UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
August 21, 1984
BROOKS ROGERS, PETITIONER-APPELLANT,
JACK DUCKWORTH, WARDEN AND INDIANA ATTORNEY GENERAL, RESPONDENTS-APPELLEES.
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 82-C-561 -- Allen Sharp, District Judge.
Before POSNER and FLAUM, Circuit Judges, and GORDON, District Judge.*fn*
GORDON, District Judge. Brooks Rogers filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.The District Court for the Northern District of Indiana denied the writ. Mr. Rogers contends that his plea of guilty was involuntary and, therefore, invalid. The denial of the petition will be affirmed.
On September 9, 1978, Mr. Rogers' girlfriend, Terrye Curtis, and her brother, John White, were involved in a minor car accident in the parking lot of a restaurant in Indianapolis. Carl Reed, a witness to the accident, exchanged sharp words with Ms. Curtis and her brother. There may also have been physical contact. After reportedly stating that she would return with her man to settle the argument, Ms. Curtis and her brother left the scene.
About 20 minutes later, Ms. Curtis returned to the restaurant with her mother, her brother and Mr. Rogers. Mr. Reed ran when he saw the car enter the parking lot. A witness reported hearing someone in the car say, "The big one, get the big one." Mr. Rogers stepped out of the car and shot the fleeing Mr. Reed in the back. Mr. Reed was taken to a hospital emergency room where he was pronounced dead.
Mr. Rogers, Ms. Curtis and Ms. Curtis' mother and brother were indicted for Mr. Reed's murder. The disposition of the charges against the latter two parties is not in the record. During plea negotiations, the prosecutor insisted that since he intended to try Mr. Rogers and Ms. Curtis together, he would accept a plea bargain only if agreements were reached with both defendants. Under the terms of the plea bargain reached by the parties, Mr. Rogers agreed to plead guilty to a charge of murder, with the state recommending a 45-year sentence; Ms. Curtis agreed to plead guilty to the lesser charge of manslaughter, without any sentence recommendation.
Appearing before the state court on July 9, 1978, the date previously set for trial, Mr. Rogers and Ms. Curtis, represented by separate counsel, moved to change their pleas to guilty. The state court questioned Mr. Rogers at length to assure that his plea was voluntary. Mr. Rogers stated that he had seen the indictment and knew what the charge was. The court explained that by pleading guilty, Mr. Rogers was waiving his constitutional rights to trial by jury, confrontation of witnesses, compulsory process, protection against self-incrimination, and appeal. Mr. Rogers stated that he understood that his plea of guilty constituted a waiver of these constitutional rights.
Mr. Rogers told the court that he understood the agreement he had made with the prosecutor. Asked what his attorney had told him regarding the statutory penalties for murder, Mr. Rogers twice replied, "they offered sixty and forty." At another point he stated, "To tell the truth, I don't know -- under the law -- a life sentence." The state judge explained to Mr. Rogers that 30 years was the "presumptive" sentence, but that statement was inaccurate. The "presumptive" sentence for murder under Indiana law was 40 years. Sentences as high as 60 years or as low as 30 years are allowed depending on the existence of aggravating or mitigating factors.
In the course of the hearing, Mr. Rogers informed the judge that his plea was motivated by his desire to aid Ms. Curtis. Denying that he signed the plea agreement of his own free will, Mr. Rogers explained that the prosecutor would not agree to reduce the charge against Ms. Curtis unless he pleaded guilty to murder: "In other words, they won't let her have a bargain unless I go along with it. That's a threat in one way of speaking -- in order to give her some time."
Mr. Rogers rarely gave direct answers to the judge's questions, seeking instead to focus the change of plea hearing exclusively on the difficulty of his situation with respect to the plea bargain. He did, however, admit that he shot the victim and expressly affirmed his intention to plead guilty:
THE COURT: You do wish to plead guilty.
MR. ROGERS: I signed the bargain -- the plea bargain. If I have to go to trial, I don't know.
THE COURT: What?
MR. ROGERS: If I had the choice of going to trial, I don't know whether --
THE COURT: If you had the choice of going to trial? You do still have that right and we have the jury waiting to come in here if you wish to go to trial.
MR. ROGERS: I'll let it stand -- I signed it.
THE COURT: You do not wish to proceed with the trial and you wish to plead guilty to murder?
MR. ROGERS: I signed the plea bargain.
THE COURT: In doing this, you understand you have the right to go ahead with a trial?
MR. ROGERS: Yes.
THE COURT: And you still wish to proceed with the plea bargain??
