Petition for Writ of Certiorari — MacDougall v. Bailey

Supreme Court brief1968

Ask Donna

What actually matters in this document.

Text

SUPREME COURT: th a 3}. wok

7 “JUL 27 1968

Supreme Court of the United 4 he . — a

"OCTOBER TERM, 198 = „

RAY BAILEY, RESPONDENT

, versus ;

‘ELLIS MacDOUGALL, DIRECTOR OF THE DEPARTMENT OF

CORRECTIONS FOR THE STATE oF Sours Caroxra, et al.,

Fre

PETITION FOR A WRIT OF CERTIORARI TO THE 1

UNITED STATES COURT OF APPEALS ai a

FOR THE FOURTH CIRCUIT.

—

—ů—

J 8

Be DANIEL R. McLEOD, Rae:

Attorney General,

Columbia, 8. C.,

EDWARD B. LATIMER,

Assistant Attorney General,

| Columbia, S. C

ii 2 ee Counsel for Petitioners.

The R. L. Bryan Company, Legal Printers, Columbia, S. C.

| ‘ 5

ee mmm

mee, vssseeesessaceesdogegees WE

Citation of Opinions Belo . . Ʒ .. 2

Questions Presented 8 e mn

Constitutional Provisions Involved ................ —

Statement of the Ca4skũ . =.

“Reasons for Granting’ Writ . 6

Question One (1) . e , Me.

Question Two (2) . . 29

—— 0 ¹·¹·Ü¹—¹ꝛͤĩ ÜL;̃

Appendix Inden N . . e 3

et 11)

@eeeeeveedece oasis ote

’

7 +

* *

322

ee.

—

—— 6

“>

ee.

i wor

—

ee : | AUTHORITIES CITED V

Cases: Sek ee

Anderson v. N. O 221 F. Supp. $80 (w. D. K. d. 1963) . 24

Bailey v. MoDongall, 247 8. C. 1, 145 8. E. (24) 425 4

(965) . a e sap 2.616, 27, 36

Bailey v. MacDougall: . F. Supp. .... „ decided 23 :

August, 1967 (P. C. K eeeeree e Re 29

Bailey v. MacDougall, 02 F. (2d) 155 40, decided

28 February, 1968 —2—ͤ—ꝗͤ4—9j„—õ 55355õ3õ ũ ( —h— 1, 2

Bailey v. MacDougall, ..... F. (2a) , decided 9

April, 1968 e 8 . 7 im 2

Bailey v. S. C., 384 U. S. 962, 86 8. Ct. 1589 (1966) 1

— v. Warden, Maryland Nimm, 331 F. (2)

e e 8

Sache Gladden, 220 F. Supp. 308 (D. Ore. 1963) 24

Berger v. United States, 295 U. S. 78 (935) 7

Brady v. Maryland, 373 U. S. 83 (1968) t q 8

Brown v. Smyth, 271 F. (2d) 227 (4 Cir. 1959) .. 18

Carroll v. MacDougall, 248 S. C. 141, 149 8. E. (28) 343

o Wa 14, 42

r N v. Nahe, 141 Pa. Seen. 408, 15 A. 00 *

: G W W ca: 8 *. 42

Cortes v. U. S., 337 F. (2d) 699 (1964): 26

Dillon v. U. S. 307 F. (20) 445 (CA9, 1962 25

5 Bilis v. Boles, 261 F. Supp. 1021 (D. C. N. D. W. Va

„„ VVVVVVVVVVVPVV vcnkasue: 12

_ Evans v. Kropp, 254 F. Supp. 21% 6B. D. Mich. 1966) . 8

Ex Parte Darling, 120 Nebr. 829, 235 N. W. 5822 0

Ex Parte Farrar, 74 Okla: Cr. 390, 126 P. (2d) 547 .... 21

* 5 ‘ani

> Yee ‘ a =

1 AUTHORITIES CITED—Continned ee

Cases: Paar

rg Noia, 372.0. 8 391, $3 8. Ct. 822, 91. Ea. (

Fernandez. v. Klinger, 346 F. (2d) 210 9 Cr. 1965) .

