Summary
holding that a judge's involvement in plea negotiations does not automatically render the plea unconstitutional
Summary of this case from State v. MeadowsOpinion
No. 79-616
Decided July 30, 1980.
Criminal law — Plea bargaining — Trial judge's participation scrutinized.
A trial judge's participation in the plea bargaining process will be carefully scrutinized to determine if it affected the voluntariness of the defendant's plea.
APPEAL from the Court of Appeals for Mahoning County.
In 1974, the Mahoning County Grand Jury charged Albert Byrd, appellant herein, with aggravated murder (which was then a capital offense), aggravated robbery, felonious assault and rape. Byrd was on shock probation at the time on charges of uttering forged documents and processing an illegal prescription.
On October 30, 1974, Byrd pleaded guilty to an amended charge of murder, a violation of R.C. 2903.02, and aggravated robbery. As a consequence he was sentenced to an indefinite term of not less than 15 years nor more than life on the murder charge running concurrently with a term of not less than seven years nor more than twenty-five years on the aggravated robbery count. The trial judge, as a result of the guilty pleas, adjudged Byrd to be in violation of his parole and as a consequence terminated the same, and the original sentences in those convictions were reimposed.
Byrd appealed to the Court of Appeals and counsel was appointed to represent him. Counsel, however, filed a motion to withdraw which was sustained.
On April 8, 1976, Byrd filed a pro se petition for post-conviction relief which was summarily dismissed. On appeal, the Court of Appeals ordered that an evidentiary hearing be held, and on remand the trial court appointed counsel for Byrd. The evidentiary hearing was subsequently held on August 1, 1978.
In that hearing, John L. Breckenridge, Byrd's initial attorney, testified that, from the time he was charged, Byrd told him that he wanted to go to trial and "go for broke," even when Breckenridge advised that it might be wise to accept a lesser plea if offered by the prosecutor. He testified that he was not aware of Byrd's change in attitude until he was notified by the court that Byrd was appearing to plead guilty.
The relevant events that led to the guilty plea began on October 25, 1974, when a hearing was held to determine if Byrd was mentally competent to stand trial. Byrd was apparently on methadone at the time but, on the basis of a psychiatric report, the trial judge ruled that Byrd could stand trial. At the conclusion of the hearing he said to Byrd:
"All right. Now I want to say this to you, I wish you would get in touch with your parents, and have your parents get in touch with me."
According to the testimony of both Byrd's sister and mother, they met with the judge on the morning of October 29, 1974. They both testified that they did not request the meeting but rather that it was arranged by a Lieutenant Coney, a deputy sheriff. According to Byrd's sister, Coney explained that the meeting had been arranged and that they were expected to attend.
At that meeting, according to Byrd's mother:
"[T]he conversation was about Albert coming to trial; that he would be tried before a jury which would be predominantly white. There might be a few blacks, but the blacks would be persuaded, most likely, to go the way the whites would. And if he was convicted of this crime, that he would go to the chair; and that it would be wise if I could get Albert to plead guilty so that he would not get the chair."
Byrd's sister confirmed this, testifying that the judge "said that he understood the nature of the case, but that there's only so many black people that could be on a jury, and they would not let Albert go free.***
"He asked us to go back over to the jail and get Albert to sign this paper, and it would be that, you know, he wouldn't have a trial."
According to both women they did as the judge requested and went over and begged Byrd to plead guilty. Byrd's mother testified that she "told Albert about the conversation that we had and that he would probably get the chair, and that I could not go down there to Lucasville if this happened to him, and would he please do this for me as his mother."
After talking to his mother and sister, Byrd met with the trial judge in his chambers. The proceedings were recorded by a court reporter. Present at this meeting were the judge, appellant, a sheriff's deputy, a probation officer, and an assistant prosecutor. Byrd was not represented by counsel and he was not told that such representation might be advisable. Byrd's counsel, Breckenridge, was not told of the meeting until the day he testified in the hearing on post-conviction relief.
The judge took a very active role in arranging the plea bargain. In essence, he negotiated with the assistant prosecuting attorney.