MR. ROGERS: That's right.
THE COURT: Do you think it is in your best interest and the best interest of Terrye Curtis to proceed with the plea bargain?
MR. ROGERS: In hers, mine don't count too much.
THE COURT: Do you think it is in your best interest??
MR. ROGERS: Yes ma'am.
Appellant's Appendix, pp. A-19 - A-22.
Following this colloquy, a police officer, Louis Christ, recited the circumstances relating to the crime which the state would seek to prove if the case were tried. Mr. Rogers did not dispute Officer Christ's account but questioned his failure to make any reference to a beating which Ms. Curtis and her brother, Mr. White, had allegedly suffered shortly before the shooting. Ms. Curtis, who was present at the hearing, confirmed Officer Christ's version of the events.
Mr. Rogers' and Ms. Curtis' attorneys then stated to the court that their clients' interests would not be served by going to trial. Both defendants reaffirmed their desire to plead guilty. The court then accepted the defendants' guilty pleas.
About three weeks thereafter, at the sentencing hearing held on July 31, 1980, Mr. Rogers objected to Ms. Curtis receiving a jail term and aired at length his concern that the victim's family would unjustly blame Ms. Curtis for the murder. Mr. Rogers again admitted shooting the victim but nonetheless attempted to withdraw his guilty plea, apparently because of his concern that Ms. Curtis' involvement in the shooting had been exaggerated:
MR. ROGERS: What I told him, that the only thing that I was really interested in was the truth of the whole matter and if you get this boy's mother here and she learn the truth about what happened so everybody wouldn't be blaming somebody that didn't do it, I would sign their agreement, which like I told the Prosecutor in the beginning, it the truth come out that the other people who said sign the agreement, but I don't want nobody doing time for something I did and that girl done everything possible to stop me and there's no reason why the boy's mother shouldn't know that she did that and I blame her, she hasn't told me nothing. (Appellant's Appendix, p. A-29).
MR. ROGERS: All right, where are the people that is involved? We'll talk it when she know the truth about the thing, I'll accept the bargain. (Appellant's Appendix, p. A-31).
THE COURT: Well, Mr. Rogers, I'm going to ask you one last time; do you wish to maintain your plea of guilty and accept the recommendation of the State for forty-five years?
MR. ROGERS: Naw, I'm going to trial. Then we'll have all them people come in here and tell what they want to tell, that way. Nobody seems to want to bring them in and discuss it without a trial, so let's go to trial. (Appellant's Appendix, p. A-39).
The sentencing judge then stated her view that Mr. Rogers was "playing games with our law system" and refused to allow the guilty plea to be withdrawn. The court also remarked that the sentence received by Ms. Curtis was not relevant to Mr. Rogers' plea. Acting on the presentence report and the prosecutor's recommendation, the court imposed a 45-year sentence.
VALIDITY OF THE GUILTY PLEA
By pleading guilty, a criminal defendant waives certain constitutional rights. In Boykin v. Alabama, 395 U.S. 238 (1969), the Supreme Court held that a guilty plea is constitutionally invalid unless the court satisfies itself on the record that the defendant has voluntarily and intelligently waived his rights. The voluntariness of a guilty plea must be determined in the totality of circumstances. Brady v. United States, 397 U.S. 742, 749 (1970).
Mr. Rogers contends that his guilty plea was coerced by the prosecutor's refusal to reduce the charge against Ms. Curtis unless he pleaded guilty to murder. Plea-bargaining is "an essential component of the administration of justice." Santobello v. New York, 404 U.S. 257, 260 (1971). In persuading a defendant to waive his right to trial, a prosecutor may exert any lawful pressure available, including threats of heavier charges if the defendant does not plead guilty. Bordenkircher v. Hayes, 434 U.S. 357 (1978). In Bordenkircher, the Court reserved judgment on "the constitutional implications of a prosecutor's offer during plea bargaining of adverse or lenient treatment for some person other than the accused." 434 U.S. at 364 n.8.
Consistent with the other circuits that have decided the question, we hold that guilty pleas induced by threats or promises respecting third parties are not per se invalid, but the court must exercise special care in determining the voluntariness of such pleas. United States v. Castello, 724 F.2d 813, 815 (9th Cir. 1984); United States v. Usher, 703 F.2d 956 (6th Cir. 1983); Harman v. Mohn, 683 F.2d 834, 837 (4th Cir. 1982); United States v. Nuckols, 606 F.2d 566, 569 (5th Cir. 1979); United States v. Tursi, 576 F.2d 396, 398 (1st Cir. 1978). Because an accused may be influenced by threats to prosecute a third party regardless of the merits of the charges against the third party, prosecutors who use third party leverage will be held to a high standard of good faith. United States v. Nuckols, supra.
