Petition — Bordenkircher v. Hayes

MAR 28

26-1334)

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1976

Misc. No.

HENRY COWAN, SUPERINTENDENT

KENTUCKY STATE PENITENTIARY ... PETITIONER

V.

PAUL LEWIS HATE RESPONDENT

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

ROBERT F. STEPHENS

ATTORNEY GENERAL

ROBERT L. CHENOWETH

ASSISTANT ATTORNEY

GENERAL

Capitol Building

Frankfort, Kentucky 40601

COUNSEL FOR PETITIONER

Supreme Court, U. * 4

— FILED 2

1977

|

TABLE OF CONTENTS

Page

TABLE OF CITATIONS .................... i-ii

OPINION BELOW .................------__ 1

rN 2

QUESTION PRESENTED _._.__-..-----___- 2

CONSTITUTIONAL

PROVISIONS INVOLVED __..._...-____-- 2

STATEMENT OF THE FACTS

I 2-5

“REASONS FOR GRANTING THE WRIT ____ 5-11

D 11

PROOF OF SERVICE cc 12

APPENDIX -- la-Sa, 1b-4b, Ic-Sc, 1d-4d, le and 1f-3f

TABLE OF CITATIONS

Cases: Page

Blackledge v. Perry,

e 7

Brady v. United States,

397 U.S. 742, 757 (1%) „ 6

TABLE OF CITATIONS (Continued)

Cases Page

Me Mann v. Richardson,

Sy lk, Fe GEE cccasccoensmeceessesss 11

North Carolina v. Pearce,

A EEE a 7

Padgett v. Commonwealth,

Ky., 493 S.W.2d 710 (1973) ~-.----------- 11

Parker v. North Carolina,

/ 11

Fantobello & New York,

e 7

United States v. DeMarco,

401 F. Supp. 505 (C.D. Cal. 19795 8

United States v. Jamison,

505 F.2d 407 (D.C. Cir. 19749) 8

United States v. Ruesga-Martinez,

534 F.2d 1367 (9th Cir. 1976) 8

Statute:

I 2

. . ..... 3

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1976

Misc. No.

HENRY COWAN, SUPERINTENDENT

KENTUCKY STATE PENITENTIARY ... PETITIONER

V.

PAUL LEWIS HAYES .................. RESPONDENT

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

The petitioner, Henry Cowan, respectfully prays that

a writ of certiorari issue to review the judgment and order

of the United States Court of Appeals for the Sixth Cir-

cuit decided December 30, 1976.

OPINION BELOW

The judgment and order of the United States Court

of Appeals for the Sixth Circuit in this case is reporied as

Hayes v. Cowan 547 F.2d 42 (6th Cir. 1976). The opin-

ion and order are set out in full in the Appendix, la-&a.

2

JURISDICTION

The judgment of the United States Court of Appeals

for the Sixth Circuit was decided and filed on December

30, 1976. This petition for a writ of certiorari was filed

within ninety (90) days of that date. Jurisdiction is in-

voked under 28 U.S.C. § 1254(1).

QUESTION PRESENTED

WHETHER THE COMMONWEALTH’S ATTOR-

NEY IS PROHIBITED FROM BARGAINING FOR A

PLEA OF GUILTY BY THREATENING TO BRING

AN ADDITIONAL INDICTMENT IF AN ACCUSED

DOES NOT ACCEPT A PLEA BARGAIN OFFER.

CONSTITUTIONAL PROVISIONS INVOLVED

The provisions of the United States Constitution in-

volved are the Fifth, Sixth and Fourteenth Amendments.

STATEMENT OF THE FACTS

AND OF THE CASE

The facts which led to Paul Lewis Hayes’ conviction

and incarceration are not disputed. Hayes, respondent

herein, was indicted by the Fayette County Grand Jury, -

Lexington, Kentucky, on January 8, 1973, for the charge

of uttering a forged instrument under Kentucky Re-

vised Statute (KRS) 434.130. After arraignment, pre-

trial conferences were held with the Commonwealth’s at-

torney on January 24 and 26, 1973. During these con-

ferences the prosecutor offered to recommend a five-year’ -

sentence if Hayes would plead guilty to uttering a forged -

instrument. Conviction for uttering a forged instrument

3

carried a penalty of from two to ten years in prison.

Hayes was told that if he did not plead guilty, he would

be charged under the then Kentucky Habitual Criminal

Act, KRS 431.190. Hayes chose not to plead guilty in

the face of a strong case against him.

The prosecutor thereupon returned to the grand jury

on January 29, 1973, and obtained an indic.ment charg-

ing Hayes under the Habitual Criminal Act.

A bifurcated trial was held in the Fayette Circuit

Court, Lexington, Fayette County, Kentucky, on April

19-20, 1973, and a conviction was returned on both the

principal charge and as an habitual criminal. As re-

quired by the habitual criminal statute where conviction

is had on the principal charge and of having twice before

been convicted of felonies, Hayes was sentenced to life in

the penitentiary.

At the beginning of the second phase of the trial for

consideration under the habitual criminal indictment,

Hayes on his own objected to the manner in which he had

been indicted on the habitual criminal charge. The facts

concerning this matter were admitted by the prosecutor

during his cross-examination of Hayes at the trial. The

prosecutor said:

“(I]sn’t it a fact that I told you if you did not intend

to save the court the inconvenience and necessity o/

a trial and taking up this time that I intended to re-

turn to the grand jury and ask them to indict you

based upon these prior felony convictions?”

See Appendix, 3b. Hayes’ refusal to plead guilty clearly

4

lead to his indictment under the habitual criminal statute.

