United States Court of Appeals,
Eleventh Circuit.
No. 94-8597.
Charlie FINCH, Petitioner-Appellant,
v.
James H. VAUGHN, Warden, Respondent-Appellee.
Oct. 31, 1995.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:93-cv-1023-RHH), Robert H. Hall, Judge.
Before TJOFLAT, Chief Judge, BIRCH, Circuit Judge, and HENDERSON,
Senior Circuit Judge.
BIRCH, Circuit Judge:
In this habeas corpus case, we determine whether a guilty plea
was knowing, intelligent and voluntary and resulted from
ineffective assistance of counsel under the Fifth, Sixth and
Fourteenth Amendments, when the petitioner pled guilty to state
narcotics charges with the understanding that his state sentence
would be concurrent with his federal sentence. The district court
denied habeas relief. We REVERSE and REMAND.
I. BACKGROUND
In September, 1988, petitioner, Charlie Finch, who was on
parole for a federal sentence with approximately ten years
remaining, was arrested on state cocaine charges in DeKalb County,
Georgia. Thereafter, federal authorities filed a detainer against
him for violating his parole. Finch hired Harvey Monroe as his
defense counsel.
After selecting a jury, Monroe and the state district attorney
engaged in plea negotiations.1 These negotiations culminated in
Monroe's pleading guilty in return for a ten-year prison term to
run concurrently with his previous federal sentence. Accordingly,
a DeKalb County Superior Court judge sentenced Finch to a ten-year
term of imprisonment "concurrent with any sentence that you are
presently under, probation or parole." R1-1D-8. At Monroe's
instigation, Finch specifically questioned the state trial judge
concerning the meaning of "concurrent":
MR. MONROE: I think Mr. Finch wants to ask a question.
MR. FINCH: Something I didn't quite understand in this case,
Your Honor. Concurrent.
THE COURT: The same time. I will not make this consecutive
to anything. You serve this at the time that you are serving
any other sentence. If you get your parole revoked, this will
be served at the same time.
MR. FINCH: That means that will be concurrent with the
federal?
THE COURT: Yes, sir.
MR. FINCH: Okay.
Id. at 9 (emphasis added).
Although Finch was taken into federal custody briefly
following his plea, federal authorities returned him to state
custody that same day. Finch was sent to state prison to serve his
state sentence. His remaining federal sentence has been suspended
until his release from state custody, at which time his federal
parole will be revoked, and he will serve his federal sentence.
Thus, the parole violation had the effect of tolling Finch's
1
While Finch and his counsel anticipated going to trial, the
location of a critical prosecution witness was the impetus for a
plea bargain.
federal parole and deferring service of the entire remaining
sentence until after he completes his state term.
Following informal efforts to effectuate the state court's
concurrency stipulation as to his state and federal sentences,2
Finch sought a state writ of habeas corpus on the grounds that his
guilty plea based on a concurrent state and federal imprisonment
term was involuntary, unintelligent, and ill-counseled. An
evidentiary hearing was conducted in Baldwin County Superior Court.
Finch testified as to his understanding of his sentence as a result
of the plea bargain in response to questions by his present
appellate attorney:
Q. Mr. Finch, when you pleaded guilty in DeKalb County in
front of Judge Castellani, what was the plea bargain?
A. The plea bargain was that I pleaded guilty to ten years to
run concurrent with any previous sentence.
Q. Did anyone tell you that the Superior Court might not have
the power to enforce that sentence or effectuate that
sentence?
A. No. I was under the impression that concurrent sentence,
that's what it meant, you know, that the sentence would run
concurrent with the other.
Q. What did you anticipate would happen with your federal
sentence?
A. Well, I thought that once I got the sentence saying it
would run concurrent, then I would be released to the feds.
Q. Did that happen?
A. No, it didn't.
2
Monroe made several futile inquiries on Finch's behalf to
get federal authorities to revoke his probation. Subsequently,
present appellate counsel unsuccessfully sought state parole to
the federal detainer, and a reconstructed sentence in the trial
court that might have compelled Finch's transfer to federal
custody.
....
Q. Why did you believe your federal parole would be revoked?
Where did you get that idea that it would be promptly revoked?
