Respondents Brief — Blackledge v. Allison

Supreme Court, U. §,

FILED

27 1976

IN THE MICHAEL KUDAK, JR., CLERK

Supreme Court of the Anited States

OCTOBER TERM, 1976

No. 75-1693

STANLEY BLACKLEDGE, Warden, ef al,

Petitioners,

GARY DARRELL ALLISON,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR RESPONDENT

C. FRANK GOLDSMITH, JR.

Court-appointed Counse! for Respondent

STORY, HUNTER & GOLDSMITH, P.A.

| Post Office Drawer 1330

Marion, North Carolina 28752

Telephone: (704) 652-2844

STS

Washington. OC. e CLB8 PUBLISHERS «¢ LAW PRINTING CO. « (202) 393-0625

(i)

TABLE OF CONTENTS

Page

Se SEE oc ot avec cceweeeseesucie l

CONSTITUTIONAL AND STATUTORY PROVI-

DPE 606454404048 60s eurseenees 2

RMU ee GE WEN GAD ccc cc ces scccccovcsesn 2

SUREGARY GP ATMAIIEIE ccc cece ccc ccccvcces 6

ARGUMENT

1. The habeas corpus petition sufficiently

NE OE I io oo oo coe hse ceases 7

Il. Having stated a claim for relief, respondent

was entitled to an evidentiary hearing to

prove the truth of his allegation .............. 12

Ill. A decision in Allison’s favor will be of

limited precedential value and will not

burden the state, since North Carolina now

provides for full disclosure of plea agree-

ments and their incorporation into the

SEE cds nuns vdetek tetas ueubeen esses 27

IV. Allison should not have been denied an

evidentiary hearing for his failure to submit

an affidavit from an_ incarcerated co

SEE “cbs oi bese dO aes ONES SERRE COON 32

EE o.'n @ 4066 0365s 0s 086.0450 0NK0bs bbe Od 39

APPENDIX

A. North Carolina General Statutes §§15A-

DORSET de ctewciwauceeseecdcubad ier la

i Se cn ce eewehaesakuet en Ib

C. Transcript of Negotiated Plea form ............. Ic

D. Transcript of Plea form (revised July, 1976) ....... Id

(iw

TABLE OF AUTHORITIES

Cases:

Allison v. Blackledge, 533 F.2d 894 (4th Cir. 1976)... .. 6

Anthony v. Fitzharris, 389 F.2d 657 (9th Cir.

Se UO SO SE eare re rere 18

Boyd v. Dutton, 405 U.S. 1 (1972) .......---5-- 18,27,35

Boykin v. Alabama, 395 U.S. 238 (1969) .........-. 27,28

Brady v. United States, 397 U.S. 742 (1970) 22... «ee 8

Brown v. Allen, 344 U.S. 443 (1953) 2.2... ..22 2 ee ee. 12

Bryan v. United States, 492 F.2d 775 (Sth Cir.

ne BLES SE CET ET TET Tee TCE 9 .14,15,21,29,34

Caputo v. Henderson, 541 F.2d 979 (2d Cir. 1976) ..... 37

Carnley v. Cochran, 369 U.S. 506 (1962) ..........--

Carrington v. Rash, 380 U.S. 69 (1965) ......-.....-. 34

Clayton v. Estelle, 541 F.2d 486 (Sth Cir. 1976) ....... 36

Coleman v. Wilson, 401 F.2d 536 (9th Cir. 1968) ...... 37

Covington v. Cole, 528 F.2d 1365 (Sth Cir. 1976) ..... 12,36

Crawtord v. United States, 519 F.2d 347 (4th Cir.

Peee sk cccdbuok cease 6 bee Gs e4 Re Ook 8 Ce NCES 36

Davis v. North Carolina, 313 F.2d 904 (4th Cir.

Gicies «us tks 66 ek Oe OER eS hoe ee eee 16

Del Piano v. United States, 362 F.2d 931 (3rd Cir.

PPP er err errr TT Ter eae ye ee ee 14,37

Edmonds v. Lewis, _... F.2d —. (1976) ... wee cees 36

Edwards v. Garrison, 529 F.2d 1374 (4th Cir. 1975)... 9,21,22

Fay v. Nota, 372 U.S. 391 (I9GS) 2... ce ccc cees 38,39

Fontaine v. United States, 411 U.S. 213 (1973) 2.2.2.2... 21

Frank v. United States, 50! F.2d 173 (Sth Cir.

RA ho Ok we ered oe ale aa oles ene 9,15

Frontiero v. Richardson, 411 U.S. 677 (1973) ......... 34

Gallegos v. United States, 466 F.2d 740 (Sth Cir.

DER Sohn te ay ost owe 6S we aan @ ewer eee 13,21,25

(iii)

Page

Haines v. Kerner, 404 U.S. 519 (1972) .............. 1]

Harris v. Nelson, 394 U.S. 286 (1969) .......... 8,13,33,35

Hawkins v. Bennett, 423 F.2d 948 (8th Cir. 1970) ...... 18

Hillard v. Beto, 494 F.2d 35 (Sth Cir. 1974) ...... 13,16,21

Holiday v. Johnston, 313 U.S. 342 (1941) ............ 1]

Humphrey v. Cady, 405 U.S. 504 (1971) ............. 39

Jackson v. Denno, 378 U.S. 368 (1964) .............. 27

Johnson v. Massey, 516 F.2d 1001 (Sth Cir. 1975) 2.2.0... 1]

Justice v. Texas, 522 F.2d 1365 (Sth Cir. 18,5) 2.2... 25

Kaufman v. United States, 394 U.S. 217 (1969) ...... 17,26

Lane v. Henderson, 480 F.2d 544 (Sth Cir. 1973) ....... 18

Machibroda v. United States, 368 U.S. 487 (1962). . 8,9,13,14,15,34

Macon v. Craven, 457 F.2d 343 (9th Cir. 1972) .... 13,16,22

Masciola v. United States, 469 F.2d 1057 (3d Cir.

RO. tad rare arta ah ie ee tee ar be oe 11

McCarthy v. United States, 394 U.S. 459 (1969) ...... 24,27

Moody v. United States, 497 F.2d 359 (7th Cir.

saga sales ah so eee we tat a bee 9,15

Moorhead v. United States, 456 F.2d 992 (3rd Cir.

ET regia ie ee ae co et «SO Ome 910,11,13

Paradiso v. United States, 482 F.2d 409 (3d Cir.

NS re oe ae eC AG ee be ire od 29

Raines v. United States, 423 F.2d 526 (4th Cir. .

Cg Cp OE NT Re ed te, Fie SIO EEN ag ay 37

Reed v. United States, 404 U.S. 71 (1971) ......2..... 34

Roberts v. United States, 486 F.2d 980 (Sth Cir.

i RRR ark nrg. SENS 4 Xe DR | 910,22

Santobello v. New York, 404 U.S. 257 (1971) ...... 8,283}

Schoultz v. Hocker, 469 F.2d 681 (9th Cir. 1972) ..... 13,16

Scott v. United States, 419 F.2d 264 (D.C. Cir.

aes cae re tees eae ee ee 20

(iv)

Page

Shapiro v. Thompson, 394 U.S. 618 (1969) ........... 34

Sheldon v. United States, 246 F.2d 571 (Sth Cir.

ky rhe PR ee ek eRe Pe RS ARE, Sr ee eee s

Stanley v. Illinois, 405 U.S. 645 (1972) .........0008- 34

Swanson v. United States, 303 F.2d 865 (8th Cir.

| SI RL ck 6s a ee AN, RE he i RE ete ee 10

Townsend v. Sain, 372 U.S. 293 (1963) ........... passim

United States v. Glass, 317 F.2d 200 (4th Cir.

Buse ORT ee gee ne, eee Le ee 14

United States v. Gonzalez-Herandez, 481 F.2d 650

III, Fase SC rt ioe et ie 13

United States v. Hammerman, 528 F.2d 326 (4th

Wate aes re es meee at er ae 25

United States v. Hawthorne, 502 F.2d 1183 (3d Cir.

NT ao Aaa nae ARE he A el 9,10

United States ex rel. Hill v. Ternullo, 510 F.2d 844

oe ge ES ep eee ee Oe 9 .13,16,37

United States v. Tweedy, 419 F.2d 192 (9th Cir.

DRY a eed eo Gald Aaah as wi ce Ge J ne ae aa

United States v. Valenciano, 495 F.2d 585 (3rd Cir.

ER ore ae eae De cn Sn 9 10,11,14,22

United States v. Yellow Cab Co., 338 U.S. 338

a ae GMa 9 ete gene nh +5 aR we aa aie Cans aR MENU Cy AY aR 37

Walker v. Johnston, 312 U.S. 275 (1941) ........... 15,37

Walters v. Harris, 460 F.2d YSS (4th Cir. 1972) 2 9,10,11,21,29

Wingo v. Wedding, 418 U.S. 416 (1974) .............. 36

Wren v. United States, 409 U.S. 1129 (1973) 2... 0.2.2... 29

Zekelkeyzula v. Patterson, 373 F.2d 522 (10th Cir.

os Ne Pe eS tie CE ee at deat 9 ha Rak ee eee 9 10.14,16

Statutes:

N.C. Gen. Stat. §§ 15A-1021 to 1027 (1973) ......... 2,30

- fb a. A eee ee re ere ee eee 16,17,18,19

(v)

Books:

Trebach, The Rationing of Justice (1964) ...........

Articles:

Note, The Legitimation of Plea Bargaining: Rem-

edies for Broken Promises, 11 Am. Crim. L.

eh SURED ub eee tauwdeadeeeusecus ears

Miscellaneous:

American Bar Association Project re Standards for

Criminal Justice, Standards Relating to Pleas of

Guilty (Approved Draft (1968)) ...........2205.

Page

a

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

No. 75-1693

STANLEY BLACKLEDGE, Warden, et al,

Petitioners,

GARY DARRELL ALLISON,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR RESPONDENT

QUESTION PRESENTED

In respondent’s view the question presented by the

writ of certiorari in this case should be phrased as

follows:

WHETHER A STATE PRISONER WHO AL-

LEGES THAT HIS OFF-THE-RECORD PLEA

BARGAIN WAS BREACHED BY THE STATE IS

ENTITLED TO AN EVIDENTIARY HEARING IN

FEDERAL HABEAS CORPUS, WHERE THE

ONLY INQUIRY AT TRIAL AS TO THE

5

EXISTENCE OF ANY PLEA BARGAIN WAS A

SINGLE QUESTION AS TO WHETHER ANY

‘PROMISE OR THREAT” HAD BEEN MADE TO

INFLUENCE THE DEFENDANT TO PLEAD

GUILTY.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Respondent submits that, in addition to the

provisions cited by Petitioners, the following are also

applicable to his case:

United States Constitution, article I, section 9,

clause 2:

The privilege of the Writ of Habeas Corpus shall

not be suspended, unless when in Cases of

Rebellion or Invasion the public safety may

require it.