The issue involved in this petition for certiorari of

whether the Commonwealth’s attorney, as the represen-

tative of the state, is prohibited from bargaining for

a plea of guilty by threatening to bring an additional

indictment if an accused does not accept a plea bargain

offer, was raised on direct appeal by Hayes to the Ken-

tucky Court of Appeals, the then highest appellate court

in the Commonwealth. Hayes argued that his Fifth,

Sixth and Fourteenth Amendment rights were abridged

by the prosecutor’s action in bringing the habitual crim-

inal charge. The Kentucky Court of Appeals affirmed

Hayes’ conviction on March 1, 1974, in an unreported

memorandum opinion saying Hayes had risked the max-

imum sentence of life imprisonment for a sentence of

five years and that he “cannot now complain of his bad

bargain.” See Appendix, 4c.

A Petition for a Writ of Habeas Corpus was filed

om June 11, 1975, in the United States District Court for

the Eastern District of Kentucky. A Magistrate’s Re-

port and Recommendation was also filed on June

11, 1975, wherein the opinion was that the petition was

“patently without merit.” See Appendix, 2d.

On September 9, 1975, Judge Bernard T. Moynahan,

Jr entered an order adopting the Magistrate’s Report

and Recommendation and thereby denied the Petition

ior Writ of Habeas Corpus. See Appendix, le.

After an Application for Certificate of Probable

Cause was filed in the United States District Court on

5

October 9,°1975, Judge Moynahan entered an order on

December 19, 1975. declining to issue a Certificate of

Probable Cause and specifically finding that the appeal

sought was frivolous, not taken in good faith, and not pre-

senting a substantial question. See Appendix, Jt.

An appeal was taken to the Sixth Circuit Court of

Appeals. In an opinion rendered December 30, 1976,

the Sixth Vrcuit held that the Commonwealth had vie-

lated Hayes’ due process rights by placing him in fear

of retaliatory action’ for insisting on his constitutional

rights to stand trial before « jury. It is from this order

of the United States Court of Appeals for the Sixth Cir-

cuit that a review is sought.

REASONS FOR GRANTING THE WRIT

The Sixth Circuit has decided an important con-

stitutional question presented by this case which has not

been but should be decided by this Court.

The Sixth Circuit's decision severely erodes the role

of plea bargaining in the administration of criminal jus-

tice. The Sixth Circuit decision his instructed how

prosecutors may constitutionally use their plea bargaining

leverage. The position of the Sixth Circuit is that a

prosecutor may not seek an additional indictment, specifi-

cally under an enhancement statute, if an accused chooses

to stand trial rather than plead guilty to an offer made

by the prosecutor on the original charge. This Court

should note that this decision has no parallel by any other

federal court and that it is in direct conflict with the

opinion of the United States District Judge involved with

this case as well as being in direct conflict with the de-

cision of the Kentucky Court of Appeals.

The petitioner submits that the prosecutor's action

found to be constitutionally impermissible by the Sixth

Circuit Court of Appeals is no more vindiciive than is

any other aspect of the plea bargaining process and that

the leverage which may be applied by a prosecutor in

question in this case does not impose any unconstitutional!

penalty for the assertion of rights by one accused of a

felony.

The state to some degree acts in a coercive and vin-

dictive manner at every important step in the criminal

process. Apprehending and charging an individual are

both threatening acts by the state. Brady v. United States,

397 U.S. 742, 757 (1970). Plea bargaining which us-

ually follows being charged with crime is threatening, too.

By its very nature plen bargaining serves to grant cer-

tin concessions to an accused in the event a guilty plea

is entered. A prosecutor may agree to recommend a

particular sentence, to drop counts, to permit a plea to

a ser included offense, or to drop an enhancement pro-

vision in the indictment. Pfea bargaining is a vehicle

of the prosepective branch of the criminal justice system

and it is the prosecutor, not the accused, who is in

control. The risks involved in plea bargaining rests, how-

ever, exclusively upon the accused. If the bargain of-

fered by a prosecutor is not accepted, an accused must

face the risks of a harsher penalty upon conviction. Def- -

initely the plea bargaining process discourages assertion

of the Fifth Amendment right not to plead guilty. and to

—

7

deter exercise of the Sixth Amendment right to demand

a jury trial. Having to decide whether to compromise

these valuable constitu.ional rights has a considerable

coercive impact.

Nevertheless, this Court has unequivocally given its

approval to the process of plea bargaining. In Brady,

supra, at 752, this Court stated that plea bargaining helps

conserve judicial and prosecutorial resources in cases in

which there is no substantial issue as to the defendant's

guilt. The Sixth Circuit Court of Appeals recognized

on the present case that this Court has indicated that

there are limits to the tactics that 2 prosecutor may use

in bargaining with defendants and cites Santobello v.

New York, 404 U.S. 257 (1971). The Sixth Circuit

stated it was clear “that the legitimate purposes of plea

bargaining are not served if a prosecutor abuses his

powers in order to coerce an unwilling defendant into

foregoing his constitutional right to trial.“ Appendix, 4a.

The Sixth Circuit opinion is based substantially upon

holdings by this Court that defendants who assert pro-

cedural rights must be treated in a way that avoids any

suggestion of vindictive or retaliatory motive. In North

Carolina v. Pearce, 395 U.S. 711 (1969), this Court

considered the constitutional problems presented wherein

after a successful appeal and reconviction, the defendant

was sentenced to a greater punishment than he had re-

ceived at the first trial.

In Blackledge v. Perry, 417 U.S. 21, 28 (1974), this

Court held that when the circumstances pose a realistic

likelihood of vindictiweness, due process requires a rule

analogous to that of the Pearce case.

