. 1974).
Cyburt's first argument of substance is that the state trial court should have conducted a hearing to determine his competence before accepting his guilty plea.
As a preliminary matter, the parties offer different standards of competence applicable on a guilty plea. Respondents rely on the Illinois procedural rule governing a defendant's competence to stand trial or to be sentenced. Under the Illinois rule, a person is competent to stand trial or to be sentenced unless he is unable "(1) to understand the nature and purpose of the proceedings against him; or (2) to assist in his defense." Ill.Rev.Stat. ch. 38 § 1005-2-1(a).*fn6 This is the standard of fitness for trial set forth in Dusky v. United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960), and it does not by its terms address competence to plead guilty. Cyburt argues that the Dusky standard should not govern fitness to plead guilty. Rather, he urges this court to follow the Ninth Circuit in holding a person incompetent to plead guilty "if a mental illness has substantially impaired his ability to make a reasoned choice among the alternatives presented to him and to understand the nature of the consequences of his plea." Sieling v. Eyman, 478 F.2d 211, 215 (9th Cir. 1973). The Sieling court reasoned that when a defendant pleads guilty he waives several important constitutional rights, and that it follows that his competence to waive these rights ought to be assessed "with specific reference to the gravity of the decision with which the defendant is faced." Sieling, 478 F.2d at 215. The Ninth Circuit relied on Drope v. Missouri, supra, in which the Supreme Court remarked that "one who became "mad' after the commission of an offense should not be arraigned for it "because he is not able to plead to it with that advice and caution that he ought,' " Id., 420 U.S. at 171, 95 S. Ct. at 903, quoting 4 W. Blackstone, Commentaries *24, and on Rees v. Peyton, 384 U.S. 312, 86 S. Ct. 1505, 16 L. Ed. 2d 583 (1966), in which the Supreme Court refused to allow the withdrawal of a petition for certiorari until a factual determination could be made "whether (the petitioner) ha(d) capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation...." Id. at 314, 86 S. Ct. at 1506. The District of Columbia Circuit has also adopted this position. United States v. Masthers, 176 U.S. App. D.C. 242, 539 F.2d 721, 726 (D.C.Cir.1976).
Other circuits, however, have held that the standards of competency to stand trial and to plead guilty are both governed by Dusky, supra.*fn7 In particular, the First Circuit raised a strong argument against setting two different standards of competency: with two standards, a defendant could be found competent to stand trial but incompetent to plead guilty, and such a defendant would be deprived of the advantage of bargaining for a more lenient sentence. Allard v. Helgemoe, 572 F.2d 1, 5 (1st Cir. 1978).
Although the Allard court's argument is logically persuasive, the Sieling rule also presents a strong argument in its favor.*fn8 We need not decide the issue here, however, because under either standard, Cyburt's guilty plea was properly accepted.
The Illinois trial court was constitutionally required to conduct a hearing to determine Cyburt's competence to plead guilty only if it entertained a bona fide doubt as to his competence. Drope v. Missouri, 420 U.S. 162, 172-73, 95 S. Ct. 896, 904, 43 L. Ed. 2d 103; Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L. Ed. 2d 815 (1966); Ill.Rev.Stat. ch. 38 § 1005-2-1(c). In determining whether the trial court should have entertained such a doubt, this court must review the evidence that was available to the trial court before and during the guilty plea proceedings. Drope, supra, 420 U.S. at 174, 95 S. Ct. at 905. According to the record, the state trial court had before it a psychiatric evaluation that diagnosed Cyburt as having a "personality disorder" and "pseudo sociopathic ...