North Carolina General Statutes, sections 15A-1021

to -1027 (1973) (reproduced in Appendix “A” to brief,

intra).

STATEMENT OF THE CASE

The statement of the facts by Petitioners is correct

so far as it goes, but the following facts are also

material to an understanding of the issues presented:

The respondent, Allison, was indicted for three

offenses: felonious breaking and entering, safe-cracking,

and possession of burglary tools (App. 9-10). At the

time of the alleged offense and the plea, safecracking

was punishable by imprisonment from ten years to life,

N.C. Gen. Stat. §1489.1: the other crimes were

punishable by a maximum of ten years’ imprisonment.

At his initial arraignment on January 24, 1972,

Allison, represented by court-appointed counsel, entered

3

pleas of not guilty in each case. During a recess,

however, he agreed to change his plea upon being

informed that his co-defendant had agreed to plead

guilty and would be available to testify against him

(App. 3). Allison therefore entered a plea of guilty to

the charge of attempted safecracking; the record does

not reflect the exact disposition of the remaining

charges, but presumably they were dismissed since they

were referred to in the “Adjudication” portion of the

plea transcript (App. 12).

The plea-taking procedure was conducted in accord-

ance with then-applicable North Carolina law, by the

Clerk’s recording the defendant’s oral answers to a

series of questions contained in a printed form (see

Appendix “B” to brief, infra). Of the thirteen

questions, the only ones arguably designed to bring to

light any plea arrangement were number eight, relating

to the maximum sentence that the offense carried, and

number eleven: “Has the Solicitor, or your lawyer, or

any policeman, law officer or anyone else made any

promise or threat to you to influence you to plead

(guilty) (nolo contendere) in this case?” Respondent’s

recorded answer to this question was “No” (App. 12).

The reverse of the plea form was headed “Adjudica-

tion,’ and consisted of printed findings of fact with

spaces for the clerk to insert the names of the

defendant and his attorney, and the offenses with

which he was charged and those to which he pled

guilty. The trial judge simply signed the form in the

space provided after reading the questions to the

defendant.

In Allison’s case, sentence was not imposed im-

mediately but was delayed until January 27, 1972,

when he was sentenced to a prison term of seventeen to

twenty-one years (App. 14). The record does not reveal

what was said by anyone at the sentencing proceeding.

His co-defendant, Dana Eugene Laster, received a

4

sentence of five to eight years (ess than the statutory

minimum), according to the allegations of respondent's

letter to the district court and Laster’s own written

statement (App. 24, 30).

Allison did not appeal his conviction (he alleged as

one of his grounds for habeas relief that he was not

informed of his right to appeal), but instead applied to

the state courts under North Carolina post-conviction

procedures, alleging that he had been told by his

attorney of a plea agreement with the state whereby he

would receive the minimum sentence of ten years in

return for his plea. Allison’s petition was denied by the

superior court on November 30, 1972, without a

hearing, and the North Carolina Court of Appeals

denied certiorari in an unpublished order dated January

16, 1973 (para. 16 of habeas corpus petition, p. 8a of

Appendix in the court below).

Allison then turned to the federal courts for relief

and on February 15, 1973, filed a verified pro se

(though apparently with some assistance from a prison

writ-writer) petition for writ of habeas corpus with the

United States District Court. In the petition, Allison

alleged that his attorney had represented to him that if

he pled guilty, he would receive only the minimum

sentence of ten years, which agreement had been

approved by the prosecutor and the judge, and that if

Allison wanted the plea to be accepted, he would have

to answer the court’s questions as the attorney

instructed. The district court, however, construed the

petition to allege only a lawyer’s erroneous prediction

and summarily dismissed it (App. 15-16). Upon

Allison’s motion for rehearing, the district judge,

apparently recognizing his error, referred the case to a

magistrate. who entered an order requiring Allison to

submit within thirty days an affidavit of the person

who Allison claimed had witnessed the attorney’s

5

promise, and other proof of his allegation. In response,

Allison wrote the district judge and requested the

court’s assistance, saying that Laster, his co-defendant,

had a statement but was unable to have it notarized

because he was incarcerated at another prison unit. A

second letter to the court claimed that Allison’s mother

had written him saying that Laster’s statement has been

destroyed by the prison notary, and that Laster had

also prepared a statement verifying the destruction of

the affidavit, but that Allison had never received the

statement. Allison asked the court to “‘check into this,”

since it was the only way he had of meeting the

magistrate’s order, and suggested that personnel at

Laster’s prison unit were attempting to hinder his

efforts to obtain relief (App. 21-22).

The district court clerk then wrote Allison and

suggested that he obtain an affidavit from anyone with

knowledge that a notarized statement had _ been

destroyed, and that he also submit, in lieu of an

affidavit, his co-defendant’s handwritten statement of

the facts, together with a detailed description of his

efforts to have the statement notarized (App. 23).

Apparently frustrated in his efforts to comply with the

court’s requests, Allison wrote the district judge some

two months later complaining of the disparity in the

sentences meted out at trial, and stating that he had

heard Laster was reluctant to make a statement for fear

of being penalized in such privileges as parole and

work-release. Laster, said Allison, should be brought to

court and examined about the matter under oath (App.

24).

Instead, the magistrate recommended that the

petition again be dismissed, concluding that Allison has

been given “ample opportunity” to support his

allegations of an unkept plea bargain, and the court

dismissed the action (App. 25-27).

6

Allison next filed a verified motion for reconsidera-

tion, in which he alleged difficulty in obtaining sworn

statements from Laster due to the “locations of

incarceration” of Laster and to “mail difficulties.”

However, said Allison, he had finally been able to

obtain a statement from his witness, and he attached to

the motion a statement, purportedly signed by Laster

and witnessed by three other persons, corroborating his

contention that his attorney had informed him of a

bargain with the judge and the prosecutor for ten years

(App. 28-30). The district judge denied the motion and

ordered the action closed, noting that instead of an

affidavit, Allison had submitted “simply an unnotarized

statement by petitioner’s co-defendant” (App. 31).

On appeal, the Court of Appeals remanded the case

to the district court for an evidentiary hearing into the

merits of Allison’s claims, holding also that a pro se

petitioner is not to be put to a greater burden than any

other plaintiff to obtain an evidentiary hearing when he

has alleged facts which, if proved, would entitle him to

relief, and that the magistrate had therefore erred in

requiring an affidavit from the prisoner’s incarcerated

witness before considering his petition for reconsidera-

tion on its merits. Allison v. Blackledge, 533 F.2d 894

(4th Cir. 1976). Upon the state’s petition, a writ of

certiorari was granted by this Court to review that

decision.

SUMMARY OF ARGUMENT

A state prisoner who alleges in a federal habeas

corpus petition that his ‘court-appointed attorney

induced his plea of guilty by representing to him that

he had secured the agreement of the judge and the

prosecutor to a lesser term of imprisonment than the

7

prisoner actually received is entitled to an opportunity

to prove his claim in an evidentiary hearing. The

requirement that he be given a hearing is not fulfilled

by the trial judge’s question at the arraignment itself as

to whether any promises or threats had influenced the

plea, particularly when the prisoner alleges that he was

instructed to answer the question in the negative in

order to have his plea accepted by the court. Such

formalistic recitations were inherently unreliable prior

to the widespread acceptance of court decisions

legitimizing plea bargaining and the institution of

procedures designed to induce full disclosure of plea

arrangements and their incorporation into the record of

the proceeding.

Since North Carolina has legislatively remedied the

former procedure affected by this appeal, a decision in

Allison’s favor will not burden the state or damage

federal-state relations.

An indigent state prisoner should not be required to

submit affidavits from others in support of his sworn

petition in order to be entitled to a hearing. Such a rule

serves no useful purpose in the ultimate resolution of

the dispute and is unfair when applied only to this

particular class of litigant.

ARGUMENT

I.

THE HABEAS CORPUS PETITION SUF-

FICIENTLY STATED A CLAIM’ FOR

RELIEF.

The writ of habeas corpus is the fundamental

instrument for safeguarding individual freedom

against arbitrary and lawless state action. Its

S

pre-eminent role is recognized by the admonition

in the Constitution that: ‘The Privilege of the Writ

of Habeas Corpus shall not be suspended... .’

... The scope and flexibility of the writ its

capacity to reach all manner of illegal detention

its ability to cut through barriers of form and

procedural mazes have always been emphasized

and jealously guarded by courts and iawmakers.

The very nature of the writ demands that it be

administered with the initiative and flexibility

essential to insure that miscarriages of justice

within its reach are surfaced and corrected.

Harris vy. Nelson, 394 U.S. 286, 290 (1969).

Imprisonment pursuant to a plea of guilty that was

induced by the unkept promise of a certain minimum

sentence may be collaterally attacked in federal habeas

corpus. Machibroda v. United States, 308 U.S. 487

(1962): Santobello v. New York, 404 U.S. 257 (1971).

Relict is granted on the theory that a plea thus induced

is deprived of its character of a voluntary admission of

guilt, an act of tree will. Machibroda, supra, 368 U.S. at

493. See generally Note, The Legitimation of Plea

Bargaining: Remedies for Broken Promises, 11) Am.

Crim. L. Rev. 771, 785-90 (1973). The standard as to

the voluntariness of guilty pleas has been stated as

follows:

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... misrepresentation (including unful-

filled or unfulfillable promises)... .

Sheldon v. United States, 246 F.2d 571. 572 n.2?

(Sth Cir. 1957), quoted with approval in Brady yp

United States, 397 U.S. 742, 755 (1970).

9

In Machibroda the alleged promise was conveyed to

the defendant by an assistant United States Attorney,

who claimed to represent the U.S. Attorney and to

have secured the trial judge’s agreement to the bargain.

The Court held that Machibroda was entitled to a

hearing on his allegations, as improbable as they were in

that particular case. The Machibroda rule has not,

however, been limited in its application to allegations of

promises made by prosecutors, judges, or law enforce-

ment officers. The representation made to a criminal

defendant by his attorney that there exists: a pre-

arranged agreement as to the sentence he will receive in

return for his plea of guilty is equally effective in

depriving a plea of its character as a voluntary act.

Claims of such representations have been held sufficient

to raise issues of fact precluding summary dismissal of

habeas corpus petitions. See, e.g., Edwards v. Garrison,

§29 F.2d 1374 (4th Cir. 1975), cert. denied, __— U.S.

_.- (1976); U.S. ex rel. Hill v. Ternullo, 510 F.2d

844 (2d Cir. 1975); United States v. Hawthorne, 502

F.2d 1183 (3d Cir. 1974); United States v. Valenciano,

495 F.2d 585 (3d Cir. 1974); Roberts v. United States,

486 F.2d 980 (Sth Cir. 1973); Walters v. Harris, 460

F.2d 988 (4th Cir. 1972) (by implication), cert. denied,

409 U.S. 1129 (1973); Moorhead vy. United States, 456

F.2d 992 (3d Cir. 1972); Zekelkevzula v. Patterson,

373 F.2d 522 (10th Cir. 1967) (per curiam). But see

Frank v. United States, 501 F.2d 173 (Sth Cir. 1974);

Moody vy. United States, 497 F.2d 359 (7th Cir. 1974);

Bryan v. United States, 492 F.2d 775 (Sth Cir. 1974).