The Sixth Circuit’s reliance on these cases relative

to the procedure in question in the present case was mis-

placed. This Court’s holding in Pearce and Blackledge

and their lower court progeny all relate to situations

dealing with other than plea bargaining. These cases

involve retaliatory actions by the court or the prosecu-

tion after an attempt to exercise procedure rights has

been made by the defendant. In Pearce, the accused suc-

cessfully challenged his first conviction on appeal. In

Blackledge, the accused sought a trial de novo. In United

States v. Jamison, 505 F.2d 407 (D.C. Cir. 1974), the

accused had been granted a mistrial. In United States

v. DeMarco, 401 F. Supp. 505 (C.D. Cal. 1975), the ac-

cused had asserted his right to change of venue. In

united States v. Ruesga-Martinez, 534 F. 2d 1367 (9th

Cir. 1976), the accused had refused to sign a form waiv-

ing his right to be tried by a district judge. None of

these cases involved the plea bargaining process as existed

in the present case. Yet their holdings are cited in sup-

port of the Sixth Circuit’s decision striking down the

plea bargaining procedure used by the Commonwealth's

prosecutor in this case. Petitioner submits that the Sixth

Circuit's decision in this case illogically applied the sal-

utary Pearce principle, even as extended to prosecutorial

conduct in Blackledge, to a situation far removed from

the problem for which the principle was designed.

The question in this case should be whether the ef-

fects of the procedure used by the prosecutor impose an

impermissible burden upon the exercise of any right of

9

the accused. The prosecutor did not threaten physical

harm, nor threaten prosecution on a charge not justified

by the evidence, cither of which would be impermissible.

See Brady, supra, at 757 and 758 fin. 8. What the

prosecutor did in the present case was to create natural

coercive impact upon the accused through the plea bar-

gaining process with a promise of leniency for a plea

of guilty. At that point Hayes was faced with the Hob-

son’s choice of compromising valuable constitutional rights

out of the fear of greater punishment. The prosecutor

offered Hayes five years on a charge that carried a pos-

sible ten years in the penitentiary. The prosecutor had

foregone obtaining the habitual criminal charge against

Hayes but made it clear to him that he could go back

to the grand jury and have him indicted under the habit-

ual criminal statute because of his two prior existing

felony convictions. Hayes’ gamble in this process was

simply that he could escape conviction on the charge of

uttering a forged instrument. When he chose not to

plead guilty, the prosecutor upped the ante to pot limit

by obtaining the habitual criminal indictment.

The end result of the procedure used by the prose-

cutor in this case was no more vindictive so as to im-

pose an impermissible burden upon the assertion of any

right than is the frequent situation where a prosecutor in-

dicts on a principal charge and also. under the habitual

criminal statute and then bargains for a plea of guiliy

to the principal charge on the promise the prosecutor will

make a motion to drop the habitual criminal charge. The

difference between the leverage and coercive impact in-

volved in the present case and that in the procedure noted

10

above is nonexistent. The constitutional rights to be com-

promised are the same and the stakes for going to trial

are the same. The prosecutor is in both situations exer-

cising the same range of options available for leverage to

obtain a guilty plea so as to avoid going to trial. On the

one hand, the prosecutor, who has the discretion whether

to indict on the habitual criminal charge, seeks an in-

dictment on a principal charge plus the habitual criminal

charge and then seeks a plea of guilty and in return will

drop the habitual criminal charge. On the other hand,

the prosecutor indicts on a principal charge and attempts

to obtain a guilty plea, holding in reserve the possibility

of returning to the grand jury for indictment under the

habitual criminal statute if no guilty plea is obtained.

The Sixth Circuit’s decision finds in this case that one

way of arriving at the same stakes is vindictively moti-

vated while the other way of arriving at the same point

is an accepted practice in the useful process of plea bar-

gaining. The burden upon Hayes during the plea bar-

gaining procedure used in this case should be found to be

not unconstitutionally impermissible.

We believe further that it is inescapably necessary to

consider this case from the perspective of what the very

definite controlling law would be on the situation if Hayes

would have chosen to plead guilty and have taken the five

years on the uttering charge rather than having risked

facing the habitual criminal charge and the possibility

upon conviction of receiving life imprisonment. Clearly

such a possibility as this, which could have resulted from

the very practice proscribed by the Sixth Circuit, would

be found to be constitutionally permissible. A plea of

11

guilty motivated by a desire io avoid harsher punishment

has been found to be not involuntary if it is a well-con-

sidered, prudent choice of the lesser of two evils. Brady,

supra, and its companion cases, McMann v. Richardson,

397 U.S. 759 (1970). and Parker v. North Carolina, 397

U.S. 790 (1970). The Kentucky Court of Appeals, cit-

ing the Brady case, has stated that mental pressure placed

on a defendant, charged with serious crime, in being forced

to choose between accepting conviction of a less serious

offense, upon a plea of guilty, or instead, standing trial

under the habitual criminal statute was noi such that the

defendant was disabled from constitutionally waiving his

right to trial by jury. Padgett v. Commonwealth, Ky.,

493 S.W.2d 710 (1973).

For the foregoing reasons, if the decision of the

Sixth Circuit in the present case is allowed to stand, the

role of plea bargaining as an effective tool in the admini-

stration of criminal justice will have been significantly

diminished.

CONCLUSION

Petitioner submits that it is necessary for this Court

to review the decision of the Sixth Circuit which gave a

chilling construction to plea bargaining and took away an

important part of the prosecutor’s bargaining leverage.

