Jesse Coy Kimbrough v. Dr. George J. Beto, Director, Texas Department of Corrections

GODBOLD, Circuit Judge

(dissenting):

With deference to my colleagues I must dissent from their conclusion on the voluntariness of the guilty plea. In this particular instance I am unable to accede to the one-two combination of first declining to disturb the factual determinations because of the plainly erroneous rule and the deference given to credibility findings of the trial judge, and then on the basis of that conclusion declining to review an error of law.

In the narcotics case appellant’s father employed to defend him a Dallas attorney, described by the habeas judge as “one of Texas’ leading lawyers in defense of criminal cases.” This senior attorney associated in the defense Robert Caraway, a younger attorney who shared offices with him and whose criminal experience was limited. The senior attorney remained in close .contact with the case and consulted and advised with Caraway about it. The district attorney proposed a negotiated plea of guilty with concurrent sentences of fifteen, fifteen and ten years. The proposal was discussed among appellant and both defense attorneys. The attorneys thought the proposal fair and advised appellant to plead guilty, and he agreed to do so. The agreement was communicated to the district attorney.

Appellant’s case was set for trial on a non jury day, at which time his agreed plea was to be entered. Several unrelated cases were set the same day for the same purpose. Because of the agreement the district attorney had no witnesses present. When appellant reached the courthouse his father, believing that the state did not have enough evidence to convict him, advised him not to plead guilty. The senior attorney was not present. Appellant told Caraway that he had changed his mind about pleading guilty. Caraway conveyed the information to the district attorney. At intervals during the calling of the docket the district attorney and the defense counsel had several conversations.

Appellant, his father, and Caraway all say that the district attorney stated that if appellant did not go through with the bargain to take a plea he would have appellant reindicted as an habitual criminal. Appellant’s past record was such that he was subject to the Texas habitual statute under which, if convicted, a life sentence was mandatory. Under the charges against appellant he was subject to two to twelve years on the burglary charge and five years to life on each narcotics charge,1 but the possible life sentences were not mandatory.

There followed discussions among appellant and his father and Caraway, and between Caraway and the district attorney. Caraway describes the matter in general as “quite a heated thing going on.” Appellant finally agreed again to the bargained plea and to the sentences previously agreed upon. The plea was entered, and appellant sentenced, that same day. In open court, with Caraway present, appellant was asked whether *993anyone threatened him or promised him anything to induce a plea, and he answered in the negative.

There is no doubt that the subject of reindicting appellant as an habitual criminal was discussed. The habeas judge found:

The district attorney denied that he ever told anyone that the petitioner would be so re-indicted if he did not plead guilty. He said that he never went any stronger than to say to defense counsel that he probably should have had petitioner indicted as an habitual criminal in the beginning.

The testimony of the district attorney was not quite that crystal clear. In fact, it was carefully qualified, which is understandable so many years after the event.2

The unequivocal testimony of Caraway was that the district attorney did state to him the threat to reindict appellant as an habitual criminal and that after receiving the threat he negotiated with appellant to get him to plead as previously agreed. His testimony was rejected as not credible on the ground he had forgotten what happened, or misunderstood what the prosecutor had said, and had stood silent in court at sentencing when appellant told the court there had been neither threats nor promises. (Also see note 4, infra.) Caraway testified that he thought appellant should go ahead with the plea of guilty, that appellant decided he did not want to do so, and that from hindsight he (Caraway) erred^ in “acquiescing” in and not objecting to the threat of reindictment, that in his view appellant was forced to enter the plea and he “probably helped to coerce him.”

Turning to the question of law, the district court held that even if a threat to reindict was made this did not vitiate the plea of guilty because it was not a threat of illegitimate action, citing, Lattin v. Cox, 355 F.2d 397 (10th Cir. 1966); Kent v. United States, 272 F.2d 795 (1st Cir. 1959). The principle- is erroneously applied in the case sub judice. The matter is not one of formulas or of magic words such as “illegitimate action” (presumably construed to mean a violation of criminal law). There must be analysis of the totality of circumstances to ascertain whether the appellant’s guilty plea, when entered, was the voluntary choice of a free and unrestrained will, Johnson v. Wilson, 371 F.2d 911 (9th Cir. 1967).