Examination of the above-cited cases will reveal that

in each the claims raised were similar in substance to

the allegations of the petitioner in the instant case.

Thus, in Edwards the claim was that Edwards was told

of a plea bargain for twenty years, rather than the

thirty to life he received; in Jernullo the petitioner

10

claimed to have been told by his attorney that the

maximum sentence he would receive would be four

years (he received fifteen): In Zekelkevzula_ the

allegation was that the prisoner’s attorney had repre-

sented to him that a “deal” had been made for

probation: in Valenciano petitioner's attorney sup-

posedly transmitted to him the contents of an

agreement with the U.S. Attorney for concurrent

sentences with no special parole term to follow; in

Voorhead the petition alleged that Moorhead had been

assured by his attorneys that there was a “proposition”

for a suspended sentence or probation: Hawthorne

involved an attorney’s promise for a five-year sentence:

in Roberts, the prisoner, complaining of his seventy-five

year sentence, alleged that his attorney had told him

that a bargain had been struck for fifteen years; and in

Walters the petitioner alleged a bargain made through

his attorney with an Assistant U.S. Attorney for a

ten-year sentence (he received two concurrent twenty-

year terms). In each of the above cases, summary

disposition was held inappropriate.

Allison alleged in his petition that his guilty plea

“was induced by an unkept promise’ (App. 2), and

that he was led by his court-appointed counsel, M.

Glenn Pickard, to believe that Pickard had “‘talked the

case over with the Solicitor and the Judge, and that if

the petitioner would plea [sic] guilty, he would only

get a 10 year sentence of penal servitude” (App. 2-3).

Elsewhere in his petition Allison referred to the

agreement in terms of an “unkept bargain’ and a

“promise” (App. 3, 4). and claimed to have a witness

to the conversation between him and his attorney.

In dismissing Allison’s initial application, the district

court merely stated the undisputed rule that “‘[p]redic-

tions of counsel of the duration of a sentence. without

more, are not grounds for attacking an otherwise valid

plea of guilty. Swanson v. United States, 303 F.2d 865

— 7 —_ — ee

(8th Cir. 1962)’ (App. 15). See also Masciola v. United

States, 469 F.2d 1057 (3d Cir. 1972); Johnson vy.

Massey, 516 F.2d 1001 (Sth Cir. 1975) (semble). But

Allison’s claim was of more than a lawyer's mere

prediction based upon his experience in the trial of

cases or his asserted familiarity with the sentencing

habits of the particular judge involved. Allison alleged a

bargain between the prosecution and the defense for a

specified term of imprisonment in exchange for a plea

of guilty, and that the agreement was breached. Such

an allegation is easily distinguishable from precedent

such as Masciola, where “the only claim... [was] that

counsel inaccurately predicted the sentence.” 469 F.2d

at 1059. “A fundamental distinction exists between an

allegation of counsel’s erroneous prediction of sentence

as in Masciola and an allegation of a bargained sentence

as in Moorhead.” United States v. Valenciano, 495 F.2d

585, 588 (3d Cir. 1974).

Petitions of indigent prisoners proceeding pro se

under the federal habeas corpus statutes are to be

construed liberally, so as to do substantial justice.

Holiday v. Johnston, 313 U.S. 342, 350 (1941) (“A

petition for habeas corpus ought not to be scrutinized

with technical nicety. Even if it is insufficient in

substance it may be amended in the interest of

justice.”’); Walters v. Harris, 460 F.2d 988, 991 (4th

Cir. 1972). Cf. Haines v. Kerner, 404 U.S. 519, 520-21

(1972) (rule applied to prisoner's 42 U.S.C. §1983

complaint).

We’ recognize that prisoner complaints often seem

annoying and insubstantial, and that the volume of

such complaints faced by most district courts

would try the patience of Job. Job-like patience,

however, should be the judicial benchmark in this

area. Technical rigidity in reviewing pleadings must

be eschewed, and we must remain extremely

12

tolerant of the juristically unlearned as they seck

to articulate their belicf that they have sulfered

deprivations of constitutional rights.

Covington v. Cole, 528 F.2d 1365, 1373 (Sth Cir.

1976) (Goldberg, J.. in context of 42 U.S.C. §1983

action).

Judged by this standard, and construed in light of

the above-cited precedent, it is submitted that Allison's

petition was sufficient to withstand a summary adverse

adjudication.

HAVING STATED A CLAIM FOR RELIEF,

RESPONDENT WAS ENTITLED TO AN

EVIDENTIARY HEARING TO PROVE THE

TRUTH OF HIS ALLEGATION.

The beginning point of analysis in) determining

whether to grant an evidentiary hearing in habeus

FF a) alt

corpus must be Townsend vy. Sain, 372 U.S. 293

(19063). The Court in that case examined the power of

federal courts to determine issues of fact arising from

applications for relief trom state court convictions; by

“issues of fact.’ the Court meant “what are termed

basic, primary. or historical facts: facts “in the sense of

4 recital of external events and the credibility of their

narrators....” 372 U.S. at 309 n.6 (quoting from

Brown vy. Allen, 344 U.S. 443, 506 (1953)). The Court

found that such power existed.

The Court then turned to the considerations that

may make mandatory the exercise of the power of a

federal court to receive evidence:

The appropriate standard... is this: Where the

facts are in dispute, the federal court in habeas

13

corpus must hold an evidentiary hearing if the

habeas applicant did not receive a full and fair

evidentiary hearing in a state court, either at the

time of trial or in a collateral proceeding. In other

words, a federal evidentiary hearing is required

unless the state-court trier of fact has after a full

hearing reliably found the relevant facts.

373 U.S. at 312-13. See also Harris v. Nelson, 394 U.S.

286, 291 (1969) (“It is now established beyond the

reach of reasonable dispute that the federal courts not

only may grant evidentiary hearings to applicants, but

must do so upon an appropriate showing’’).

The right to an evidentiary hearing in the situation at

bar, £e, an allegation of a broken plea bargain, was

determined to exist in Machibroda v. United States, 368

U.S. 487 (1962). There the Court noted that the

. petition’s allegations of fact, which were put in issue by

the Government’s affidavit in response, related pri-

marily to purported occurrences outside the courtroom,

on which the record could cast no light. Nor, said the

Court, were the circumstances alleged of a kind that the

district judge could resolve by drawing upon his own

personal knowledge or recollection. 368 U.S. at 494-95.

Despite the lack of eyewitnesses to those occurrences in

Machibroda’s case, a hearing was required.

The courts of appeals of several circuits have reached

the same result, requiring an evidentiary hearing where

allegations of plea bargaining raise issues of fact outside

the record. See, e.g., United States ex rel. Hill v.

Ternullo, 510 F.2d 844 (2d Cir. 1975); Hillard v. Beto,

494 F.2d 35 (Sth Cir. 1974); United States vy.

Gonzalez-Hernandez, 481 F.2d 650 (Sth Cir. 1973);

Schoultz v. Hocker, 469 F.2d 681 (9th Cir. 1972);

Gallegos v. United States, 466 F.2d 740 (Sth Cir.

1972); Macon yv. Craven, 457 F.2d 343 (9th Cir. 1972):

Moorhead vy. United States, 456 F.2d 992 (3d Cir.

i4

1972): Zekelkevzula vy. Patterson, 373 F.2d 522 (1) 0th

Cir. 1967) (per curiam); United States vy. Glass, 317

F.2d 200 (4th Cir. 1963). See also cases cited in Brief

for Petitioners at 18 n.5.

Even where the petitioner's allegations are highly

improbable. a hearing has been required, to give him

the opportunity to offer supporting proof. Thus in Del

Piano v. United States, 362 F.2d 931, 933 (3d Cir.

1966), the court held: ““No matter how improbable or

unbelievable the verified allegations of the motion [to

vacate sentence} may seem, the movant cannot be

denied a hearing.” And in United States vy. Valenciano,

495 F.2d 585 (3d Cir. 1974), the court noted the

“tormidable barrier,” in light of the petitioner's answers

during the Rule 11 plea inquiry. faced by petitioner in

claiming a plea bargain, but nevertheless held him

entitled to an opportunity to prove his claims, which

were directed to evidentiary matters outside the record.

In Machibroda itself, the petitioner's claim strained

credulity, 368 U.S. at 498-501 (dissenting opinion of

Mr. Justice Clark). The majority nevertheless required a

hearing.

Cases seeming to hold otherwise can be distinguished.

hus in Brvan v. United States, 492 F.2d 775 (Sth Cir.

1974), the court held that no hearing was required

where both the defendant and his attorney had testified

“without conflict or equivocation™ in a particularly

extensive rule 1] examination that no plea bargain had

been made or promised, directly or indirectly. The

court stated, ““No per se rule can be applied, for in the

final analysis, the issue becomes one of fact. Its

resoiution necessarily depends upon what is alleged and

what is shown by the documentation of each case.”

492 F.2d at 778. Bryan had alleged that the judge in

the court below was a party to the bargain. The court

noted that ““Ja]ll of the material issues raised by Bryan

On... eee

15

ure ones the judge, who was required by section 2255

to hear the motion, could readily resolve by drawing on

his own personal knowledge and recollection.” /d. at

779. Judge Goldberg, joined by five members of the en

banc court, dissented from the denial of an evidentiary

hearing, offering a persuasive comparison of Bryan’s

allegations to those of Machibroda. Bryan was followed

in Frank vy. United States, 501 F.2d 173 (Sth Cir.

1974), a case involving similar facts (full rule 11

inquiry, including an express denial as to the existence

of any plea bargain).

Moody yv. United States, 497 F.2d 359 (7th Cir.

1974), is also distinguishable. In Moody, a federal

defendant submitted a pro se petition for reduction of

his sentence some three months after his sentencing; the

petition alleged that the plea of guilty had been coerced

by defendant’s attorney in offering a _ninety-day

sentence followed by probation, and that the judge was

“in on the deal.” In a later petition, the defendant

claimed the bargain had been for a_ nine-month

sentence. The court of appeals affirmed the district

court’s order dismissing the petition without a hearing,

concluding that Moody had not alleged “the detail

required to be alleged”’ to be entitled to a hearing. No

other reasons for the holding were furnished in the

court’s opinion. Moody is distinguishable from the case

at bar in that it presented a case where the habeas

judge could draw upon his own recollection in passing

upon the petitioner’s allegations, as could the judge in

Bryan. The decision does not stand for the proposition

that a properly pleaded claim of a broken plea bargain

would not require a hearing to determine the truth of

the facts alleged.