A. I was under the impression that when I got a concurrent
sentence then I would be released to the federal due to the
fact that they had already lodged a detainer on me.
....
Q. [D]id anyone tell you in connection with your DeKalb County
plea or in any other connection, that the power to order
concurrency did not belong to Judge Castellani or to the State
or the D.A.?
A. No, no one told me that.
Q. You thought that if the judge designated or stipulated that
the sentences would be concurrent, they would be concurrent.
Right? You had no reason to believe otherwise?
A. That's what I thought.
R1-1H-11-12, 13 (emphasis added).
Monroe also testified at the evidentiary hearing in the state
habeas court concerning his understanding of the concurrent
sentence and the advice that he had given Finch in response to
questions from the court, the state assistant attorney general, and
Finch's present counsel:
A. In an effort to help Mr. Finch—or I thought it was to
help—Judge Castellani made his sentence run concurrent [with]
anything, any sentence he was serving. And I think his words
were whether it be parole or probation. But the problem, of
course, we all—I think we all were aware of was we didn't know
whether the federal people would take custody of Mr. Finch and
let him start serving that federal time so that the concurrent
part of Judge Castellani's sentence would have any meaning to
it. We hoped they would, but subsequently, they did not.
They merely placed a detainer with the intention of letting
Mr. Finch sit there until his State time runs out and then
taking him back into federal custody.
THE COURT: Was that a calculated risk y'all ran as a defense?
WITNESS: We were well aware of it, yes.
THE COURT: Okay. Was Mr. Finch aware of it?
WITNESS: I certainly—certainly hope so. I thought he was
aware of it.
....
Q. Was he aware that the detainer could be lodged against him
and that the sentence would be tolled until the State Court
time was served, so in effect the federal time would be
consecutive to what he was currently serving?
A. We didn't use that terminology, it would be tolled. He
knew that he owed the federal government ten years or some
part of it.
....
Q. So, but now his parole isn't revoked now?
A. Right. It isn't revoked now.
....
Q. When it is, is that sentence going to be concurrent?
A. Well, the fact—the effect of it, naturally it will not be.
....
Q. There's nothing in the transcript to suggest that anybody
indicated at least on the transcript to Mr. Finch that the
court didn't have the power to deliver the concurrent
sentence, which was the basis of the bargain he was making?
A. The question on page 8 [of the plea proceedings], the
statement by the court, line 18: "Mr. Finch, the court will
sentence you as to count two to ten years to serve. I will
make that concurrent with any sentence that you are presently
under, probation or parole."
Q. But Judge Castellani nowhere in there said, the D.A.
nowhere says and you no where [sic] says—say—I'm sorry—
A. None of us said—
Q. —that there was a big if connected to this.
A. It's not clear in the transcript, no.
....
Q. Well, do you remember ever specifically telling him that,
look, Charlie, it doesn't make any difference what Judge
Castellani provides here, you know, we're going to get up here
and talk about concurrency and it's not going to make any
difference. The D.A. is going to recommend concurrency and it
probably won't make any difference. Do you ever recall
anything like that?
A. No. What I said is we will do everything we can to get the
federal people to try to take you into custody so that this
sentence will be concurrent. That was the way we—
Q. But you never addressed it, telling him, you're sitting
down here, we'll [sic] dealing at a table where there's a very
important party not represented and not committed. You see
what I'm—you didn't tell him that whether that sentence is
concurrent or not is up to somebody that's not even here in
the courtroom? Not even in DeKalb County?
A. No. As I recall—as I recall, I told him that we
couldn't—there was no guarantee that we could make the Federal
Parole Commission do anything. That's a risk. A real risk.
And in that case, I don't recall discussing in terms of if
that happens, then your sentence won't really be concurrent.
I don't remember saying anything like that.
....
Q. Did you have any anticipation that things would happen the
way they did? Did you realistically expect that?
A. Well, we were—we had the theory, yeah, that the federal
people might not do what we thought they should do.
Q. But it wasn't substantial enough to make preliminary
inquiry? Correct?
A. (No response)
Q. I mean the fear.
A. We had a jury sitting there waiting on us.
Q. I know you probably had compulsions in other directions.
But I mean just as to the plea, not for the fire burning
across the courtroom.