| Harris v. U. S., 216 F. (2d) 953 (5 Cir. 1954) ae 10

Kadwell v. H. S., 315 F. (2d) 667 (CAS, 1 5 cone 25

_ Kireheval v. U. G., 274 U. S. 220 (1927) ....:.43 12 0

Lobaugh v. State, 266 Ind, 548, 82 N. E. (2d) 247 20

Machibroda v. U. S., 368 U. S. 487 (1962) ......10, 12, 24

McGrady v. Cunningham (CA4, Va.), 296 F. (2d) 600,

96 A. L. R. (2d) 1286, cer. den, 369 U. S. 856, 9 L. Ed.

(2d) 14, 82 S. ao. 16

Mooney v. Holohan, 204 U. S. 103 (1938) . 7

Napue v. TMinois, 360 U. S. 264 (189 8 po

+ Nutt v. U. S., 335 F. (2d) 817 (10 Cir. 1964) 13

People v. Painter, 29 Cal. Reptr. „„

People v. Schmidt, we Th. , A) 22¹ñ, 139 N. 1. (2d)

726 (1957 )) e AD

a People v. Salven, 276 App. Div. 1087, 96 N. J. S. (20

Plyle v. Rapti 317 U. S. 218 (1542) . 2

Shelton v. U. S., 246 F. (2d) 571 (CAS, 107%) . . ie 25

"Shelton v. U. S., 242 F. (2d) 101 (5 Cir. 1957 q 5

State of 8. C. v. Bailey, 289 U. 8. 412 ( 8

State v. Chasteen, 228 S. C. 88, 88 8. E. (2d), 880 (1955) 14

State v. Miller, 84 A. (2d) 459, 16 N. J. Super. 251; Cert.

die³n,, 72 8. Ct. 379, 342 U. 8.984, 96 L. Ed. 698 0

State v. Monzon, 281 8. C. 655, 98 E. (2d) 672 (1957) 14

‘Thomas v. U. 8. 290 P. (2d) 696 (9 Cir. aid —j — Et

~ 5 „

Oases: oat Pads

Thomas’ v. ‘Werden, ‘Maryland Penitentiary, 236° F.

Supp. 499 (1964) —ꝑ(̊B .. 1 9 25

Thompson v. State, 248 8. 0. 4155 151 S. E. (2a) 221

n „en bansiotandre ents vavans seat 14, 2

v. State; 244 8 C. 259, 136 8. E. (2a) 300 1

(1964) o 2 ＋1. e i

V. S. v. Davis, 212 F. (24) 264 (7 Cir. 1954) 1 ove DD.

U S. v. Marin, 265 F. (2d) 241 (3 Cir. 1959) 87 ogee 12

V. S. v. Rizzo, 362 F. (2d) 97 (7 Cir. 1966) Pere

us. v. Swaggerty, 218 F. (2d) 875. (7 Cir. 19550 „

1 S. ex rel. Almeida v. Baldi, 19⁵ * (2d) 815 (3 d.

Ci. 11 ùhõhh „„

* S. ex rel. Mosigonsiry v. Ragen, 86 F. Supp. 382

(N. D. DL, 15400 6 . fr. i See

v. S. ex rel. Staplers v. Pate, 222 F. Supp. 998. 0 D.

.. lsh pode eee cebon 8

U. S. ex rel. Thompson v. Dye, 21 F. (2d) 763 3 Cir.

1955) „J CC

Voanater v. Boles, 1 sheet, No. 10726, dated 24

allact v. Heinz, 351. F. (2d) 39 (9 Cir. 1965) 1¹

v. Kaiser, 323 U. S. 47¹ (1945) 8 25

Mes ice an tie .

164 C. J. S. 643, Constitutional Law, See. 588 15, 20, 4

16A C. J. 8. 644, Constitutional Law, Sec. 588......... 20

16A C. J. S. 645, Constitutional ‘Law, Sec. 589 ...... oY

22 C. J. S. 1176 Crim. Law, Sec. 423 (1) .

22 C. J. S. 1176-1180, ‘Crim. Law, s Sec. 45 (2) 4 . 17

dv)