It is true that Walker v. Johnston, 312 U.S. 275

(1941), and Machibroda, as well as some of the circuit

court decisions, arose out of petitions for relief by

federal prisoners under 28 U.S.C. §2255 or its

16

predecessor, and that the decisions in those cases relied

at least in part on the mandatory language of that

statute. But numerous other decisions, acting without

the explicit statutory guidance of §2255, have, by

applying the policy behind the rule, reached the same

result in considering petitions by state prisoners. E.g.,

United States ex rel. Hill v. Ternullo, 510 F.2d 844 (2d

Cir. 1975); Hillard v. Beto, 494 F.2d 35 (Sth Cir. 1974)

(“{E]ven the most conservative reading of the factual

allegations of petitioner's §2254 complaint shows that

he is claiming to be the victim of a broken plea bargain,

but there has been no factual hearing to determine

whether this claim is supported”): Schoultz v. Hocker,

469 F.2d 681, 682 (9th Cir. 1972) (petitioner “entitled

to evidentiary hearing for the determination of the

truth or falsity of the allegation as to the alleged

promise’): Macon vy. Craven, 457 F.2d 342 (9th Cir.

1972) (accord); Zekelkevzula v. Patterson, 373 F.2d

522 (10th Cir. 1967) (accord). And, of course, the

plain and direct language of Townsend. further

implemented by Congress in 28 U.S.C. §2254, provides

a clear mandate tor a hearing in state prisoner cases.

The reasoning followed in the federal-prisoner cases

applies with equal force to petitions by prisoners in

state custody: in either case, allegations of the existence

of an off-ihe-record plea bargain and its violation raise

issues of fact which cannot be resolved by an

examination of the record, or even by submission of

affidavits. And if hearings are required in petitions from

federal convictions, with the protection of the generally

thorough rule 11 inquiry, then a state prisoner, whose

plea is usually taken without benefit of so searching an

examination as that of the federal practice (as

evidenced by the reported decisions), surely ought to be

entitled to a hearing on his claim that his plea was

coerced. See generally Davis ». North Carolina, 313

F.2d 904 (4th Cir. 1962), and cases therein cited.

Re eee ee

17

What the Court in Kaufman y. United States, 394

U.S. 217 (1969), said of federal ;sisoners might be

equally applied to state petitioners in habeas corpus:

The opportunity to assert federal rights in a

federal forum is clearly not the sole justification

for federal post-conviction relief; otherwise there

would be no need to make such relief available to

federal prisoners at all. The provisions of federal

collateral remedies rests more fundamentally upon

a recognition that adequate protection of constitu-

tional rights relating to the criminal trial process

requires the continuing availability of a mechanism

for relict. This is no less true for federal prisoners

than it is for state prisoners.

394 U.S. at 226.

The State, however, apparently conceding that

Allison was entitled to some type of hearing on his

allegations, argues that the arraignment itself was the

“full and fair evidentiary hearing” into the merits of his

constitutional claim required by this Court in Townsend

and by Congress in §2254, and that the printed form

offered by the state as the only record of that hearing

constitutes the “reliable and adequate written indicia”

of such a determination referred to in the statute. This

is surely among the strangest of the state’s contentions

in this case, yet because the state is forced to build its

entire argument entirely upon that proposition, it bears

closer analysis, if only because of its beguiling

simplicity.

Allison alleged he was the victim of a broken plea

bargain with the state, the bargain having been relayed

to him through the mediation of his counsel, who

further instructed him in the manner in which the

court’s questions were to be answered if the bargain

were not to be jeopardized by disclosure in open court.

That is the claim which, under Townsend, requires a

full hearing in some tribunal if adjudication in the

i8

federal district court is to be avoided, and “[t]here

cannot even be the semblance of a full and fair hearing

unless the state court actually reached and decided the

issues of fact tendered by the defendant.” Townsend,

372 U.S. at 313-14. See Bovd v. Dutton, 405 U.S. |

(1972) (state post-conviction proceeding record held an

inadequate development of the material facts in issue;

error tor federal district court to deny relief without

evidentiary hearing); Lane v. Henderson, 480 F.2d 544

(Sth Cir. 1973) (state evidentiary hearing not “full and

fuir’ where only evidence presented was minutes of

plea): Hlawhins vy. Bennett, 423 F.2d 948 (8th Cir.

1970) (‘meaningful presentation of petitioner’s claims”

is required): Anthony v. Fitzharris, 389 F.2d 657 (9th

Cir. 1968) (held, transcript of state-court plea proceed-

ings not a sufficient hearing under §2254 as to ciaim of

involuntariness to entitle it to presumption of correct-

Ness ).

It is difficult to understand how the judge’s questions

themselves and his “finding of voluntariness in a

pre-printed form could be considered a “determination

after a hearing on the merits” of Allison’s claim of an

off-the-record agreement: when the formalistic inquiry

was made, Allison had not been sentenced and no

bargain had yet been broken. Yet the state, in Catch-22

fashion, now urges that the “hearing” can precede the

events to be heard. The authority cited at pages 15-16

of petitioners brief in support of that proposition is

easily distinguisable, and the reasons advanced for the

adoption of such a harsh rule, examined infra, do not

withstand scrutiny.

In any event, even if the plea proceeding itself were

considered to be a determination into the merits of

Allison’s claim, evidenced by reliable indicia, that would

not end the matter, since such a determination raises

only a presumption of correctness which may be

19

rebutted by the petitioner; it is not a conclusive adverse

adjudication. Further, Congress has provided that the

presumption shall not apply if any one of several

factors (taken mostly from the opinion in Townsend)

ure present, and at least four of those factors are

present in Allison’s case: (1) the merits of his claim

that his answers were false and were part of the sub

rosa agreement have never been resolved in any

tribunal; (2) the form questions of the plea transcript

were not a fact-finding procedure adequate to afford a

full and fair hearing, as not one of them inquired

expressly into the existence of any plea bargain or

expectation of leniency, or indicated that such

arrangements could be disclosed without fear of judicial

sanction; (3) the “‘material facts” were not adequately

developed at that hearing, for the above reasons and for

the additional reason that plea bargains have tradition-

ally been shrouded in secrecy, as will be developed

infra; and (4) the mere recital of the questions on the

form which is all that appears on the present record

is not a “full, fair, and adequate hearing” into the

claim of a broken’ plea’ bargain. 28 U.S.C.

§ 2254(d)(1 (3), (6). Allison therefore did not bear the

burden of showing that any such factual determination

was erroneous in order to be entitled to federal

consideration of his claim.

Furthermore, disclaimers of plea bargains at arraign-

ment are inherently unreliable:

At the more formal part of the pleading process,

the in-court appearance at which the defendant

enters his plea, the parties typically act as if no

prior negotiations had occurred. Trial judges,

although they are aware that negotiation for pleas

is a common practice, routinely ask the defendant

whether any promises have been made to him.

Notwithstanding the fact that the plea has been

the subject of negotiation, the defendant usually

20

unswers in the negative, and the prosecutor and

defense counsel seldom indicate to the contrary.

If the judge, the prosecution, or the defense

counsel makes a statement in open court that is

contrary to what he has been led to believe,

especially as to promises by the prosecutor or

his defense counsel,... [the defendant] would

no more challenge that statement in open court

than he would challenge a clergyman’s sermon

from the pulpit.

Trebach, The Rationing of Justice 159-60

(1964) As a result, the negotiation process

remains largely invisible, informal, and not subject

—to any systematic control.

American Bar Association Project on Standards for

Criminal Justice, Standards Relating to Piecas of Guilty

61 (Approved Draft 1968). See also Note, The

Legitimation of Plea Bargaining: Remedies for Broken

Promises, 11 Am. Crim. L. Rev. 771, 775 (1973) and

cases cited in n. 28 (*[C]ourts are rarely aware of the

existence of a plea bargain’’).

This fact, readily apparent to even the novice at the

criminal bar, has been given judicial recognition many

times, as the petitioners concede in their brief at page

17 thereof (while continuing to speak of “procuring

perjury” and of “bringing the prisoner and his lawyer

to justice on account of their conspiracy,” id. at 21). In

United States v. Tweedy, 419 F.2d 192, 193 (9th Cir.

1969), the court noted that “a defendant might

solemnly affirm to the court that his plea had not been

induced by promises of leniency because he thought

that this was all part of the game, and that honest

answers would destroy the deal.” In Scott v. United

States, 419 F.2d 264 (D.C. Cir. 1969), the court

proposed full disclosure of plea bargains to end the

“courtroom charade in which the judge asks whether a

21

plea has been induced by any promises, and the

defendant replies that it has not, when all the actors

realize that quite the contrary is true.” In Walters y.

Harris, 460 F.2d 988, 993 (4th Cir. 1972), the court

remarked:

Examination of the defendant alone will not

always bring out into the open a promise that has

induced his guilty plea. It is well known that a

defendant will sometimes deny the existence of a

bargain that has in fact occurred ... out of fear

that a truthful response would jeopardize the

bargain.

The court then quoted the statement from Trebach,

supra, and held: “The danger that a Rule 11 inquiry

will not uncover a plea bargain is sufficient that the

defendant’s responses alone to a general Rule 11

inquiry cannot be considered conclusive evidence that

no bargaining has occurred.” 460 F.2d at 993 (citing

supporting authorities). See also Edwards vy. Garrison,

§29 F.2d 1374, 1377 (4th Cir. 1975) (‘[T]he

unallayed apprehensions of the accused make general

inquiries about inducements unreliable in unearthing

plea bargains”); Brvan v. United States, 492 F.2d 775,

785-86 (Sth Cir. 1974) (dissenting opinion of Goldberg,

J.); Hillard v. Beto, 465 F.2d 829, 832 (Sth Cir.),

petition for rehearing en banc granted, 465 F.2d 833

(Sth Cir. 1972), en bane panel dissolved and case

remanded to panel, 494 F.2d 34 (Sth Cir.), remanded

for evidentiary hearing, 494 F.2d 35 (Sth Cir. 1974);

Gallegos v. United States, 466 F.2d 740, 742 (Sth Cir.

1972).

That such formal transcripts are not always con-

clusive was confirmed by this Court in Fontaine vy.

United States, 411 U.S. 213 (1973). In that case the

district court had denied an evidentiary hearing where

the petitioner had acknowledged before him at the rule

pe.

11 inquiry that his plea was given voluntarily and

knowingly, that he understood the nature of the

charges and the consequences of the plea, and that he

was in fact guilty, but where he had alleged in his

$2255 petition that his plea was coerced. The court of

appeals affirmed, holding that since the requirements of

rule 11 had been met, this collateral attack was per se

unavailable. This Court reversed and in a per curiam

opinion rejected the notion that the record of the

inquiry is conclusive as to voluntariness and immune

from collateral impeachment:

The objective of Fed. Rule Crim. Proc. 11, of

course, is to flush out and resolve all such issues,

but like any procedural mechanism, its exercise is

neither always perfect nor uniformly invulnerable

to subsequent challenge calling for an opportunity

to prove the allegations.

411 U.S. at 215. See also United States vy. Valenciano,

495 F.2d 585 (3d Cir. 1974) (hearing required despite

petitioner's “virtually herculean” burden of overcoming

his negative answers to extensive plea-bargaining ques-

tions); Roberts v. United States, 486 F.2d 980 (Sth Cir.