A. We really didn't. We didn't do anything to check with
federal people prior to entering the plea.
Q. Are you aware that their policy in situations like this is
to have it occur exactly as it occur[red]?
A. I wasn't then.
Id. at 25-26, 27, 30, 31, 32-33, 45 (emphasis added).
Monroe testified that the plea negotiations were unanticipated
since he had come to court prepared to go to trial. Further, he
conceded that he had no experience with a defendant who had
violated state laws while on federal parole, that he was unaware of
how federal authorities might assume custody or federal policy in
such situations, and that he had no pre-plea contact with federal
parole authorities. Specifically, Monroe testified that he did not
advise Finch that his federal sentence could be tolled during his
state sentence, and that the state plea bargain for sentence
concurrency was meaningless because it depended on federal
compliance, when the government was not a party to the bargain.
The state habeas court denied relief, and the Georgia Supreme
Court declined to review the case. Finch then sought habeas relief
in federal district court. The district court adopted the report
and recommendation of a magistrate judge and denied Finch's
petition. Both the state and federal habeas courts found Finch's
plea to be constitutional because it was not induced by threat or
coercion, and they concluded that he received appropriate advice
from his attorney, because Monroe had some knowledge that there had
to be federal compliance for the concurrent sentences to be
effective. On appeal, Finch pursues his arguments that his plea,
negotiated explicitly for a state prison term concurrent with the
balance of his federal sentence, was not knowing, intelligent and
voluntary, and that he received ineffective assistance of counsel
in violation of the Fifth, Sixth and Fourteenth Amendments.
II. DISCUSSION
Our review of the voluntariness of a guilty plea and
ineffective assistance of counsel is plenary because "these issues
are mixed questions of fact and law ... subject to independent
review on appeal." LoConte v. Dugger, 847 F.2d 745, 750 (11th
Cir.), cert. denied, 488 U.S. 958, 109 S.Ct. 397, 102 L.Ed.2d 386
(1988). A guilty plea is an admission of criminal conduct as well
as the waiver of the right to trial. Brady v. United States, 397
U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970).
"Waivers of constitutional rights not only must be voluntary but
must be knowing, intelligent acts done with sufficient awareness of
the relevant circumstances and likely consequences." Id.; United
States v. Fairchild, 803 F.2d 1121, 1123 (11th Cir.1986) (per
curiam).
Reviewing federal courts "may set aside a state court guilty
plea only for failure to satisfy due process." Stano v. Dugger,
921 F.2d 1125, 1141 (11th Cir.) (en banc), cert. denied, 502 U.S.
835, 112 S.Ct. 116, 116 L.Ed.2d 85 (1991). "[W]hen it develops
that the defendant was not fairly apprised of its consequences" or
when "the defendant pleads guilty on a false premise" in the
prosecution's plea agreement, a guilty plea violates the Due
Process Clause. Mabry v. Johnson, 467 U.S. 504, 509, 104 S.Ct.
2543, 2547, 81 L.Ed.2d 437 (1984). The Court has instructed that
the "essence" of any promises that induce a guilty plea "must in
some way be made known" to the defendant. Santobello v. New York,
404 U.S. 257, 261-62, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971).
For a guilty plea to be entered knowingly and intelligently,
" "the defendant must have not only the mental competence to
understand and appreciate the nature and consequences of his plea
but he also must be reasonably informed of the nature of the
charges against him, the factual basis underlying those charges,
and the legal options and alternatives that are available. ' "
Stano, 921 F.2d at 1142 (citation omitted) (emphasis added).
Voluntariness implicates "[i]gnorance, incomprehension," and
"inducements" as well as "coercion, terror" and "threats." Boykin
v. Alabama, 395 U.S. 238, 242-43, 89 S.Ct. 1709, 1712, 23 L.Ed.2d
274 (1969); Stano, 921 F.2d at 1141. Thus, "[i]gnorance of the
consequences of a guilty plea may require its rejection." Stano,
921 F.2d at 1141 (citing Boykin, 395 U.S. at 243-44, 89 S.Ct. at
1712).