5 e

Mey 1967 (4 Cir. 1967) . .. 12, 13

AUTHORITIES CITED—Continued |

Encyclopedias and Texts: | Pian

22 C. J, S. 1181-1182, Crim. Law, Sec. 423 (3) . 18

22 C. J. S. 1183, Crim. Law, Sec. 423 (3) 18

22 C. J. S. 1183-1185, Crim. Law, Sec. 423 (4) 19

22 C. J. S. 1186, Crim. Law, Sec. 423 (4) . 19

* 22 C. J. S. 1188-1190, Crim. Law, Sec. 424 (1) 20

22 C. J. S. 1197-1198, Crim. Law, Ses 424 (5 20

39 C. J. S. 442, Habeas Corpus, Sec. 13 1 o

39 C. J. S. 520, Habeas Corpus, Sec. ꝶ99 20

14 Am. Jur. 951, Criminal Law, Section 270. 15, 41

14 Am. Jur. 953, Crim. Lan, See. 273 cea ‘Lewes’ 22

— e . 2²

2 A. L. R. (2d) 4 e 21 5

97 A. L. R. (ad) 549, . 9393 . .15, 43

Bia Ti e e e eee e eee ae 2 ‘

112 Univ. of Pa. L. R. 865 ............ 222222 23, 24, 25 |

50 Yale L. J. 10/7 8 ee . 22

4 Wharton’s Criminal Procedure, Section 1900, pp. :

767, „ 168 .. eee ee eee 15

Section 16-52, 1962. 8. C. Code of Laws 14, 30

Section 17-553.4, 1962 S. C. Code of Laws ......... 14, 30

5, American Bar Association, Canons of Pro-

, fellaional De ag . 7

Rule 11, Fed. R. Crim. Pro., 18 U. S. C. A. 8, 9, 17

24, 25, 39, 41

Ustitutes of Judicial Administration, A. B. A., Stand-

ards Relating to Pleas of Guilty (1967) . COOLS RA 34

; (a) he ae 5 9

9 N 2 F f . ‘ |

—

Stipreme Court of the United States

OCTOBER TERM, 1968

RAY BAILEY, Resronpenr -

5 0 7 . — 1

versus

ELLIS MacDOUGALL, Dmector or zun Daran oF

Corrections ron THE State or Sours CaRoOLANA, et al.,

PETITIONERS.

PETITION FOR 4 WRIT OF CERTIORARI TO THE

. UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT.

TO THE HONORABLE CHIEF JUSTICE AND AS-

SOCIATE JUSTICES OF THE SUPREME N

COURT OF THE UNITED STATES:

Your petitioners pray that a writ of certiorart issue to

review the judgment othe United States Court of Appeals

for the Fourth Circuit in the case of RAY BAILEY, Ar-

PELLANT, versus ELLIS MacDOUGALL, Dmector or THE

DEPARTMENT OF Corrections ron THE State or Sours Cano-

luna, et al., Appattzes. The Fourth Circuit.denied a petition

by the State of South Carolina for a rehearing of this case

en banc by order filed on 29 April, 1968.~~

2 mn. . v. MacDovaayt. et al, Pros

CITATION TO OPINION BELOW

The opinion of the United States Court of Appeals for

the Fourth Circuit is reported as RAY BAILEY, Arrzr-__,

LANT, versus ELLIS MacDOUGALL, Dmector or tHe Dz-

PARTMENT OF CORRECTIONS FOR THE State or SoUrR Cant,

— (2d) 155 (4th Cir., 1968) and

is printed as Appendix F to this petition. The order of The

Fourth Circuit denying the Petition for a Re-Hearing,

Gated 29 Apeil, 1966, iq printed as Appendix G, to this Po-

tition. |

JURISDICTION

The judgment of the United States Court of Appeals

for the Fourth Cireuit was entered on 28 February 1968.

(see Appendix F.) On 29 April 1968 the Fourth Circuit

entered an order denying a petition for a rehearing of this

‘ease en banc which had been filed by the State of South

Carolina. (See Appendix G).

The. jurisdiction of this Court is invoked under 28

VU. S. Code, Seetion 1254(1).

' QUESTIONS PRESENTED

1. Was the guilty plea of the Appellant | .

ily with understanding of the nature oi the charge

2. Was the opinion of The Fourth Circuit in this 0

5 matter without basis in law or fact? 1

QONSTITUTIONAL PROVISIONS INVOLVED |

_, The Pourtesnth Amen(iment to the Conetitution of the

United States provides as follows:

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

‘

Balmer, Resrompent, v. MacDovaats st al, Perrrionsas 2

State deprive any person of · Iife, liberty, or property, —

without due process vf law; nor deny any person

within its jurisdietion the protection of the laws.”