1973) (district court not entitled to rely solely on

sentencing transcript); Macon vy. Craven, 457 F.2d 343

(9th Cir. 1972) (district court not entitled to rely on

colloguy between sentencing judge and defendant). And

in Edwards vy. Garrison, 529 F.2d 1374, 1377 n. 3 (4th

Cir. 1975), the court below held, as it did in Allison's

case, that “a state court’s determination that a plea

accepted after only general inquiry was freely and

voluntarily made without evidentiary exploration of .a

subsequent allegation that there was an unfulfilled plea

bargain is not binding on a ftederal court under

Townsend... 0

23

Furthermore, the circumstances of Allison’s particular

case render his pro forma denial especially unreliable.

The record that the state wants this Court to consider

conclusive consists only of “yes” or “‘no” answers to

form questions: it is not a verbatim transcript of what

occurred, and one is unable to ascertain, for example,

what might have been said by Allison, his attorney, the

prosecutor or the court during pauses between

questions or at other times in the proceeding. In was, in

fact, common practice in North Carolina under the

procedure represented by this record for the trial judge,

prior to taking the plea, to instruct the attorney to “go

over the form’’ with his client; or, in cases where that

was not done or was inadequate to insure the “right”

answers, for the attorney to whisper advice to the

defendant following the judge’s questions, while the

judge waited patiently before proceeding to the next

question. Lawyers, after all, are exceptionally talented

in the art of making subtle distinctions, and many an

unlearned defendant has had it convincingly explained

to him that a sentencing understanding or agreement is

not a “promise or threat” made to “influence” him to

plead guilty, or at least that its disclosure is neither

contemplated by that question nor desired by the

court. The proceeding in this respect was a sham, and

for the state now naively to profess shock upon hearing

of such lawyer-client “‘conspiracies” simply ignores the

realities of former North Carolina trial practice.

The present state of the record in this case is

therefore not wholly inconsistent with the claim that a

bargain was struck for Allison’s plea; and in fact other

factors point to the existence of some arrangement.

Allison was charged with three felonies, to which he

initially entered pleas of not guilty; yet he was later

permitted to enter a plea of guilty to only the offense

of attempted safecracking, and the other charges were

24

apparently dismissed. If the state does not fault him for

failing to disclose this fact as a “promise” made to

“influence” him to plead guilty, how can it assert that

‘the record conclusively shows that no additional

consideration was given tor the plea?

The facts in McCarthy v. United States, 394 U.S. 459

(1969). are remarkably in point on this issue. There the

record, reproduced in Appendix A to the opinion of

the Court, reveals that the prosecutor requested the

court to ask “whether or not any promises or threats

have been made.” The colloquy then continued:

Mr. Sokol [defense counsel]: No, no promises or

threats.

The Court: [| am going to ask the defendant

himself. Have any promises been made to you for

entering a plea of guilty?

Defendant McCarthy: No, your Honor.

The Court: Has anybody threatened you that if

you didn’t enter a plea of guilty something would

happen to you?

Defendant McCarthy: | beg your pardon”?

The Court: Has anybody threatened you to enter a

plea of guilty?

Defendant McCarthy: That’s right. of my own

volition, your Honor.

394 U.S. at 474. ‘

But the record also reveals that McCarthy’s attorney

had just moved to withdraw his previously entered plea

of not guilty to count two of three counts, whereupon

the prosecutor acknowledged that the plea was

satistactory to the government and that the government

would move to dismiss counts one and three (which it

later did). 394 U.S. at 472. It would strain” the

credulity of the experienced criminal trial lawyer to

suggest that no plea bargaining had occurred and that

23

the defendant did not fully expect a dismissal of counts

one and three in consideration of his plea to count two,

even though McCarthy had responded that no

“promise” had been made. Yet the petitioners in the

present case impliedly urge that he would have been

bound by his answer had the government failed to

dismiss the other two counts — that he would have

been estopped to assert the obvious bargain. The state

would foreclose a hearing on such claims, considering

them invariably incredible, even though the facts in

several such cases establish or strongly imply the

existence of off-the-record plea arrangements.

Another such case is Justice v. Texas, 522 F.2d 1365

(Sth Cir. 1975), where the arraignment record, which

the petitioners here would consider conclusive, showed

the following colloquy:

The Court: You are not pleading guilty because of

any fear, threats or coercion, any false or delusive

hopes of pardon, or any promises made to you.

Justice: No sir.

Yet the district court found, after an evidentiary

hearing, that plea bargaining had taken place and that

the defendant had not received the benefit of his

bargain. The court of appeals affirmed the granting of

relief, termining the question-and-answer series a

“formalistic recitation,” Gallegos v. United States, 466

F.2d 740, 742 (Sth Cir. 1972), and refusing to make it

conclusive of the issue. Would justice have been done if

the district court had adopted the position urged by the

petitioners and denied Justice an opportunity to prove

the truth of his allegations?

In United States v. Hammerman, 528 F.2d 326 (4th

Cir. 1975), the defendant alleged, and the court found,

that the plea of guilty was induced by the prosecutor’s

covert signal to defendant’s attorney that the trial judge

had indicated his assent to a probationary sentence. The

26

court, referring to the “pressures for silence” in such

situations, held that “any admission that assurances had

been given would divulge judicial participation and

thereby jeopardize the understanding. We find that

under these circumstances Hammerman’s denial of any

inducement or commitment [to plead guilty] leaves

untouched our determination that the assistant prose-

cutor’s misrepresentation induced the plea.” 528 F.2d

at 331. The court expressly left undecided the question

whether Hammerman would have been bound had the

judge asked him whether any predictions had been

made that the court would impose any particular

sentence.

Thus the state’s first “reason” for sustaining a

discriminatory approach towards claims such as

Allison’s — their “low probability of truthfulness”

(Brief for Petitioners at 19) — is not completely

correct. In any event, Allison’s claim, which is

apparently corroborated by at least one other person,

has not been shown to be untruthful in any reliable

state court proceeding, and he is entitled to an

evidentiary hearing on his federal petition, where the

witnesses (including his attorney, whose testimony has

not been sought by anyone thus far) can be examined

and the truth of the matter ascertained. Certainly the

bare record before the Court is not conclusive on that

point, and the case illustrates the necessity for “the

continuing availability of a mechanism for relief,”

Kaufman y. United States, supra, 394 U.S. at 226.

27

iil.

A DECISION IN ALLISON’S FAVOR WILL

BE OF LIMITED PRECEDENTIAL VALUE

AND WILL NOT BURDEN THE STATE,

SINCE NORTH CAROLINA NOW PRO-

VIDES FOR FULL DISCLOSURE OF PLEA

AGREEMENTS AND THEIR INCORPORA-

TION INTO THE RECORD.

This Court in McCarthy v. United States, 394 US.

459 (1969), recognized that a fuller inquiry of the

defendant at the time he enters his plea is more likely

t> ascertain the voluntariness of his acts than is the

alternate remedy, suggested in that case, of shifting the

burden of proof to the government at a_ later

post-conviction nearing. In meeting its burden at such a

hearing, said the Court, “the Government will un-

doubtedly rely upon the defendant’s statement that he

desired to plead guilty and frequently a statement that

tie plea was not induced by any threats or promises.”

394 U.S. at 469. This prima facie case for voluntariness

is likely to be treated as irrebuttable, since “[n]o

matter how true these allegations may be, rarely, if

ever, can a defendant corroborate them in a post-plea

voluntariness hearing.” /d. Instead, the Court held that

the remedy would be a fuller inquiry under rule 11 as

to the defendant’s understanding of the nature of the

Charge against him the point, rather than the

existence of a plea bargain, which was there in issue.

This general remedy ~— fuller inquiry at trial in hopes

of flushing out potential infirmities that may later be

asserted has found this Court’s approval in other

contexts as well. See Bovd yv. Dutton, 405 U.S. |

(1972) (waiver of counsel): Boykin v. Alabama, 395

U.S. 238 (1969) (waiver of trial rights by plea of

guilty): Jackson vy. Denno, 378 U.S. 368 (1964)

28

(voluntariness of confession): and Carnieyv vy. Cochran,

369 U.S. 506 (1962) (waiver of counsel).

It is true, as petitioners argue (Brief for Petitioners at

22), that the record showing required by Boykin was

intended to forestall the “spin-off of collateral

proceedings,” 395 U.S. at 243, but the Court also

noted that a record adequate for such review can only

be made if the trial judge demonstrates the “utmost

solicitude of which courts are capable in canvassing the

matter with the accused to make sure he has a full

understanding of what the plea connotes and of its

consequence.” 395 U.S. at 243-44. Not being a

plea-bargain case, it did not attempt to define the

extent to which the trial judge must inquire into the

possible existence of a plea bargain to forestall later

collateral attack.

However, the state of North Carolina and the federal

courts of appeals of several circuits have attempted such

a delineation, and to the extent that such efforts prove

successful in dispelling the pre-Sanfobello reluctance to

bring plea agreements into the open and onto the

record, claims such as Allison’s are bound to decrease in

number.

The Fourth Circuit was apparently the ftirst to

attempt a solution on the federal level to the problem

of post-conviction attacks on guilty pleas on such

grounds. The mechanism chosen was an expanded rule

11 inquiry by the district judge, a negative response to

which would prevent subsequent litigation:

I now inquire of the United States Attorney and

of the prisoner and his counsel whether or not

there have been plea negotiations. Before per-

mitting you to respond, | advise you that the

United States Supreme Court’ has specifically

approved plea bargaining and has said it is “an

essential component of the administration of

justice... to be encouraged.” You may, therefore,

29

advise me truthfully of any plea negotiation

without the slightest fear of incurring disapproval

of the court

Walters v. Harris, 460 F.2d 988, 993 (4th Cir. 1972),

cert. denied sub nom. Wren vy. United States, 409 U.S.

1129 (1973). Subsequently, the Third and Fifth

Circuits followed the lead of the Fourth and required a

similar expanded rule 11 inquiry. See Paradiso v. United

States, 482 F.2d 409, 413 (3d Cir. 1973): Bryan vy.

United States, 492 F.2d 775 (Sth Cir. 1974). Such an

inquiry is also the solution proposed by the American

Bar Association in its Standards. See American Bar

Association Project on Standards for Criminal Justice.

Standards Relating to Pleas of Guilty 6-12 (Approved

Draft 1968).

Apparently in voluntary response to the Fourth

“ircuit’s suggestion in Walters, the Administrative Office

of the Courts of the state of North Carolina in 1974

distributed to all superior court clerks a_ revised

plea-transcript form for negotiated pleas (Appendix C

to Brief), in which the following question appeared:

8. | now inquire of the district attorney and of the

prisoner and his counsel whether or not there

have been plea negotiations. Before permitting

you to respond, | advise you that the courts

have specifically approved plea bargaining and

have said that it is an essential component of

the administration of justice to be encouraged.