In exchange for pleading guilty on the morning of his trial,
Finch understood that his state term of imprisonment would be
concurrent with the balance of his federal sentence. This was his
"inducement" for pleading guilty. See Santobello, 404 U.S. at 262,
92 S.Ct. at 498-99. Finch, a layman, was entitled to presume that
the state was bargaining in good faith, see Meagher v. Dugger, 861
F.2d 1242, 1246 (11th Cir.1988) (per curiam), and that the
concurrent sentence provision was meaningful and would be
operative.
In addition to Monroe's counseling Finch regarding the
concurrent service of his state and federal sentences, the
transcript of the plea proceeding reveals that Finch sought further
assurance from the state court that his understanding of the
concurrent sentences was correct before pleading guilty. Thus, his
understanding of the concurrent state and federal sentences that he
would receive was reinforced by the state trial judge, who
explained to Finch that "concurrent" meant that the sentences would
be served at the same time. Finch was entitled to believe that the
state court's solemn pronouncement of a term of the plea agreement
was definitive and, consequently, that the state would effectuate
the terms of its plea bargain. See United States v. Ford, 99 U.S.
594, 606, 25 L.Ed. 399 (1878).
The advice concerning the concurrency of his state and
federal sentences given to Finch by Monroe, the state in its plea
bargain, and the state trial judge was worse than misleading, it
was erroneous. Under the principle of dual sovereignty, a
defendant may be prosecuted and sentenced by state and federal
governments if his conduct violates the laws of each sovereign.
United States v. Wheeler, 435 U.S. 313, 316-18, 98 S.Ct. 1079,
1082-83, 55 L.Ed.2d 303 (1978); United States v. Ballard, 6 F.3d
1502, 1507 (11th Cir.1993). We specifically have held that a
federal court is authorized to impose a federal sentence
consecutive to a state sentence, although the state court
explicitly made its sentence concurrent with the federal sentence.
United States v. Adair, 826 F.2d 1040, 1041 (11th Cir.1987) (per
curiam). A federal court is entitled to ignore a state court's
imposition of such a sentence because adherence would encroach upon
the federal court's sentencing authority "by, in effect,
eliminating the federal sentence." Ballard, 6 F.3d at 1509.
Additionally, a federal sentencing court is not bound by a state
plea bargain unless the federal government directly or indirectly
was involved in the state plea bargaining process. Meagher v.
Clark, 943 F.2d 1277, 1282 (11th Cir.1991); see Pinaud v. James,
851 F.2d 27, 30 (2d Cir.1988) (when "federal officials are not
parties to the state plea bargain," the federal court is not
obligated to comply with the terms of the plea agreement entered
into by the defendant and the state).
Finch not only was unable instinctively to appreciate the
allocation of state and federal prosecuting and sentencing
authority and he was given no reason to question that the two
governments would not cooperate, but also he was not informed that
established federal policy permitted a federal parole violation
warrant to suspend or toll his federal sentence so that it could be
revoked and served in full after completion of his state term of
imprisonment. Moody v. Daggett, 429 U.S. 78, 84, 97 S.Ct. 274,
277, 50 L.Ed.2d 236 (1976); Goodman v. Keohane, 663 F.2d 1044,
1046-47 (11th Cir.1981) (per curiam); Cook v. United States
Attorney General, 488 F.2d 667, 670-71 (5th Cir.), cert. denied,
419 U.S. 846, 95 S.Ct. 81, 42 L.Ed.2d 75 (1974). Thus, it was
virtually certain that Finch's state and federal sentences would be
consecutive and not concurrent.
" "[A] plea of guilty entered by one fully aware of the direct
consequences, including the actual value of any commitments
made to him by the court, prosecutor, or his own counsel, must
stand unless induced by threats (or promises to discontinue
improper harassment),misrepresentation (including unfulfilled
or unfulfillable promises), or perhaps by promises that are by
their nature improper as having no proper relationship to the
prosecutor's business (e.g. bribes).' "
Brady, 397 U.S. at 755, 90 S.Ct. at 1472 (citations omitted)
(emphasis added). Finch had a due process right to assume that the
prosecutor would recommend and the court would issue an effective
sentence. See Correale v. United States, 479 F.2d 944, 946-49 (1st
Cir.1973).