In every case where the defendant is considering whether to plead guilty counsel has not only the right but the obligation to advise him of the possible consequences of a trial and of other consequences, if there be any, of a not guilty plea. Cooper v. Holman, 356 F.2d 82 (5th Cir. 1966). There should be advice by the attorney “of the full measure of appellant’s potential criminal responsibility”, which includes the possibility of the prosecution bringing additional charges. Lattin v. Cox, supra, 355 F.2d at 400; Allen v. Rodriguez, 372 F.2d 116 *994(10th Cir. 1967). Weighing the alternatives, the accused may make a decision to take what he conceives to be the lesser of two evils, and the law may deem it voluntary, though it comes about at least in part through the coercion implicit in the existence of the more undesirable alternative. But in this case we know that appellant elected not to plead guilty, after having earlier agreed to do so. I am impelled to the conclusion that if a threat of reindictment was made it was with the intent and for the purpose of forcing appellant to plead guilty as agreed, which is precisely what he had said he was not willing to do. If the possibility of reindictment was in the picture it was, of course, a factor to be communicated by defense counsel to the accused as a part of the range of possible consequences, but I cannot close my eyes to the fact that, if existent, it found its origin in appellant’s unwillingness to carry out his plea bargain and was asserted as a device to force him to plead guilty. Under such circumstances the imposition of possible rein-dictment as an alternative would be duress, and a plea entered from surrender to it would not be the voluntary choice of a free will which the law contemplates.3

Since the district court applied an incorrect legal standard as a ground of its decision, I would reverse and remand for consideration of the evidence under a proper standard. On remand additional evidence should be received on the issue of voluntariness of the plea. I think the trial court was plainly erroneous and its credibility determination patently wrong. But in any event if the case is remanded for the error of law we have power under 28 U.S.C.A. § 2106 to require such further proceedings to be had as may be just under the circumstances. In reaching my conclusion I need not stand on the testimony of petitioner and his father. I consider the guarded testimony of the district attorney, the fact that indictment of appellant as an habitual criminal was discussed, and the thin line between whether the discussion was in terms of “would have him indicted” or “should have had him indicted”. I consider the unequivocal testimony of Caraway, in a context in which he was acknowledging that he viewed his own actions as not correct. This was something less than the usual credibility choice between two sharply conflicting versions. The district attorney tried in vain to convey to the trial judge that he really did not know. And when pressed by the court he sought to get the court to ask Caraway what took place. I consider also the grounds on which the habeas judge rejected Caraway’s testimony.4

The evidence which could have dissipated any doubts about whether the *995threat was made has not been heard— testimony from the senior defense attorney and long distance telephone records. Caraway testified that after the threat of reindictment was made he called the senior defense attorney in Dallas by long distance telephone and told him of the threat and asked him whether it could be carried out. As Caraway told it, the two of them discussed appellant’s criminal record, the senior attorney examined notebooks in which he kept notes on criminal law, then gave him (Caraway) citations of cases, and advised him that' appellant could be reindicted, saying “Yes, they can, they are not making idle talk, they can do what they say.” It is almost inconceivable that such a call, if made, would have been made, and such a conversation ensue, if it did ensue, unless the alleged threat had been made.

. Tex.Pen.Code Ann. art. 1397 (1959) and art. 725b § 23(1). (Supp.1968).

. First, the prosecutor testified:

I think I told Mr. Caraway probably I should have indicted him as an habitual, but after studying the thing, that the maximum was life anyhow.

Then later:

I think I told Mr. Caraway several times in our conversations, either on the telephone or when he was in Breckenridge on motions and so forth, that I probably should have indicted him as an habitual. But in view of the penalty that this particular crime carried, I didn’t see the necessity of doing it.

And later:

Your Honor, as I said, I do not recall threatening this man or through his attorney in any way with rein-dietment as an habitual. I do recall telling his attorney several times that I should have indicted him as an habitual, probably.

He was pressed by the court to express his best recollection, which was:

A. Judge, I don’t recollect whether I did or didn’t [threaten him with rein-dictment]. But my best recollection is that I didn’t.. I told his attorney I should have indicted him as an habitual.
THE COURT: Is that your best recollection? That that is as far as it went along that line?
A. Yes, sir, that is my best recollection.

. The situation is analogous to that in which a trial court, after a jury conviction, sentenced the defendant to the maximum because he insisted that he was innocent and would not accede to the court’s demand to “make a clean breast” of the crime. Thomas v. United States, 368 F.2d 941 (5th Cir. 1966). See also United States v. Wiley, 267 F.2d 453 (7th Cir. 1959) (refusal to consider probation for defendant who pleaded not guilty). In Heideman v. United States, 281 F.2d 805 (8th Cir. 1960) the petition alleged that for a relatively minor offense the prosecutor had said he would seek the most extreme penalty possible, totaling sixty years, divided into consecutive terms, which would amount to life imprisonment for the defendant, and said his recommendation on sentence would prevail, and then on the eve of trial offered a five year sentence for a plea of guilty. The court held the allegations were sufficient to require a hearing on the voluntariness of the plea.

. The transcript reveals that one of the reasons was that Caraway was “pretty good at starting everything,” had been from the law practice to the insurance business to the mortgage business and back to the law practice. This is no test of credibility. Another reason was Caraway’s failure, when the guilty plea was taken, to advise the trial judge of the alleged threat. This proves little, because Caraway makes perfectly clear that he then thought it was in petitioner’s best interest to carry out the plea bargain, but since has come to recognize that he erred in not objecting to the threat and not standing up more strongly for what petitioner himself wanted to do.