Mr. Rogers argues that the involuntary character of his plea is apparent from the plea bargain itself. He contends that at age 56, he obtained no advantage by accepting a 45 year sentence in order to avoid exposure to the 60 year maximum sentence and that, in any case, he would not have received a more severe sentence upon conviction after trial. That Mr. Rogers received no benefit from the bargain is irrelevant, however, since the consideration he sought and received in return for his plea was not more favorable treatment for himself but rather for Ms. Curtis.
We are unable to find any support for the petitioner's claim that the prosecution's threat to try Ms. Curtis on an aiding and abetting murder charge was fraudulent or in bad faith. There was evidence that Ms. Curtis stated that she would get her man to settle the argument over the car accident. She left and returned shortly thereafter with Mr. Rogers. A witness reported someone in Ms. Curtis' car saying, "The big one -- get the big one" just before Mr. Rogers shot the victim. We cannot say that the threatened murder charge was so groundless as to be fraudulent or in bad faith. It is significant that Ms. Curtis' attorney accepted the plea agreement and told the court that a trial on the murder charge would not be in his client's best interest. Since the prosecutor could have tried Ms. Curtis on the murder charge, it was proper in the context of plea negotiations for him to offer not to prosecute her on the murder charge in return for Mr. Rogers' plea.
As additional evidence that his plea was coerced, the defendant points to passages in the transcript of the hearing in which he indicated to the court that he was pleading guilty only because Ms. Curtis would otherwise receive more severe treatment. It is not surprising that the defendant was unhappy with his predicament. The difficulty of his strategic position, however, was not caused by any unlawful coercion by the prosecutor but rather derived from the defendant's having shot a man in the back. A plea agreement is not involuntary simply because a defendant would prefer not to have to choose between distasteful alternatives. A plea is sufficiently voluntary if the defendant understands his alternatives and affirms to the court his intention to plead guilty. By that standard, Mr. Rogers' plea was voluntary.
The defendant next argues that his plea was invalid because he did not understand the nature of the charge against him and the permissible range of penalties. Mr. Rogers was not only represented by counsel but also had personally participated in plea negotiations with the prosecutor. He told the court at the change of plea hearing that he had read the indictment and knew with what he was charged. The court mentioned several times that Mr. Rogers was pleading guilty to murder. In our view, the record adequately establishes Mr. Rogers' fair understanding of the charge against him.
It is not significant that the state court judge incorrectly informed Mr. Rogers that the presumptive sentence for murder was 30 years. Mr. Rogers was prepared to accept a 45-year sentence. The court's incorrect statement could only have prejudiced him if he had relied on it in deciding not to plead guilty and thereby unwittingly subjected himself to a possibly greater sentence after trial. Mr. Rogers twice stated that he understood the sentence possibilities to be 40 and 60 years, the actual presumptive and maximum sentences under Indiana law. He also signed a document stating that his attorney had informed him that the law provided a 30-year presumptive sentence. While the 30-year sentence was actually a minimum rather than a presumptive sentence, the defendant does not explain how he was misled by this error. State sentencing schemes are often complex, and mastery by a criminal defendant is not to be expected. We believe that Mr. Rogers was sufficiently aware of the relevant sentencing options to have been able to make a voluntary guilty plea.
Finally, Mr. Rogers argues that he should have been allowed to withdraw his guilty plea when he attempted to do so at the sentencing hearing. It is within the trial court's discretion to permit withdrawal of a guilty plea for a "fair and just" reason. United States v. Thompson, 680 F.2d 1145, 1150 (7th Cir. 1982). The burden of showing that withdrawal is justified rests with the defendant. Id.
At the sentencing hearing, Mr. Rogers again admitted that he had shot the victim. The state had already kept its bargain with Mr. Rogers by reducing the charges against Ms. Curtis to manslaughter and making no recommendation regarding her sentence. The transcript shows that Mr. Rogers was disappointed that Ms. Curtis had received a jail term and that he wished to withdraw his plea in order that witnesses might testify as to Ms. Curtis' non-involvement in the murder. The testimony given at Mr. Rogers' trial would have no effect on Ms. Curtis' conviction. The district court properly exercised its discretion in refusing to allow withdrawal of the guilty plea.
The other issues raised by the defendant are without merit. Therefore, the judgment of the district court denying the petition for a writ of habeas corpus is affirmed.