You should, therefore, advise me truthfully of

any plea negotiations without the slightest fear

of incurring disapproval of the court. Now

therefore, have you agreed to plead (guilty)

(nolo contendere) upon conditions?

Answer

The form then provided a space in which the

conditions could be set forth, and a further question,

30

“Except for the promises set out above (paragraph 9),

have any promises or threats been made to you to

induce you to plead (guilty) (nolo contendere) upon

these conditions?”

North Carolina’s efforts to encourage complete

disclosure of plea agreements and to build an adequate

record of guilty-plea proceedings did not end with the

above administrative action. In 1975 a thorough

legislative revision of North Carolina criminal procedure

became effective, and Article 58 of the Criminal

Procedure Act, codified as N.C. Gen. Stat. §§ 1ISA-1021

to -1027 and reproduced in Appendix A to this brief,

set forth a definite procedure for the taking of guilty

pleas in the superior court (the court of general

jurisdiction). Plea bargaining is now specifically legiti-

mized, and the trial judge is required to inquire of the

prosecutor, the defense counsel, and the defendant

personally whether there were any prior plea dis-

cussions, whether they resulted in an agreement, and

what the terms of the agreement are. N. C. Gen. Stat.

§15A-1022. The judge is required to advise the parties

whether he approves the agreement and will dispose of

the case accordingly: if he disapproves, he must give the

parties an opportunity to renegotiate. N.C. Gen. Stat.

§ 15A-1023. If the agreement is one relating to sentence

and the judge at any time indicates his intention to

impose a different sentence, the defendant must be

informed and is entitled to a continuance of his case as

a matter of right. N.C. Gen. Stat. §1SA-1024. A

verbatim record of the proceedings must be made, and

it must include the terms of the agreement and the

assent of all parties. N.C. Gen. Stat. §1SA-1026.

Based on this statutory authority, North Carolina

again revised its transcript of plea form in 1976 (sce

Appendix D, infra). The new form, applicable to all

pleas whether “negotiated” or not, asks simply:

3]

11. Have you agreed to plead as a part of a plea

bargain? Before you answer, I advise you that

the Courts have approved plea bargaining and

if there is one, you may advise me truthfully

without fear of incurring my disapproval.

Significantly, at the conclusion of all the questions the

defendant signs a_ statement, under oath, that

“[njeither my lawyer nor anyone else has told me to

give false answers in order to have the Court accept my

plea in this case.”

Had such a procedure existed in North Carolina at

the time Allison entered his plea (which was less than

two months after the decision in Santobello), arguably

this case would not now be before this Court; at the

least, Allison would find his claim much more difficult

to assert. But the very fact that the inquiry has been

expanded implies that the former practice and_pro-

cedure were inadequate to forestall later claims of

undisclosed plea bargains. The openness of the new

procedure is a salutary development to be encouraged.

For the Court now to hold that the former cursory

inquiry as to promises or threats was sufficient would

be to tell the lawmakers of North Carolina and its court

administrators that they had done a useless act. This

Court should not yield to the suggestion of the

petitioners that it substitute its judgment for that of

the North Carolina legislature, which has remedied the

problem of its own initiative and has substantially

reduced the likelihood of future claims such as

Allison’s, or at least diminished their credibility if

made.

32

IV.

ALLISON SHOULD NOT HAVE BEEN

DENIED AN EVIDENTIARY HEARING

FOR HIS FAILURE TO SUBMIT AN AFFI-

DAVIT FROM AN INCARCERATED CO-

DEFENDANT.

As argued above, the surest way to end petitions of

this type is to provide for a full and complete

disclosure on the record of plea agreements. This

disclosure was not sought in the present case, and

North Carolina has now corrected the defect in its

procedure. But there must always remain a mechanism

for relief when the system of intended full disclosure

malfunctions — perhaps in a situation where the judge

himself is reluctant to have his assent to the agreement

revealed in open court and directs counsel in chambers

nct to disclose all or part of it, or where law

enforcement officials seek to preserve the confi-

dentiality of a proposed informant about to enter a

negotiated plea. While admittedly many later claims of

unenforced plea bargains will ultimately be found to be

without merit, only an extreme cynic would contend

that all of them are baseless. A hearing on the merits is

a small premium for the insurance that constitutional

rights will remain protected.

The magistrate in Allison’s case, however, attempted

to avoid the inconvenience cf a hearing by requiring

him to submit an affidavit from his co-defendant, who

was then serving a sentence in other institutions.

“{T| his Court has emphasized, taking into account the

office of the writ and the fact that the petitioner, being

in custody, is usually handicapped in developing the

evidence needed to support in necessary detai! the facts

alleged in his petition, that a habeas corpus proceeding

must not be allowed to founder in a ‘procedural

33

morass.” Harris v. Nelson, 394 U.S. 286, 291-92

(1969). It is submitted that it is singularly inappropriate

to place upon an indigent state prisoner, proceeding pro

se, the burden of procuring the affidavit of another

prisoner, upon penalty of having his claims dismissed.

In this case, a “procedural morass” was the result.

The magistrate’s directive to Allison presumed a

willing witness; it required him to perform an act

beyond his control as a condition to asserting a facially

valid claim of deprivation of constitutional right. It

must be remembered that Laster, the witness, was the

very man who had changed his plea and agreed to

testify against the respondent, inducing him to plead

guilty. Further, Laster had, according to Allison and to

Laster’s own purported statement, received less than the

statutory minimum for the offense of which he was

convicted, and he may have had some understandable

reluctance to “rock the boat.” Laster may simply not

have been concerned enough with Allison’s fate to

trouble himself with an affidavit; he may not have

known what one was, or how to make it; his ability to

receive mail from other inmates may have been

restricted; he may have been concerned (as Allison

suggested in his letter to the court) that his custodians

would resent him for it and would deny him the minor

rewards and privileges associated with satisfactory

behavior in our penal system (he was asked, after all, to

appear before a prison notary to aid another prisoner in

a civil action’ entitled “Allison v. Blackledge,

Warden... .”

The point is that one cannot assume the easy

availability of such supporting material, at least not so

certainly as to fashion from it a “threshold require-

ment,” as the petitioners urge. Not all prisoners may

have their plea discussions witnessed; and not all

witnesses may willingly furnish affidavits, as this case

illustrates.

34

A rule requiring something other than the

petitioner’s own affidavit as a prerequisite to going

behind the official transcripts has a certain surface

attraction. Nothing in the statute commands such

a rule and the realities of prison life suggest that a

per se rule might unreasonably and unnecessarily

restrict access to the §2255 remedy. More

important, Machibroda seems clearly to allow a

hearing on the strength of the petitioner's own

affidavit without supporting papers.

Bryan v, United States, 492 F.2d 775, 783 (Sth Cir.

1974) (Goldberg, J., dissenting).

What required Allison months of effort, presumably

by his family as his liaison with a reluctant

co-defendant, could have been obtained by the state

Attorney General’s office with littlke more than a

telephone call to the co-defendant’s prison unit and

possibly another to the attorney who represented

Allison at trial. The court below was correct in holding

that it was error to place this burden on the

respondent.

Respondent concedes that the workload of the

federal district courts would be diminished if this class

of litigants were barred from the courtroom as

petitioners suggest in their brief at 19-20, but this

Court has consistently rejected claims of administrative

convenience as a justification for unconstitutional

distincticas between classes of similarly situated

persons. See Frontiero vy. Richardson, 411 U.S. 677

(1973); Reed v. Reed, 404 U.S. 71 (1971); Shapiro y.

Thompson, 394 U.S. 618 (1969); Carrington y. Rash,

380 U.S. 69 (1965). “[T]he Constitution recognizes

higher values than speed and efficiency.” Stanley vy.

Illinois, 405 U.S. 645, 656 (1972).

In Reed, supra, the Court unanimously rejected

reduction of the workload on the probate courts of

Idaho as a justification for an otherwise improper

35

distinction between classes of petitioners. Such a

distinction, “‘merely to accomplish the elimination of

hearings on the merits,” was found arbitrary. 404 U.S.

at 76. Such holdings can always be distinguished, of

course, but it would be unseemly for the federal

judiciary to justify reduction of its workload at the

expense of a class of litigants, while rejecting such

reasons when advanced by other agencies of govern-

ment. This is particularly so when the interests sought

to be asserted are fundamental rights guaranteed under

the Constitution, rather than mere statutory entitle-

ments to welfare benefits, military allowances, or the

right to administer a decedent’s estate. “There is no

higher duty of a court, under our constitutional system,

than the careful processing and adjudication of petitions

for writs of habeas corpus... .” Harris, supra, 394 U.S.

at 292.

The state urges that because few prisoners ultimately

prevail in their claims (perhaps because of the very

judicial hostility it cites), all should be barred from

seeking relief — that this Court should establish a

“doctrine of non-review” to this class of petitions (Brief

for Petitioners at 19-20). It is true that the increasing

number of such claims has threatened to produce a

judicial insensitivity to habeas corpus petitions, as was

recognized by Mr. Justice Powell in his dissenting

opinion in Boyd v. Dutton, 405 U.S. 1, 8 (1972). But

judicial insensitivity to any class of litigant is to be

avoided (the point of the dissent), not lauded as the

state suggests.

In any event, it is uncertain what benefits would

accrue from transfer of the potential for insensitivity

from the trial to the appellate stage through establish-

ment of the “higher threshold requirement” proposed —

by petitioners (Brief for Petitioners at 20), since it is

not suggested how the appellate courts could avoid

36

. —_

review of each case to detetgine whether threshold

has been met and was appropriatély required. The

expense and inconvenience of appellate litigation is

thereby substituted for a simple hearing at the trial

level. “The exhumation and resurrection of viable

prisoner complaints which have been summarily given

final rites and buried by district courts has become a

major occupation of this Court.” Covington y. Cole,

$28 F.2d 1365 (Sth Cir. 1976) (Goldberg, J., in the

context of §1983 complaints). in addition, the

appellate courts themselves have recognized in many

cases that there are limits to the claims that are

considered worthy of a hearing. See, e.g., Edmonds vy.

Lewis, No. 75-2308 _._. F.2d ___. (4th Cir. December

3, 1976); Clayton v. Estelle, 541 F.2d 486 (Sth Cir.

1976), and cases therein cited; Crawford vy. United

States, 519 F.2d 347 (4th Cir. 1975). In each of these

cases, distinguishable from Allison’s on their facts, an

evidentiary hearing was not required. Cf. also the report

of the Director of the Administrative Office of the

United States Courts cited in Wingo vy. Wedding, 418

U.S. 416, 473 n. 20 (1974) (less than five per cent of

habeas corpus petitions in 1973 required hearings; of

those that did, eighty-eight per cent were completed in

one day or less).

Even if affidavits are deemed useful in establishing a

higher threshold for habeas petitioners, they are not a

substitute for an evidentiary hearing where the ultimate

disposition of the case will likely turn on questions of

credibility.