In addition to negotiating the bargain, the trial judge indicated to Byrd that he thought it was a "pretty good" deaL. The judge told Byrd that if he didn't accept the deal, he would be in for a long trial which would not be "a picnic, but neither is killing somebody a picnic."
The judge also made it clear to Byrd that if there was a trial, he would decide the sentence. He said, "if a jury finds you guilty of aggravated murder then I have to determine it — I then will have to determine whether you serve life or you go to the electric chair. Now that would be something that I would have to determine on the evidence which would be submitted to me after the jury verdict."
At the October 29th meeting, the judge enlisted Lt. Coney's aid in his efforts to persuade Byrd to enter a plea. Coney was admittedly a friend of Byrd's family. It is apparent from the transcript that Coney, on the judge's request, had pressured Byrd to enter a plea prior to the meeting as well.
Twice during the meeting in chambers, the judge noted Byrd's drug problem. He said to Byrd that he was "kind of in the air all of the time" and that he was half asleep. The judge urged him to get off drugs while in jail.
The next day Byrd appeared before the court to plead guilty. He was represented by Floyd Hanes, Breckenridge's law partner.
Byrd had no chance to talk to either attorney about the events of October 29th. He and Hanes merely went through the motions of pleading guilty.
After the post-conviction hearing, the Court of Common Pleas dismissed Byrd's petition, finding that the judge's discussion with Byrd, his sister, and mother, merely informed them of the situation, was not coercive and did not lead to an involuntary guilty plea. The court also found that Byrd had not been denied counsel in violation of his constitutional rights.
The Court of Appeals affirmed.
The cause is now before the court pursuant to allowance of a motion for leave to appeal.
Mr. Vincent E. Gilmartin, prosecuting attorney, and Mr. John A. Kicz, for appellee.
Mr. Gary L. Van Brocklin, for appellant.
Appellant contends that the Court of Appeals should be reversed because his guilty plea was in violation of the Fifth Amendment right against self-incrimination and because it resulted from an unconstitutional denial of his right to counsel.
Appellant contends in part that the judge's involvement in the plea negotiation process rendered his plea involuntary and violative of the Fifth Amendment. Because we dispose of the case on this ground, we do not reach the merits of appellant's other claims.
The Fifth Amendment states that no person "shall be compelled***to be a witness against himself." This clause was held applicable to the states through the Fourteenth Amendment's Due Process Clause in Malloy v. Hogan (1964), 378 U.S. 1. Section 10, Article I of the Ohio Constitution, in the same language, provides the same guarantee.
In Kercheval v. United States (1927), 274 U.S. 220, at page 223, the court stated:
"A plea of guilty differs in purpose and effect from a mere admission or an extra-judicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences."
In Machibroda v. United States (1962), 368 U.S. 487, the court expanded on this statement, saying, at page 493, that "[a] guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void." See, also, Brady v. United States (1970), 397 U.S. 742; Santobello v. New York (1971), 404 U.S. 257; State v. Griffey (1973), 35 Ohio St.2d 101.
A judge's participation in the actual bargaining process presents a high potential for coercion. The defendant often views the judge as the final arbiter of his fate or at the very least the person in control of the important environment of the courtroom. He may be led to believe that this person considers him guilty of the crime without a chance of proving otherwise. He may infer that he will not be given a fair opportunity to present his case. Even if he wishes to go to trial, he may perceive the trial as a hopeless and dangerous exercise in futility.
As the court stated, at page 254 in United States, ex rel. Elksnis, v. Gilligan (S.D.N.Y. 1966), 256 F. Supp. 244:
"The unequal positions of the judge and the accused, one with the power to commit to prison and the other deeply concerned to avoid prison, at once raise a question of fundamental fairness. When a judge becomes a participant in plea bargaining he brings to bear the full force and majesty of his office. His awesome power to impose a substantially longer or even maximum sentence in excess of that proposed is present whether referred to or not. A defendant needs no reminder that if he rejects the proposal, stands upon his right to trial and is convicted, he faces a significantly longer sentence. One facing a prison term, whether of longer or shorter duration, is easily influenced to accept what appears the more preferable choice. Intentionally or otherwise, and no matter how well motivated the judge may be, the accused is subjected to a subtle but powerful influence."