Respectfully submitted,

7 ROBERT F STEPHENS

; ATTORNEY GENERAL

12

ROBERT L. CHENOWETH

ASSISTANT ATTORNEY

GENERAL

Capitol Building

Frankfort, Kentucky 40601

COUNSEL FOR PETITIONER

PROOF OF SERVICE

I, Robert L. Chenoweth, one of counsel for the peti-

tioner, hereby certify that three (3) copies of the fore-

going brief were mailed, postage prepaid, to Honorable

J. Vincent Aprile, II, Assistant Deputy Public Defender,

625 Leawood Drive, Frankfort, Kentucky 40601, this

March 4.2 _, 1977.

phat Lyre

Robert L. Chenoweth

Assistant Attorney General

Commonwealth of Kentucky

APPENDIX

A —

„r

—

la

No. 76-1409

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PAUL LEWIS HAYES, APPEAL from the

Petitioner-A ppellant, United States Dis-

v. trict Court for the

HENRY COWAN, Warden, astern District of

Respondent-A ppellee. Kentucky.

Decided and Filed December 30, 1976.

Before: PECK, McCREE, and LIVELY, Circuit

Judges.

McCREE, Circuit Judge. This is an appeal from the

denial of a petition for habeas corpus challenging confine-

ment based on Hayes’ conviction of being an habitual cri-

minal under Kentucky's recidivist statute, K. R. S. 8431.

190.“ The district court referred the petition to a magi-

At the time of appellant’s conviction the statute provided:

Conviction of felony; punishment on second and third

offenses. Any person convicted a second time of felony

shall be confined in the penitentiary not less than double

the time of the sentence under the first conviction; if con-

victed a third time of felony, he shall be confined in the

penitentiary during his life. Judgment in such cases shall

not be given for the increased penalty unless the jury finds,

from the record and other competent evidence, the fact of

former convictions for felony committed by the prisoner, in

or out of this state.

It has since been repealed. According to §532.080, which now

Paul Lewis Hayes v. Henry Cowan

strate to determine whether leave to proceed in forma

pauperis should be granted pursuant to 28 U.S.C. §1915

(a). Although the magistrate ordered the petition filed

and determined that petitioner’s claims were not so frivo-

lous that in forma pauperis leave should not be granted,

nevertheless, he concluded that the contentions made were

“patently without merit” and recommended that the peti-

tion be dismissed. The district court adopted the magi-

strate’s conclusions and, instead of issuing an order to

the respondent to show cause as provided in 28 U.S.C.

§2243, it dismissed the petition on the grounds that the

mandatory life sentence imposed for the habitual criminal

conviction did not constitute cruel and unusual punishment,

that petitioner had not been arbitrarily selected for prose-

cution as an habitual criminal, and that the state prosecu-

tor’s decision to seek an habitual criminal indictment when

petitioner refused to plead guilty to the charge of forgery

in return for a recommendation of a five-year sentence

was not an unconstitutional implementation of plea bar-

gaining.

We issued a certificate of probable cause to permit

an appeal when the district court, determining that an

regulates “persistent felony offender sentencing,” the special

sentence may be imposed only if, for each of two previous felony

convictions, the sentence was at least one year; defendant was

imprisoned under each such sentence before commission of the

instant felony ; and the offender was over eighteen years of age

at the time he committed each offense. Petitioner would not

have been subjected to enhanced sentencing under — *

cause none of hese conditions were satisfied. — ae

3.

Paul Lewis Hayes v. Henry Cowan

appeal would be frivolous and not taken in good taith,

declined to do so. Because we conclude that petitioner was

denied the due process of law by the prosecu.or’s tactics,

we reverse.

The facts which led to petitioner's conviction and

incarceration are not disputed.’ On January 8, 1973, he

was indicted for forgery of a check in the amount of

$88.30 by a Fayette County, Kentucky grind jury. After

arraignment, a pretrial conference was held with the state

prosecutor. During this conference, the prosecutor offered

to recommend a five year sentence if Hayes would plead

guilty. Petitioner was warned that if he did not plead

guilty, he would be charged under the habitual criminal

statute. He refused to plead guilty, but insisted on re-

ceiving a full trial. The prosecutor thereupon returned to

the grand jury, and, on January 29, 1973, obtained a new

indictment charging petitioner under the habitual criminal

statute based upon the forgery as a third offense. Peti-

tioner was convicted by a jury, and on the instructions of

the judge, the mandatory life sentence for a third offense

habitual criminal was imposed.’

"These facts were admitted by the prosecutor during his

cross-examination of appellant at the enteneing trial

. isn't it a fact that I told you if you did not intend to

save the court the inconvenience and necessity of a trial and

taking up this time that | intended to return to the grand

jury and ask them to indict you based upon these prior

felony convictions?

*We expressed our disapproval of such practices m Cunning-

4a

Paul Lewis Hayes v. Henry Cowan

We recognize that plea bargaining now plays an im-

portant role in our criminal justice system. In United

States v. Brady, 397 U.S. 742, 752 (1970), the Supreme

Court approved the practice, and stated that plea bargain-

ing helps to conserve judicial and prosecutorial resources

in cases in which there is no substantial issue about the

defendant's guilt. The Court has recognized, however,

however, that there are limits to the tactics that a prosecu-

tor may use in bargaining with defendants. See Santo-

bello v. New York, 404 U.S. 257 (1971). The Court has

not yet had an opportunity to explore fully these limits,

particularly in cases such as this, “where the prosecutor

. deliberately employed[ed his] charging . . powers

to induce a particular defendant to tender a plea of

guilty.” Brady, supra, at 751 n8. But it is clear that

the legitimate purposes of plea bargaining are not served

if a prosecutor abuses his powers in order to coerce an un-

willing defendant into foregoing his constitutional right

to trial.

ham v. Wingo, 443 F.2d 195, 198 n.1 (1971). in that case we

noted the findings of the Presidents Commission of Law En-

forcement and Adminstration of Justice in The Challenge of

Crime in a Free Society (1967):

he aun Oe Se ES ee Soe ae &

subject to serious abuses. In hard-pressed court

Sa

Paul Lewis Hayes v. Henry Cowan

The Supreme Court has held that defendants who

assert procedural rights must be treated in a way that

avoids any suggestion of vindictive or retaliatory motive.