Under this controlling law, it is clear that a federal
sentencing court could not be bound by the state plea bargain that
Finch's state sentence would run concurrently with his prospective
federal sentence for violating his parole. Not only were federal
officials not parties to the plea bargain, but also effectuation of
the plea bargain would negate a federal court's sentencing
authority in contravention of dual sovereignty. Because this
erroneous advice from his attorney, the state, and the state trial
judge was the basis for Finch's guilty plea, his plea was
unconstitutionally induced in violation of his due process rights.
In analyzing inducement for his guilty plea, the state and federal
habeas courts incorrectly focused on threats or coercion and failed
to recognize the untenable sentencing information and plea bargain
provision explained to Finch from legal authorities upon whom he
was entitled to rely, his counsel and, especially, the state judge.
Thus, we conclude that Finch's guilty plea was unconstitutional
because it was not knowing, intelligent and voluntary.
Consequently, Monroe's plea negotiations and advice to Finch
concerning pleading guilty constituted ineffective assistance of
counsel. "A guilty plea is open to attack on the ground that
counsel did not provide the defendant with "reasonably competent
advice.' " Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708,
1716, 64 L.Ed.2d 333 (1980) (quoting McMann v. Richardson, 397 U.S.
759, 770, 90 S.Ct. 1441, 1448, 25 L.Ed.2d 763 (1970)); see Hill v.
Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370-71, 88 L.Ed.2d 203
(1985) (holding that, in the plea context, a habeas petitioner
establishes ineffective assistance of counsel by demonstrating that
counsel's advice and performance fell below an objective standard
of reasonableness, based upon which he pled guilty). For a guilty
plea to "represent an informed choice" so that it is
constitutionally "knowing and voluntary," the "[c]ounsel must be
familiar with the facts and the law in order to advise the
defendant of the options available." Scott v. Wainwright, 698 F.2d
427, 429 (11th Cir.1983). "The failure of an attorney to inform
his client of the relevant law clearly satisfies the first prong of
the Strickland analysis ... as such an omission cannot be said to
fall within "the wide range of professionally competent assistance'
demanded by the Sixth Amendment." Hill, 474 U.S. at 62, 106 S.Ct.
at 372 (White, J., concurring) (quoting Strickland v. Washington,
466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984)).
When negotiating the plea bargain on the morning of trial,
Monroe was prepared for trial and not sentencing. He had neither
researched the law concerning federal parole revocations nor
inquired of federal authorities concerning government policy and
procedure regarding defendants who commit state crimes while on
federal parole. The transcript of the evidentiary hearing in the
state habeas court evidences that Monroe had no experience with a
defendant who had violated state laws while on federal parole.
Significantly, he was unaware that Finch's federal sentence could
be tolled during his state incarceration, and that his state plea
bargain for state and federal sentence concurrency was meaningless
because it depended on federal compliance when the government had
not been a party to the plea bargain. Whatever risk Monroe may
have understood was involved with the concurrent sentence provision
of the plea bargain, the focus of the decisions denying habeas
relief by the state and federal habeas courts, he admittedly failed
to communicate this concern or any disclaimer regarding federal
compliance to Finch, who needed accurate sentencing advice to enter
an informed guilty plea. Defense counsel has a constitutional duty
to "know or learn about the relevant law and evaluate its
application to his or her client.... [p]articularly when a plea
bargain is discussed, and hence sentencing becomes the client's
preeminent concern." Correale, 479 F.2d at 949. Because the
record supports Finch's contention throughout his state and federal
habeas proceedings that he was induced to plead guilty by his
counsel's erroneous advice that the plea bargain would enable him
to serve his federal and state sentences concurrently, we conclude
that Monroe provided ineffective assistance of counsel by
misinforming Finch concerning the essence of his decision to plead
guilty on a basic principle of dual sovereignty and established
federal policy.
III. CONCLUSION
In this habeas case, Finch argues that his guilty plea was not
knowing, intelligent and voluntary, and that his counsel's
representation regarding the guilty plea was ineffective. The
district court used the wrong legal standards in denying habeas
relief. Accordingly, we REVERSE and REMAND with instructions to
grant Finch's petition for habeas relief and to allow him to
withdraw his plea and to proceed to trial.