Where an unresolved factual dispute exists, de-

meanor evidence is a significant factor in adjudging

credibility. An questions of credibility, of course,

are basic to resolution of conflicts in testimony.

To be sure, the state-court record is competent

evidence, and either party may choose to rely

solely upon the evidence contained in that record,

37

but the petitioner, and the State, must be given

the opportunity to present other testimonial and

documentary evidence relevant to the disputed

issues.

Townsend vy, Sain, 372 U.S. 293, 322 (1963). See also

United States v. Yellow Cab Co., 338 U.S. 338, 341

(1949): Caputo v. Henderson, 541 F.2d 979, 984 (2d

Cir. 1976): Coleman v. Wilson, 401 F.2d 536 (9th Cir.

1968), cert. denied sub nom. Nelson vy. Coleman, 393

U.S. 1065; (cannot resolve conflict between allegations

of petition and former lawyer’s affidavit without

evidentiary hearing).

In this case, the trier of fact ought at a minimum to

hear the testimony of Allison, the co-defendant Laster,

Allison’s lawyer, and perhaps the prosecuting attorney.

Only in the relatively unlikely event that the versions of

all of these potential witnesses coincide would summary

disposition be appropriate. Affidavits may serve to put

factual disputes in clearer focus, but conflicting claims

of historical fact cannot thereby be settled. Hopefully

no one would be so cynical as to suggest that in every

case of conflicting assertions by a prisoner and his

former counsel or his prosecutor, the latter ought

automatically to be believed and _ the _ petitioner

disbelieved; yet that is the implication in requiring that

each side submit affidavits, on the basis of which the

case will be adjudicated. The “insidious suggestion” of

“trial by affidavit,” Raines v. United States, 423 F.2d

526, 533 (4th Cir. 1970) (Sobeloff, J., dissenting), has

been rejected in many cases. Walker v. Johnston, 312

U.S. 275, 286-87 (1941) (“Not by the pleadings and

the affidavits, but by the whole of the testimony, must

it be determined whether the petitioner has carried his

burden of proof and shown his right to a discharge.’’);

United States ex rel. Hill v. Ternullo, 510 F.2d 844,

847 (2d Cir. 1975): Del Piano vy. United States, 362

38

F.2d 931, 933 (3d Cir. 1966) (“The factual issue may

not be determined solely on the counter-affidavits

submitted by the Government and in total disregard of

the movant’s affidavit.”’)

In closing, respondent will briefly reply to some of

the petitioners’ remaining assertions. The first is their

suggestion that damage will be done to “equitable

principles” if relief is granted in a situation where the

state is not “at fault.” (Brief for Petitioners at 21).

Aside from the damage done if valid claims of

unconstitutional detention are not heard on_ their

merits, the respondent submits that it is inappropriate

to discuss the issue in terms of an analysis of relative

fault. The question in each case is whether an admission

of guilt predicated upon an unfulfilled expectation of

leniency is voluntary and fair. The petitioners have

simply misunderstood the proper function of the state

in administering criminal justice.

Petitioners also bring forward in passing another

argument more vigorously advanced below, deliberate

by-pass of state remedies (Brief for Petitioners at 21).

The state, however, admitted in its answer to Allison’s

petition that he had exhausted his state remedies, and

in any event the doctrine applies only to the failure to

exhaust remedies that are still open to the habeas

applicant at the time he files his application in federal

court. Fay v. Noia, 372 U.S. 391, 435 (1963). The

“remedy” that Allison by-passed, according to the state,

was that of volunteering to the judge, possibly contrary

to his counsel’s instructions, his expectation of a

ten-year sentence (and for all the record shows, he

might have done so, since nothing is known about what

he said at sentencing). This failure is hardly the

“intentional relinquishment or abandonment of a

known right or privilege” established by Fay as the

controlling standard. Further, there has been no hearing

ee

39

in federal court to find the facts bearing on Allison’s

alleged default, as Fay explicitly requires. 372 U.S. at

439. See also Humphrey v. Cady, 405 U.S. 504, 517

(1971).

“Finally, petitioners raise the spectre of wholesale

invalidation of the guilty pleas of the worst offenders in

North Carolina if Allison’s claim is sustained. This

concern is not well founded; if those who pleaded

guilty prior to 1974 have not yet uttered a word of

protest that an alleged bargain was broken, how likely

is it now that they will? And if they do, how credible

are their assertions likely to be? This is the reason

“North Carolina is not in a floodgates situation on this

type of claim at this time,” Brief for Petitioners at 22

n.6.

CONCLUSION

It has been nearly five years now since Allison first

presented to the courts a facially valid claim of

unconstitutional treatment, but he has not yet been

granted even the opportunity to have the truth of his

sworn allegation determined through the testimony of

witnesses. The state has offered no sound reason why

he should not be granted his day in court, and the

court of appeals was correct in holding that he is

entitled to this much. Its judgment should not be

disturbed,

Respectfully submitted,

C. FRANK GOLDSMITH, JR.

Court-Appointed Counsel for

Respondent

Story, Hunter & Goldsmith, P.A.

Post Office Drawer 1330

Marion, North Carolina 28752

Telephone: (704) 652-2844

bi Ath te Ab BB RAD te Nl BE BR tw eee ome

la

APPENDIX “A”

NORTH CAROLINA GENERAL STATUTES

ARTICLE 58.

Procedures Relating to Guilty Pleas in Superior Court.

§15A-1021. Plea conference; improper _ pressure

prohibited; submission of arrangement to judge.

(a) In superior court, the prosecution and _ the

defense may discuss the possibility that, upon the

defendant’s entry of a plea of guilty or no contest to

one or more offenses, the solicitor will not charge, will

dismiss, or will move for the dismissal of other charges,

or will recommend or not oppose a particular sentence.

If the defendant is represented by counsel in the

discussions the defendant need not be present. The trial

judge may participate in the discussions.

(b) No person representing the State or any of its

political subdivisions may bring improper pressure upon

a defendant to induce a plea of guilty or no contest.

(c) If the parties have reached a proposed plea

arrangement in which the solicitor has agreed to

recommend a particular sentence, they may, with the

permission of the trial judge, advise the judge of the

terms of the arrangement and the reasons therefor in

advance of the time for tender of the plea. The judge

may indicate to the parties whether he will concur in

the proposed disposition. The judge may withdraw his

concurrence if he learns of information not consistent

with the representations made to him.

§15A-1022. Advising defendant of consequences of

guilty plea; informed choice; factual basis for plea;

admission of guilt not required.

2a

(a) Except in the case of corporations oF in

misdemeanor cases in which there is a waiver of

appearance under G.S. 15A-1011(a)(3), a superior court

judge may not accept a plea of guilty or no contest

from the defendant without first addressing him

personally and:

(1) Informing him that he has a right to remain

silent and that any statement he makes may be

used against him;

(2) Determining that he understands the nature of

the charge;

(3) Informing him that he has a right to plead not

guilty;

(4) Informing him that by his plea he waives his

right to trial by jury and his right to be

confronted by the witnesses against him;

(5) Determining that the defendant, if represented

by counsel, is satisfied with his representation,

and

(6) Informing him of the maximum possible sentence

on the charge, including that possible from

consecutive sentences, and of the mandatory

minimum sentence, if any, on the charge.

(b) By inquiring of the solicitor and defense counsel

‘nd the defendant personally, the judge must determine

whether there were any prior plea discussions, whether

the parties have entered into any arrangement with

respect to the plea and the terms thereof, and whether

any improper pressure was exerted in violation of G.S.

15A-1021(b). The judge may not accept a plea of guilty

or no contest from a defendant without first

determining that the plea is a product of informed

choice.

(c) The judge may not accept a plea of guilty or no

contest without first determining that there is a factual

basis for the plea. This determination may be based

upon information including but not limited to:

ee ee eer

3a

(1) A statement of the facts by the solicitor.

(2) A written statement of the defendant.

(3) An examination of the presentence report.

(4) Sworn testimony, which may include reliable

hearsay.

(5S) A statement of facts by the defense counsel.

(d) The judge may accept the defendant’s plea of no

contest even though the defendant does not admit that

he is in fact guilty if the judge is nevertheless satisfied

that there is a factual basis for the plea. The judge must

advise the defendant that if he pleads no contest he will

be treated as guilty whether or not he admits guilt.

§15A-1023. Action by judge in plea arrangements

relating to sentence; no approval required when

arrangement does not relate to sentence.

(a) If the parties have agreed upon a plea arrange-

ment pursuant to G.S. 15A-1021 in which the solicitor

has agreed to recommend a particular sentence, they

must disclose the substance of their agreement to the

judge at the time the defendant is called upon to plead.

(b) Before accepting a plea pursuant to a plea

arrangement in which the solicitor has agreed to

recommend a particular sentence, the judge must advise

the parties whether he approves the arrangement and

will dispose of the case accordingly. If the judge rejects

the arrangement, he must so inform the parties, refuse

to accept the defendant’s plea of guilty or no contest,

and advise the defendant personally that neither the

State nor the defendant is bound by the rejected

arrangement. The judge must advise the parties of the

reasons he rejected the arrangement and afford them an

opportunity to modify the arrangement accordingly. A

decision by the judge disapproving a plea arrangement is

not subject to appeal.

(c) If the parties have entered a plea arrangement

relating to the disposition of charges in which the

4a

solicitor has not agreed to make any recommendations

concerning sentence, the substance of the arrangement

must be disclosed to the judge at the time the

defendant is called upon to plead. The judge must

accept the plea if he determines that the plea is the

product of the informed choice of the defendant and

that there is a factual basis for the plea.

§15A-1024. Withdrawal of guilty plea when sentence

not in accord with plea arrangement.

If at the time of sentencing, the judge for any reason

determines to impose a sentence other than provided

for in a plea arrangement between the parties, the judge

must inform the defendant of that fact and inform the

defendant that he may withdraw his plea. Upon

withdrawal, the defendant is entitled to a continuance

until the next session of court.

§15A-1025. Plea discussion and arrangement

inadmissible.

The fact that the defendant or his counsel and the

solicitor engaged in plea discussions or made a plea

arrangement may not be received in evidence against or

in favor of the defendant in any criminal or civil action

or administrative proceedings.

§15A-1026. Record of proceedings.

A verbatim record of the proceedings at which the

defendant enters a plea of guilty or no contest and of

any preliminary consideration of a plea arrangement by

the judge pursuant to G.S. 15A-1021(c) must be made

ard transcribed. This record must include the judge’s

advice to the defendant, and his inquiries of the

defendant, defense counsel, and the solicitor, and any

responses. If the plea arrangement has been reduced to

writing, it must be made a part of the record; otherwise

the judge must require that the terms of the

arrangement be stated for the record and that the

Retina

Sa

assent of the defendant, his counsel, and the solicitor

be recorded.

§15A-1027. Limitation on collateral attack on

conviction,

Noncompliance with the procedures of this Article

may not be a basis for review of a conviction after the

appeal period for the conviction has expired, unless the

review is expressly authorized by S.S. 15-217.