In North Carolina v. Pearce, 395 U.S. 711 (1969), the

Court held that a defendamt may not be subjected to a

more severe penalty on retrial after a successful collateral

attack against a conviction. The Court reasoned that duc

process requires that a defendant be free from fear of

retaliatory action when he asserts procedural rights.

Therefore a defendant may not be dealt with more harshly

on retrial unless the permissible reasons therefor affirma-

tively appear.

In Blackledge v. Perry, 417 U.S. 21 (1974), the Court

applied the rule expressed in Pearce to protect defendants

from the vindictive exercise of a prosecutor's discretion. In

that case, a defendant in a misdemeanor prosecution had

asserted his right to a trial de novo on appeal. Before the

new trial, the prosecutor obtained a felony indictment

against the defendant. The Court held that this tactic, if

allowed would deter defendants from asserting their pro-

cedural rights. The Court emphasied that the prosecution

should not be allowed to behave in a manner that even

suggests a retaliatory motive.

The concerns expressed in Blackledge have persuaded

several lower courts to limit the prosecutor's discretion in

not plead Such practices place unacceptable burdens

not the who legitimately insists upon hi- right ¢ to

— * * ©” (Emphasis supplied.)

6a

Paul Lewis Hayes v. Henry Cowan

related situations. In United States v. Jamison, 505 F.2d

407 (D.C. Cir. 1974), the court reversed a conviction of

first degree murder obtained after the defendants had

been granted a mistrial during an earlier trial based on an

indictment for second degree murder. In United States

v. DeMarco, 401 F. Supp. 505 (C.D. Cal. 1975), the

court refused to allow prosecution of an indictment ob-

tained after a defendant had asserted his right to a change

of venue of a trial on an indictment charging less serious

offenses. In United States v. Ruesga-Martinez, 534 F.

2d 1367 (9h Cir. 1976), the court held that a defendant

cannot be tried on a felony indictment after he has re-

fused to plead guilty to a misdemeanor, if no justification

of the increase in severity of the charges is offered. See

also United States v. Gerard, 491 F.2d 1300 (9th Cir.

1974); United States v. Butler, 515 F. Supp. 394 (D.

Conn. 1976); Sefchek v. Brewer, 301 F. Supp. 793 (D.

Iowa 1969).

We hold that a similar potential for impermissible

vindictiveness, exists when a prosecutor is allowed to

bring an habitual offender indictment against a defendant

who has refused to plead guilty to an indictment for the

same unenhanced substantive offense. In this case the

prosecutor does not assert that any event occurred be-

tween the issuance of the first indictment and the issuance

of the second to influence his decision except petitioner’s

insistence upon his right to trial. There is no indication

that the prosecutor, had he thought such an indictment

Za

Paul Lewis Haves v. Henry Cowan

proper, could not have included the habitual criminal

charges in the original indictment.

The Commonwealth urges that the entire concept

of plea bargaining will be destroyed if prosecutors are not

allowed to seek conviciions on more serious charges if

defendants refuse to plead guilty. We do not agree. Al.

though a prosecutor may in the course of plea negotia-

tions offer a defendant concessions relating to prosecu-

tion under an existing indictment, see ('nited States ex

rel. William v. McMann, 436 F.2d 103 (2d Cir. 1970),

cert. denied, 402 U.S. 914 (1971), he may not threaten a

defendant with the consequence that more severe charges

may be brought if he insists on going to trial. When a

prosecutor obtains an indictment less severe than the facts

known to him at the time might permit, he makes a dis-

cretionary determination that the interests of the state

are served by not seeking more serious charges. Cf.

United States v. Johnson, 537 F.2d 1170 (4th Cir. 1976).

Accordingly, if after plea negotiations fail, he then pro-

cures an indictment charging a more serious crime, a

strong inference is created that the only reason for the

more serious charges is vindictiveness. Under these cir-

cumstances, the prosecutor should be required to justify

his action. In this case, a vindictive motive need not be

inferred. The prosecutor has admitted it.

Therefore we hold that due process has been of fended

by placing petitioner in fear of retaliatory action for in-

sisting mom his constitutional right to stand trial. Ac-

cordirgly, the dismissal of the petition is reversed and

8a

Paul Lewis Hayes v. Henry Cowan

the case is remanded with instructions to order petition-

er's discharge except for his confinement under a lawful

sentence imposed solely for the crime of uttering a forged

instrument.

—

A. No.

X10 All right, what is cop-out court, if that is not right?

A. Cop-out to me is that... uh... you offered me a

five-year plea and you told me if I didn’t take five

years that you would indict me on the habitual cri-

minal. That is what you done.

X11 All right, was the Judge there?

A. No.

X12 Was the jury there?

A. No.

X13 Was your lawyer there?

A. That's right, yes.

X14 And, I was there?

A. Yes.

X15 And, I made these statements to you all both in the

presence of both of you, didn’t I?

A. No.

X16 I didn’t talk to you privately, did I?

A. No.

2b

X17 Your lawyer, Mr. Wake, was there during the en-

A.

tire time, wasn’t he?

That’s right.

X18 And, then, I left you and Mr. Wake alone to discuss

X19

X22

it by yourself -- by yourselves in a room by your-

selves ?

No, no, no.

You and Mr. Wake did not discuss this matter by

yourselves in a room and I left and, then, later I

came back and asked what you wanted to do?

