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UNITED STATES v. HENRY

May 11, 1989

UNITED STATES OF AMERICA, Plaintiff,
v.
STANLEY HENRY, Defendant



The opinion of the court was delivered by: SHADUR

 MILTON I. SHADUR, UNITED STATES DISTRICT JUDGE:

 At the time relevant to this case 18 U.S.C. App. ยง 1202(a)(1) ("Section 1202(a)(1)") barred every convicted felon from being knowingly involved in any way with a firearm that had previously traveled in commerce -- by receiving it, by possessing it or by transporting it. On August 31, 1988 a jury convicted Stanley Henry ("Henry") of having violated that statute on July 16, 1986. *fn1"

  Section 1202(a) also mandated a minimum 15-year prison term (without parole) for any person who was convicted under the statute after having received three previous convictions for robbery or burglary. *fn2" Henry's presentence investigation report in this case reflects four prior Illinois robbery convictions (one of them was an armed robbery). Absent a taint in at least two of those convictions, Henry thus faces imposition of at least a 15-year custody sentence.

 Henry has filed a motion to preclude use of three of the four prior convictions for enhancement purposes. For the reasons stated in this memorandum opinion and order, this Court concludes no evidentiary hearing is necessary and grants Henry's motion in part and denies it in part. However, the partial granting of the motion does not spare Henry from the statutory enhancement.

 Validity of the Challenged Convictions

 Each of the three convictions now targeted by Henry was the product of a guilty plea:

 
1. a 1970 robbery conviction, Information Number 70-192;
 
2. a 1973 robbery conviction, Information Number 73-705;
 
3. a 1975 robbery conviction, Information Number 75-1482.

 He now seeks to disavow those pleas on both constitutional and state law grounds: *fn3"

 
1. the pleas violated the Due Process Clause because they were neither voluntary nor intelligent; and
 
2. Illinois law was violated when the state courts failed to comply with Illinois Supreme Court Rule 402 ("Illinois Rule 402"), Ill. Rev. Stat. ch. 110A, para. 402.

 Each plea will be considered in turn. *fn4"

 1970 Robbery Conviction

 1. Federal Constitutional Issues

 Hill v. Lockhart, 474 U.S. 52, 56, 88 L. Ed. 2d 203, 106 S. Ct. 366 (1985), quoting North Carolina v. Alford, 400 U.S. 25, 31, 27 L. Ed. 2d 162, 91 S. Ct. 160 (1970), provides clear guidance to courts asked to analyze a guilty plea:

 
The longstanding test for determining the validity of a plea is "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." *fn5"

 Hill thus dictates a two-step inquiry:

 
1. Was the plea voluntary?
 
2. Was it intelligent?

 As to the first of those Jordan, 870 F.2d at 1316, 1989 U.S. App. LEXIS 4780, at 19, citing Brady, 397 U.S. at 755, puts the test this way:

 
A guilty plea is voluntary when it is not induced by threats or misrepresentations and the defendant is made aware of the direct consequences of the plea.

 Brady, 397 U.S. at 749 also teaches that all relevant circumstances surrounding the plea must be considered. And United States ex rel. Robinson v. Housewright, 525 F.2d 988, 991-92 (7th Cir. 1975) requires this Court to:

 
base an analysis upon objective record facts rather than upon the defendant's recital of what he now claims were his subjective mental impressions.

 But any application of the concept of voluntariness can await treatment later in this opinion, for Henry's 1970 plea fails the second inquiry mandated by Hill in any event: It was not "intelligent" in the legal sense. That conclusion merits a somewhat extended discussion.

 Boykin v. Alabama, 395 U.S. 238, 243, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969) teaches a person who pleads guilty must be apprised of his or her waiver of several constitutional rights:

 
1. the privilege against compulsory self-incrimination,
 
2. the right to a jury trial and
 
3. the right to confront one's accusers.

 To that end the record of any such plea must affirmatively disclose that the defendant entered his or her plea understandingly and voluntarily ( id. at 242; Brady, 397 U.S. at 747 n. 4). And "the question of an effective waiver of a federal constitutional right in a proceeding is of course governed by federal standards" ( Boykin, 395 U.S. at 243).