Due to the high potential for coercion when the judge participates in the actual negotiation process, a number of courts have indicated that such participation is per se in violation of the Fifth Amendment. E.g., Gilligan, supra; State v. Buckalew (Alaska 1977), 561 P.2d 289; People v. Orin (1975), 13 Cal.3d 937, 120 Cal.Rptr. 65; People v. Clark (1973), 182 Colo. 201, 515 P.2d 1242; Fermo v. State (Miss. 1979), 370 So.2d 930; State v. Cross (1977), 270 S.C. 44, 240 S.E.2d 514. See, also, Gallagher, Judicial Participation in Plea Bargaining: A Search for New Standards, 9 Harvard Civil Rights Law Review 29. Similarly, Fed.R.Crim.P. 11(e) forbids judge participation in the bargaining process.
In Griffey, supra, this court stated, at page 112, that the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty (Approved Draft, 1968), should serve as a guide in connection with guilty pleas.
Section 3.3(a) of the ABA standards states: "The trial judge should not participate in plea discussions." The commentary to Section 3.3(a), at page 73, states in part:
"There are a number of valid reasons for keeping the trial judge out of the plea discussions, including the following: (1) judicial participation in the discussion can create the impression in the mind of the defendant that he would not receive a fair trial were he to go to trial before this judge; (2) judicial participation in the discussions makes it difficult for the judge objectively to determine the voluntariness of the plea when it is offered; (3) judicial participation to the extent of promising a certain sentence is inconsistent with the theory behind the use of the presentence investigation report; and (4) the risk of not going along with the disposition apparently desired by the judge may seem so great to the defendant that he will be induced to plead guilty even if innocent."
Although this court strongly discourages judge participation in plea negotiations, we do not hold that such participation per se renders a plea invalid under the Ohio and United States Constitutions. Such participation, however, due to the judge's position in the criminal justice system presents a great potential for coerced guilty pleas and can easily compromise the impartial position a trial judge should assume.
As a consequence we hold that a trial judge's participation in the plea bargaining process must be carefully scrutinized to determine if the judge's intervention affected the voluntariness of the defendant's guilty plea. Ordinarily, if the judge's active conduct could lead a defendant to believe he cannot get a fair trial because the judge thinks that a trial is a futile exercise or that the judge would be biased against him at trial, the plea should be held to be involuntary and void under the Fifth Amendment and Section 10, Article I of the Ohio Constitution.
The undisputed evidence in the case at bar shows that the judge's conduct in all probability led appellant to believe he could not get a fair trial. The judge clearly expressed his views, through Lt. Coney, a friend of Byrd's family, through appellant's mother and sister, and in his own remarks.
By using Byrd's mother and sister, the judge conveyed the seeming futility of the appellant's situation. The circumstances in which the judge made his remarks on October 29th were highly coercive as well. The judge negotiated for appellant and then recommended that the appellant make the plea. He was joined by three other figures of authority in his remarks. It appeared as if the judge had joined forces with the prosecution in deciding that appellant was guilty. Any belief that a fair trial could not be had was strengthened by the judge's remarks regarding sentencing and the problems involved in having a jury trial.
Intense pressure was placed on appellant in these meetings, designed to make him realize that a guilty plea was his best course. The effect of this pressure was further exacerbated by two other factors. Appellant's methadone addiction, twice noted by the judge, could easily have amplified the coercive effect of the judge's conduct. In addition, appellant never had the opportunity to consult with an attorney regarding the judge's remarks. Although we do not reach the Sixth Amendment issue, the inability to discuss the events of October 29th with counsel makes the judge's remarks all the more damaging.
A review of the record leads this court to the inescapable conclusion that because of the trial judge's active efforts to secure appellant's plea, that plea must be held to have been given involuntarily. Accordingly, appellant's guilty plea is void under the United States and Ohio Constitutions.
The judgment of the Court of Appeals is reversed.
Judgment reversed.
HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.