No, you walked out of the room and you threatened

me with the habitual criminal, you know, and --

And, then I walked out of the room, didn’t I?

You walked out of the room.

And, I told you that the law was that there was a

habitual criminal act that I had to place against you?

No, you did not tell me that; you told me that you

was indicting me on the “hibitch” if I didn’t take

the five-year plea. That is what you told me.

Isn't it a fact that I told you at that time if you

did not intend to plead guilty to five years for this

charge and that they had caught you iside and that

your accomplice had made a statement against you

-- isn’t it a fact that I told you at that time that if

X23

X24

X25

X26

3b

you did not intend to save the court the inconvenience

and necessity of a trial and taking up this time that

I intended to return to the grand jury and ask them

to indict you based upon these prior felony convic-

tions ?

No.

I did not tell you that I was going to return to the

grand jury?

No.

I told you out of my own --

You told me that you was going to indict me -- you

told me you was going to indict me on the habitual

criminal and you called me back over here the fol-

lowing week on a Friday and I. . . answered the

indictment on the habitual criminal. That was it.

That was all that you told me.

You were arraigned on that charge that the grand

jury had brought against you, weren’t you?

On the “hibitch..”

And, you were asked how you pled to the charge,

weren’t you?

Yes.

4b

X27 And, at that time, you had a lawyer present too,

didn’t you?

A. Yes.

X28 In fact, you have had a lawyer throughout these

proceedings, haven’t you?

A. Sure, yeh.

X29 Now, when you first went to the Reformatory in

1962, you were eighteen years old, is that right?

A. Right.

X30 And, at that time, did you learn what the habitual

criminal was?

A Yeh, I learned that, yeh.

X31 What is the name that the people have at the peni-

tentiary for the habitual criminal?

A. The “hibitch.”

le

RENDERED: MARCH 1, 1974

COURT OF APPEALS OF KENTUCKY

FILE NO. 73-766

PAUL LEWIS HAYES ................... APPELLANT

V. APPEAL FROM FAYETTE CIRCUIT COURT

HONORABLE JAMES PARK, IR. JUDGE

INDICTMENT NOS. 73-C-26, 73-C- 29

COMMONWEALTH OF KENTUCKY ...... APPELLEE

MEMORANDUM OPINION OF THE

COURT BY JUSTICE JONES

AFFIRMING

(Not to be cited as authority)

Paul Lewis Hayes was convicted in the Fayette

Circuit Court on a two-count indictment, charging him

in Count No. 1 with the principal offense of uttering a

forged instrument, under KRS 434.130, and in Count No.

2 of having been convicted of two prior felonies, under

KRS 431.190. The trial court first tried Hz yes on the

principal offense of utterirg a forgery, and then he was

tried under the habitual criminal statute.. The jury found

him guilty on both counts and fixed his punishment at

confinement in the state penitentiary for life. Upon this

appeal, Hayes contends: (1) the trial court erred in fail-

ing to direct a verdict in his behalf. he contending that

the evidence was insufficient to support the conviction;

2c

(2) the trial court erred in failing to instruct the jury

as to the requirement of corroboration of the testimony

of an accomplice; (3) he was denied due process and

equal protection of the law by the habitual criminal con-

viction because the mandatory life sentence required by

the statute is cruel and unusual punishment.

We have examined the evidence, and we are con-

vinced that it establishes that appellant participated in

the crimes with which he is charged. The Commonwealth

proved that appellant presented a check to the Pic Pac

grocery; that the check presented was stolen from Brown

Machine Works; and that the check did not bear an au-

thorized signature. Thus there was an inference that

Hayes either had forged the unauthorized signature or

knew it to have been forged. It was incumbent on him

to satisfactorily explain the uttering or the forgery.

In Smith v. Commonwealth, Ky., 307 S.W.2d 201,

1957), we stated:

When the evidence shows the name attached to the

instrument has been forged, the inference arises

that the person who uttered it as genuine either

forged the instrument or knew it to be forged, and

unless the uttering or forgery is explained satisfac-

torily, the presumption becomes conclusive.” Smith

v. Commonwealth, supra, 203.

Appellant’s next contention, that the trial court

shouid have given an instruction as to the requirement

of corroboration of an accomplice’s testimony, is wholly

without merit. Appellant failed to object to the instruc-

tions in the trial court. The failure constituted a valid

3c

waiver so as to preclude Hayes from securing a reversal

of his conviction upon the basis of any alleged error there-

in. Rr 9.54(2); Johnson v. Commonwealth, Ky., 477

S.W.2d 159 (1972); Alsip v. Commonwealth, Ky., 482

S.W.2d 571 (1972).

Hayes next argues that his constitutional rights were

abridged by the habitual criminal charge and by his sub-

sequent conviction thereunder. He complains of the lev-

erage available to the Commonwealth’s Attorney in decid-

ing whether or not to have an accused indicted under the

Habitual Criminal Act, KRS 431.190.

In a pre-trial conference in this case, the Common-

wealth's Attorney offered to recommend a five-year sen-

tence if Hayes would plead guilty to the charge of utter-

ing a forgery. This he refused to do although he was

advised by the prosecutor that the case would be resub-

mitted to the grand jury for a new indictment under the

Habitual Criminal Act. Based upon our holding in Cun-

ningham v. Commonwealth, Ky., 447 S.W.2d 81 (1969),

we conclude that it was not error for the Commonwealth’s

Attorney to resubmit the case to the grand jury. We have

said:

“Assuming, however, that the Commonwealth’s At-

torney was still in a position, in the event Cunning-

ham had then chosen to plead not guiliy, to resub-

mit the cases to the grand jury and ask for new in-

dictments under the Habitual Criminal Act, we are

of the opinion nevertheless that this is not the kind

of pressure that could be held to affect the voluntari-

ness of a guilty plea. A person charged with a cri-

4c

minal offense always is under the pressure of risk-

ing a maximum sentence at the hands of the jury or

the court if he does not accede to what the Common-

wealth is willing to recommend. The more serious

the offense, the greater is the pressure, and it is

even more so when the Commonwealth has a strong

case. To say that the attorney for the Common-

wealth could not use these advantages in discussing

the terms and prospects of settlement on the basis

of a guilty plea would mean simply that there could

be no such settlements. We are unwilling to accept

that result.” Cunningham v. Commonwealth, supra

83.