File 4

lb Film #

STATE OF NORTH CAROLINA In The General Court of Justice

County of Court Division

APPENDIX “‘B”

STATE OF NORTH CAROLINA

sie TRANSCRIPT OF PLEA

The Defendant, being first duly sworn, makes the following answers to the questions asked

by the Presiding Judge:

1. Are you able to hear and understand my statements and questions? Answer:

2. Are you now under the influence of any alcohol, drugs, narcotics, medicines, or other

pills? Answer:

3. Do you understand that you are charged with the (felony) (misdemeanor) of

? Answer:

4. Has the charge been explained to you, and are vou ready for ctrial?Answer:

5. Do you understand that you have the right to plead not guilty and to he tried by a

Jury? Answer:

6. How do you plead to these charges - Guilty, not Guilty, or nolo contendere?

Answer:

7. (a) Are you in fact guilty? (Omit if plea is nolo contendere) Answer:

(b) (If applicable) Have you had explained to vou and do you understand the meaning

of a plea of nolo contendere? Answer:

8. Do you understand that upon your plea of (guilty) (nolo contendere) you could be im-

prisoned for as much as (months) (vears)? Answer:

9. Have you had time to subpoena witnesses wanted by vou? Answer:

10. Have you had time to talk and confer with and have you conferred with your lawver a-

bout this case, and are you satisfied with his services? Answer: et ae

ll. Has the Solicitor, or your lawyer, or any policeman, law officer cr anyone else made

any promise or threat to you to influence you to plead (guilty) (nolo contendere) in

this case? Answer:

12. Has anyone violated any of your cometitutional rights? Answer:

13. Do you now freely, understandingly and voluntarily authorize and instruct your lawyer

to enter on your behalf a plea of (guilty) (nolo contendere)? Answer:

14. Do you have any questions or any statement to make about what I have just said to

you? Answer:

I have read or heard read all of the above questions and answers and understand them,

and the answerg shown are the ones I gave in open Court, and they are true and correct.

Defendant

Sworn to and subscribed before me this day of __ » 19

Clerk Superior Court

AOC-L Form 158

Rev 10/69 os

2b

ADJUDICATION

The undersigned Presiding Judge hereby finds and adjudges:

I. That the defendant, » was sworn in open Court and the questions

were asked him as set forth in the Transcript of Plea by the undersigned Judy ., and the

answers given thereto by said defendant are as set forth therein.

Il. That this defendant, was represented by attorney, .

who was (court appointed) (privately employed); and the defendant through his attorney, in

open Court, plead (guilty), (nolo contendere) to

as charged in the (warrant) (bill of indictment) (the lesser offense), of

and in open Court, under oath, further informs the Court that:

1. He is and has been fully advised of his rights and the charges against him;

2. He is and has been fully advised of the maximum punishment for said offense(s) charged,

and for the offense(s) to which he pleads (guilty) (nolo contendere) ;

3. He is guilty of the offense(s) to which he pleads guilty;

4. He authorizes his attorney to enter a plea of (guilty) (nolo contendere) to said charge(s)

5. He has had ample time to confer with his attorney, and to subpoena witnesses desired by

him;

6. He ie ready for trial;

7. He is satisfied with the counsel and services of his attorney;

And after further examination by the Court, the Court ascertains; determines and adjudges, |

that the plea of (guilty) (nolo contendere), by the defendant is freely, understandingly and

voluntarily made, without undue influence, compulsion or duress, and without promise of len-

ifency. It is, therefore, ORDERED that his plea of (guilty) (nolo contendere) be entered in

the record, and that the Transcript of Plea and Adjudication be filed and recorded.

This day of _ 8 °

Judge Presiding

Ic

APPENDIX “Cc”

STATE OF NORTH CAROLINA File #@

County of Film #

In The General Gourt of Justice

STATE OF NORTH CAROLINA Court Division

vs.

TRANSCRIPT OF NEGOTIATED PLEA

The defendant, being firet duly sworn, makes the following answers to the questions

asked by the Presiding Judge:

10.

ll.

12.

Are you able to hear and understand my statements and questions? Answer

Are you now under the influence of any alcohol, drugs, narcotics, medicines, or other

pille?

Answer

Do you understend that you are charged with the ‘felony) (misdemeanor) of

? Answer

Has the charge been explained to you? Answer

Do you understand that upon your plea of (guilty) (nolo contendere) you could be ia-

prieoned for as much ass (months) (years)?

Answer

Do ycu understand that you have the right to plead not guilty and to be tried by a

Jury? ' 7

Have you had time to talk and confer with and have you conferred with your lawyer about

thie case and are you satisfied with his services? .

I now inquire of the district attorney and of the prisoner and his counsel whether or

not there have been plea negotiations. Before permitting you to respond, I advise you

that the courts have specifically approved plea bargaining and have said that it is an

essential component of the administration of justice to be encouraged. You should,

therefore, adviee me truthfully of any plea negotiations without the slightest fear of

incurring disapproval of the court. Now therefore, have you agreed to plead (guilty)

(nolo contendere) upon conditions? , .

Are these the conditions and all of them?

Answer

Except for the promises set out above (paragraph 9), have any promises or threats been

made to you to induce you to plead (guilty) (nolo contendere) upon these conditions?

Answer

Do you now freely, voluntarily and understandingly authorize and instruct your lawyer

to enter on your behalf a plea of (guilty)(nolo contendere) upon the conditions above

set out?

Answer

Do you have any questions or any statement co make at this time about what I have just

said to you? .

AOC-L Form 159

2/74

2c

l have read or heard read all of the questions and answers on the reverse hereof and

understand them, and tte answers shown are the ones I gave in open Court, and they are true

and correct, and the bewis for the negotiated plea of (guilty) (nolo contendere) as stated

on the reverse hereof ie accurate and is the basis upon which I entered this plea of (guilty)

(nolo contendere).

Date Defendant

Sworn to and subscribed befor« me this _ day of , 19 °

Clerk of Superior Court

As attorney for the defendant,

I hereby certify that the conditions stated on the reverse hereof (paragraph 9) upon which

the defendant's plea of (guilty) (nolo contendere) was entered are correct and they are the

conditions agreed to by the defendant and myself as his attorney upon which the defendant's

plea of (guilty)(nolo contendere) was entered.

Date Attorney for Defendant

As district attorney for the Judicial District, I hereby certify that the

conditions stated on the reverse hereof (paragraph 9) are the conditions agreed to by the

defendant and his counsel and myself for the entry of the plea of (guilty) (nolo contendere)

by the defendant to the charge in this case.

Date District Attorney

ADJUDICATION

The undersigned Presiding Judge upon examination of the record proper and hearing

statement of counsel for the defendant and the district attorney, and upon considering tne

evidence offered, makes the following findings:

l. That the conditions of the negotiated plea of (guilty)(nolo contendere) are rea-

sonable and the acceptance and approval of the plea of (guilty)(nolo contendere) by the

court would be to the best interest of the defendant and society and the administration of

justice.

2. That substantial evidence has been produced to support the charge.

3. That the negotieted plea of (guilty)(nolo contendere) was entered into by the

defendant after consultation with counsel and with advice of counsel and that he did so

freely, voluntarily and with full knowledge of the consequences.

Upon the foregoing findings, the defendant's plea of (guilty) (nolo contendere) is

hereby accepted by the Court.

This day of ’

Judge Presiding

ll,

12.

STATE OF NORTH CAROLINA Id File #

County of APPENDIX “D” ria ¢

In The General Court of Justice

State of North Carolina Vs.

Court Division

TRANSCRIPT OF PLEA

The defendant, having tendered a plea of

, and being first d

sworn, makes the following answers to the questions asked by the Seasiine A

Are you able to hear and understand me? Answer

Do you understand that you have the right to remain silent and that

any statement you make may be used against you? Answer

Are you now under the influence of alcohol, dr medici

or any other intoxicants? — Te Answer

Have you discussed your case fully with your 1

satisfied with his services? % o> spathea eaaiene Answer

Do you understand that you are pleading (guilty)(no contest) to the

felonies of

misdemeanors of ‘

r. ? Answer

ve the charges been explained to you by your attorney and do

understand the nature of the charges? Answer

Do you understand that upor ver plea you could be imprisoned for a

maximum of years months (and that the mandatory

minimum sentence is »)? Answer

Do you understand that you have the right to

plead not guilty and

be tried by a jury and be confronted by the witnesses panes

you, and by this plea you give up these and your other con-

stitutional rights relating to trial by jury? Answer

Do you now plead (guilty) (no contest)? Answer

(a) [If applicable] Are you in fact guilty? Answer

(b) [If applicable] Do you understand that upon your plea of no

contest you will be treated as guilty whether or not you

admit your guilt? Answer

Have you agreed to plead as a part of a plea bargain’? Before you

answer, I advise you that the Courts have approved plea bargaining

and if there is one, you may advise me truthfully without fear of

incurring my disapproval. Answer

[If applicable} The District Attorney and your counsel have informed

the Court that these are all the terms and conditions of your plea:

(a) Is this correct? Answer (b) Do you accept this arrangement? Answer

(Continued on Reverse,

G.S. 15A-1021, -1022 oun

—. Form 290 TRANSCRIPT OF PLEA

2d

TRANSCRIPT OF PLEA (continued)

13. [Other than what I have just said) has anyone made you any promises

or threatened you in any way to cause you to enter this plea? Answer

14. Do you enter this plea of your own free will, understanding what

you are doing? Answer

15. Do you have any questions sbout what I have just said to you? Answer

I am years of age and completed the grade of school.

I have read or have heard read all of these questions and understand them. The

answers shown are the ones I gave in open court and they are true and accurate. Neither

my lawyer nor anyone else has told me to give false answers in order to have the Court

accept my plea in this case. The conditions of the plea as stated on the reverse hereof,

if any, are accurate.

Date Defendant

Sworn to and subscribed before me this day of »

Clerk of Superior Court

eeeaenenraeee ee ann

As Attorney for the defendant,

I hereby certify that the conditions stated on the reverse hereof, if any, upon which the

defendant's plea was entered are correct and they are agreed to by the defendant and ay-

self upon which the defendant's plea was entered. I further certify that I have fully

explained to the defendant the nature and elements of the charger to which he is pleading.

Date Attorney for Defendant

As prosecutor for the Judicial District, I hereby certify that the

conditiors stated on the reverse hereof, if any, are the terms agreed to by the defendant

and his counsel and myself for the entry of the plea by the defendant to the charge in

this case.

Date Prosecutor

eae eene ee eae eR RHR RRR AR

PLEA ADJUDICATION

Upon consideration of the record proper, evidence presented, answers of defendant,

and statements of counsel for the defendant and the prosecutor, the undersigned finde:

l. ‘That there is a factual basis for the entry of the plea.

2. That the defendant is satisfied with his counsel.

3. That the plea is the informed choice of the defendant and is made freely,

voluntarily, and understandingly.

The defendant's plea is hereby accepted by the Court and is ordered recorded.

This day of , 19

Presiding Judge