 What then must a court explain to a defendant to render his or her plea an "intelligent choice among the alternative courses of action open to the defendant" ( Hill, 474 U.S. at 56)? Boykin expressly says the court must warn the defendant, on the record, that pleading guilty means a waiver of the privilege against self-incrimination, the right to jury trial and the right to confront one's accusers. In literal terms that suggests no guilty plea can stand unless the court complies with that procedure.

 United States ex rel. Miller v. McGinnis, 774 F.2d 819, 824 (7th Cir. 1985) has delivered much the same message:

 
The state trial court also failed to inform Miller that by pleading guilty he was waiving two very important and cherished constitutional rights: first, the right to confront one's accusers, and second, the privilege against self-incrimination. "'A plea of guilty is more than a voluntary confession made in open court. It also serves as a stipulation that no proof by the prosecution need by [sic] advanced. . . .'" Boykin v. Alabama, 395 U.S. 238, 242 n. 4, 89 S. Ct. 1709, 1711-12 n. 4, 23 L. Ed. 2d 274 (quoting Woodard v. State, 42 Ala. App. 552, 558, 171 So. 2d 462, 469 (1965)). "A defendant who enters such a plea simultaneously waives several constitutional rights, including his privilege against self-incrimination, his right to trial by jury, and his right to confront his accusers. For this waiver to be valid under the Due Process Clause, it must be 'an intentional relinquishment or abandonment of a known right or privilege.'" McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 1170-71, 22 L. Ed. 2d 418 (1969) (quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938)). To ensure that a defendant waives only "known" rights or privileges, "it is well-settled that any court accepting a guilty plea must first ascertain that the defendant is fully cognizant of the fundamental constitutional guarantees which are waived upon entry of the plea." Sizemore v. District Court, 50th Judicial District, Boyle County, Kentucky, 735 F.2d 204, 206 (6th Cir. 1984). The Supreme Court in Boykin v. Alabama specifically stated, "We cannot presume a waiver of [the right to confront one's accusers and the privilege against self-incrimination] from a silent record." 395 U.S. 238, 243, 89 S. Ct. 1709, 1712, 23 L. Ed. 2d 274; see also Government of the Virgin Islands v. George, 741 F.2d 643, 649 (3rd Cir. 1984); Reeves v. Mabry, 615 F.2d 489, 491 (8th Cir. 1980). It is obvious that Miller did not and could not intentionally relinquish or abandon his right to confront his accusers or his privilege against self-incrimination since the trial court failed to advise Miller that he possessed the given right and privilege. *fn6"

 But other authority (including, it will be seen, the Supreme Court itself) does not appear to call for literal conformity to Boykin. Thus most recently Jordan, 870 F.2d 1310, 1989 U.S. App. LEXIS 4780, at 19, citing Brady, 397 U.S. at 756, has painted with a broader brush:

 
A guilty plea is intelligent and knowing when the defendant is competent, aware of the charges, and advised by competent counsel.

 Neither Jordan nor Brady seems to require the specific admonitions detailed in Boykin. However, it may be a mistake to make too much of those cases' more simplified statements -- it may be that they and Alford, 400 U.S. at 29 n. 3 presented no Boykin issue and therefore simply presumed compliance with Boykin.

 But what must be regarded as far more persuasive is the view of Boykin and the constitutional prerequisites to a valid guilty plea expressed by the authors of that opinion -- the Supreme Court itself. Some five years post-Boykin the Supreme Court proposed an amendment to Fed. R. Crim. P. ("Rule") 11 to prescribe what advice must be given a federal defendant as a precondition to a guilty plea. Its proposal in relevant part required only this (H.R. Rep. No. 94-247, 94th Cong., 1st Sess. 21-22 (1975)):

 
(c) Advice to defendant. -- The court shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, informing him of and determining that he understands the following:
 
* * * *
 
(3) that the defendant has the right to plead not guilty, or to persist in that plea if it ...

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