Here Hayes risked the maximum sentence of life

imprisonment for a sentence of five years. He cannot now

complain of his bad bargain.

Finally Hayes argues that a mandatory life sentence

under the Habitual Criminal Act in his case is too severe

a penalty, constituting cruel and unusual punishment. In

light of the previous felonies of which he had been con-

victed, viz., detaining a female against her will (a lesser

included offense of rape), and robbery, we think the

punishment is not too harsh. We have held the Habitual

Criminal Act, KRS 431.190, to be constitutional. Barber

v. Thomas, Ky., 355 S.W.2d 682 (1962).

The punishment authorized by the statute was not

wrongly or disproportionately applied to the appellant.

Accordingly, the judgement is affirmed.

All concur.

Sc

ATTORNEYS FOR APPELLANT:

Anthony M. Wilhoit

Paul F. Isaacs

Office of Public Defender

625 Leawood Drive

Frankfort, Kentucky 40601

ATTORNEYS FOR APPELLEE:

Ed W. Hancock

Attorney General

Robert L. Chenoweth

Assistant Attorney General

Capitol Building

Frankfort, Kentucky 40601

14

FILED JUNE 11, 1975

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

LEXINGTON

PAUL LEWIS HAYES ................... PETITIONER

vs. MAGISTRATE’S REPORT

AND RECOMMENDATION

NO. 75-61

HENRY COWAN, Warden, Etc. ......... RESPONDENT

The petitioner, alleging that he is incarcerated in

the State Penitentiary at Eddyville, has tendered for

filing a petition for writ of habeas corpus. He has filed

therewith a motion for leave to proceed in forma pauperis,

which motion is supported by an affidavit of poverty. In

accordance with 28 U.S.C. §636(b), and pursuant to a

General Order of this Court, the aforesaid documents

have been referred to the undersigned Magistrate for

In his tendered pleading he petitioner alleges that

his confinement is the result of his convictions, following

a bifurcated trial, of the offenses of forgery and of being

a habitual criminal. He contends that his conviction as

a habitual criminal violates his constitutional rights in

that the mandatory sentence of life imprisonment imposed

upon such conviction amounts to cruel and unusual punish-

ment in that the selective application of Kentucky's habi-

tual criminal statute causes said life sentence to amount

to cruel and unusual punishment; and in that the “vindic-

tive” application of the habitual criminal statute to the

petitioner violates his right to due process of law. A copy

of an opinion of the Kentucky Court of Appeals attached

to the tendered petition demonstrates that the petitioner

has presented substantially identical contentions to the

Kentucky courts by direct appeal.

In the opinion of the Magistrate, the tendered peti-

tion is patently without merit. As held in Oyler v. Boles,

368 U.S. 448, 451 (1962), “the constitutionality of the

practice of inflicting severer criminal penalties upon ha-

bitual offenders is no longer open to serious challenge”.

Moreover, only in the deliberate presence of such factors

as race, religion or other arbitrary classification will the

courts review the exercise of prosecutorial selection and

discretion, even when the exercise of such discretion

results in different treatment of co-defendants originally

charged with the same offenses in the same case. Oyler

v. Boles, supra at page 456; United States v. Bland, 472

F.2d 1329. 1336 (D.C. Cir. 1972). cert. denied 412 U.S.

909,

There is authority for the proposition that any sen-

tence, including a mandatory sentence of life imprison-

upon conviction of being a habitual criminal, may amount

to cruel and unusual punishment, if wholly disproportion-

ate to the nature of the underlying offense and unneces-

sary to the achievement of any legitimate legislative pur-

pose. Weems v. United States, 217 U.S. 349 (1910);

Hart v. Coiner, 483 F.2d 136, 143 (4th Cir. 1973), cert.

denied 415 U.S. 938. However, as noted by the Kentucky

3d

Court of Appeals in the instant case, the convictions un-

derlying the petitioner’s habitual criminal conviction were

detaining a female (a lesser included offense of the charge

of rape), robbery and forgery. As conceded by the peti-

tioner, the subject felonies occurred during a 12 year pe-

riod beginning when the petitioner was 17 years old. One

convicted of violating Keniucky’s h«bitual criminal sta-

tute is not thereby rendered ineligible for parole, and,

in the opinion of the Magistrate, it cannot be said that it

is shocking, disproportionite or unnecessary to a legiti-

mate legislative purpose to require one with a record such

as that admitted by the petitioner to serve a substantial

period of actual incarceration and to be subject to parole

supervision for the rest of his life.

The petitioner's remaining complaints derive from

the fact that not all Kentucky defendants having prior

felony convictions are prosecuted under the state’s habi-

tual criminal statute and that the petitioner was so pro-

secuted only upon his refusal to pleid guilty to the sub-

stantive offense of forgery, in return for a five year sen-

tence. It is well settled that there is nothing unconstitu-

tional, per se, in the concept of plea harg ining and that

a defendant's constitutional rights are not violated by

forcing him to choose between n lesser penalty, in return

for the entry of a plea of guilty, as opposed to exposing

himself to the risk of a greater penalty if he elects to be

tried upon a plea of not guilty. Sawtohello v. New York,

404 U.S. 257 (1971): North Carolina v. Alford, 400 U.S.

25 (1970). If prosecutors were precluded from secking

conviction of more serious offenses following rejection

by defendants of the opportunity to plead guilty to lesser

4d

offenses, the entire concept of plea bargaining would be

effectively destroyed, and, as noted previously herein, in

the absence of some claim of invidious discrimination, a

defendant’s rights are not violated simply because a pro-

secutor m elect to use the leverage of an applicable ha-

bitual criminal statute against him, while not use the

same leverage against other defendants.

In summary, it would appear that the petitioner's

position was well stated by the Kentucky Court of Ap-

peals in the opinion appended to the tendered petition.

As noted by that Court, the petitioner risked the maximum

sentence of life imprisonment for a sentence of five years.

He cannot now complain of his bad bargain.

The Magistrate will this day enter an Order grant-

ing the petitioner leave to proceed in forma pauperis and

directing that the petition for writ of habeas corpus here-

tofore tendered by the petitioner be filed herein. How-

ever, for those reasons discussed above, it is the Magi-

strate’s recommendation that said petition be denied and

that this action be dismissed.

This 11th day of June, 1975.

% David K. Irvin

David R. Irvn, U.S. Magistrate

FILED SEPTEMBER Y. 1975

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

LEXINGTON

PAUL LEWIS HATE PETITIONER

VS: ORDER CIVIL 75-61

HENRY COWAN, Warden, Etc. ......... RESPONDENT

Ee fz a *

The Court having considered the entire record here-

in, including the Magistrate's Report and Recommenda-

tion heretofore filed herein on June 11, 1975, and being

sufficiently advised;

IT IS NOW THEREFORE ORDERED AND

ADJUDGED HEREIN AS FOLLOWS:

(1) That the Magistrate’s Report and Recommenda-

tion heretofore filed herein be and the same is hereby

adopted, confirmed, approved, allowed and established as

and for the Court's Findings of Fact and Conclusions of

Law herein .

(2) That the petitioner’s Petition for Writ of

Habeas Corpus be and the same is hereby denied.

(3) That this cause be and the same is hereby dis-

missed.

This the 9th day of September, 1975.

/s/ Bernard T. Moynahan, Jr.

Bernard T. Moynahan, gr, Judge

Notice is hereby given of the entry of this order or

judgment on September 9, 1975.

Davis T. McGarvey, Clerk

By Josephine II. Elam, D.C.

if

FILED DECEMBER 19, 1975

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

LEXINGTON

PAUL LEWIS HAYES ................... PETITIONER

VS: ORDER CIVIL 75-61

HENRY COWAN, SUPERINTENDENT

KENTUCKY STATE PENITENTIARY .. RESPONDENT

- = 2 & &

This petition for a Writ of Habeas Corpus is

grounded on the claim of petitioner that his conviction as

a habitual criminal violates his constitutional rights in

that: the mandatory sentence of life imprisonment im-

posed upon such conviction equates to cruel and unusual

punishment; the selective application of Kentucky’s habi-

tual criminal statute causes said life sentence to amount

to cruel and unusual punishment; and the allegedly vin-

dictive” application of the habitual criminal statute to the

petitioner violates his due process of law.

The claim that the mandatory life imprisonment sen-

tence imposed upon one convicted of the Kentucky habi-

tual criminal statute equates to cruel and unusual punish-

ment is clearly without merit. As was well stated in Ovler

v. Boles, 368 U.S. 448, 451 (1962):

“ . the constitutionality of the practice of inflict-

ing severe criminal penalties upon habitual offend-

ers is no longer open to serious challenge“.

Moreover, absent some arbitrary classification, the

courts will abjure the review of prosecutorial discretion,

albeit the exercise of such discretion may result in differ-

ent treatment of co-defendants originally charged with

identical offenses in the same case. Oyler v. Boles, supra

at page 456.

The Court observes that the convictions undorlying

the petitioner’s habitual criminal conviction were crimes

of a most serious nature and thereby concludes that the

sentence received upon conviction of being a habitual cri-

minal was not disproportionate to the nature of the un-

derlying offenses, and that the mandatory sentence im-

posed was necessary to the achievement of a legitimate

legislative purpose.

Petitioner’s remaining claims emanate from the fact

that not all Kentucky defendants having the requisite

number of prior felony convictions are prosecuted under

the state’s habitual criminal statute and that petitioner

was so prosecuted only upon his refusal to plead guilty

to the substantive offense of forgery in return for a five

(5) xear sentence.

It being well established that the concept of plea

bargaining. pur se, is not unconstitutional. Santobollo v.

New York, 404 U.S. 257 (1970). It is apparent from a

review of the record in that no oncroachment was made

upon petitioner’s constitutional rights, that the petitioner

chose to risk the maximum sentence of life imprisonment

under the Kentucky habitual criminal statute by electing

to proceed to trial, rather than accepting a sentence of

five (5) years in return for a plea of guilty to the for-

gery charge then lodged against him.

3f

The petitioner, therefore, has no cause for complaint

merely because his “choice” resulted in a substantially

groater sentence than would have otherwise been im-

posed had no accepted to proffered “bargain”.

The Court specifically finds that the appeal sought

herein is frivolous, is not taken in good faith, and does

not present a substantial question, and same is therefore

denied and the Court declines to issue a Certificate of

Probable Cause herein.

This the 19th day of December, 1975.

/s/ Bernard T. Moynahan, Jr.

Bernard T. Moynahan, Jr., Judge

A True Copy Attest:

Davis T. McGarvey, Clerk

U.S. District Court

By Josephine H. Elam, D.C.