The~Fifth Amendment to the Constitution of the

United States provides as follows:

“No person shall be held to answer for a capital

or otherwise infamous crime, unless on * presentment

or indictment of a grand jury, except in cases arising

in thé land or naval forces, or in the militia, when in

actual service in time of war or public danger; nor

shall any person be subject for the same offense to be

twice put in jeopardy of life or limb; nor shall be com-

pelled in any criminal case to be witness against

himself, nor be deprived of life, liberty or property,

without due process of law; nor shall private property

be taken for public use without just .

; STATEMENT :

Respondent, Ray S. Bailey, was indicted August 25,

1932, on a charge of murder in the Greenville County Court

. of General Sessions and tried in January, 1936, having

been extradicted to the State of South Carolina from the

State of North Carolina pursuant to the decision of the

U. S. Supreme Court in State of South Carolina v. Ray

Bailey, 289 U. S. 413 (1933). Respondent changed his Plea

to guilty of murder with recommendation to. the merey of

the Court, following the negotiation of an agreement, which

was reduced to writing, between the then solicitor, the chief

of Police and Respondent’s attorney, the agreement being

that the solicitor and Chief of Police would recommend a

pardon or parole after the Respondent had served a petibd—

not exceeding ten years. Neither the fact nor the contents

of the agreement was disclosed to the Court. The Re-

spondent was sentenced to be confined for a term of his

whole neteral — A. 1. Gaston, by eguer.dated

13 January, 1936. ; fo

4 e *

On May 4, 1964, the Respon@ent, through counsel, filed

a petition for a Writ of Habeas Corpus in the Court of

Common Pleas for Richland County, alleging that his re-

- gtraint under the above sentence was unlawful and in vio-

lation of his constitutional rights under both the State agd

ions, asserting among other things a

| of law and that his guilty plea was

induced by a romise that he would serve only ten years

or possibly less of the sentence. The Honorable John Grim-

ball, Judge, Fifth Judicial Circuit, issued the writ of ravens,

corpus, and hearing were held.

Mr. C. G. Wyche, counsel for Bailey, and Mr. J. 0.

Leather wood, the Solicitor of the Thirteenth Judicial Cir-

cuit in 1936, offered testimony in the habeas corpus pro-

ceeding stating that they entered into negotation concern-

ing a possible guilty plea. Mr. Leatherwood and.

Smith, Chief of Police of Greenvi

ment ‘dated 13 January, 1936, whi

Wyche. The statement reads to wit:

event that Ray Bailey enters a plea of guilty with rec-.

ommendation to mercy in the case now pending against

him in the General Sessions. Court for Greenville

County, that I will, knowing the facts of the case and

_ the circumstances surrounding same, after the said

Ray Bailey has served for a period not exceeding ten

years, recommend to the Board of nn. or Gover-

nor a pardon or parole.” -

Mr. Leatherwood did not confer with Bailey. The

statement was explained to Bailey by Mr. n. his at-

torney.

The Respondent, Ray S. Bailey, alleged i in his Petition

that the voluntary nature of his guilty plea was 8 destroyed

22222ͤͤͤ „

duced to *

Don ei

Ranzr, RESPONDENT, 9. MacDovaAts: ot ol, sParrriowms 8

The’ Solicitor testified that he initiated the negatiattons

to get the Respondent to plead guilty (Tr., 87) because John

| „Corea, a principal witness for the State, refused to testify

unless the President of the U. S. gave him a full pardon

for the offense he was then serving in the Federal Peniten-

tiary: (Tr., 86). Another witness, John Singleton, stated

that Ray Bailey” shot him. (Tr., 15, 16, 85). The Solicitor

thought, however, that without Corea’s testimony the pos-

sibility of getting a conviction was extremely remote. (Tr.,

93). He further testified that the facts of the deficiency of

the State’s dae were not known to Respondent’s attorney,

(Tr., 86, 100), during the negotiations for the plea, or to

the Court at the time the plea was entered. (Tr:, 89). The

conviction of Corea was public record. The counsel for

Bailey “* * * was satisfied that the State had enough evi-

. dence to Warrant the Judge in submitting the case to the

jury. (Tr., 23.)

By Order of July 29, 1964, Judge Orimball set aside

— te guilty plea and sentence on the grounds that it was in-

duced by the promise with respect to the sentence, and re-

manded the case to Greenville County for a new trial. The

Respondent was released from custody after posting bond.

- The State appealed to the Supreme Court of South Caro-

lina. .

The Supreme Court of South Carolina reversed and

remanded, discharging the writ of habeas corpus on No-

vember 10, 1965, 247.S. C. 1, 145 S. E. (2d) 425 (1965). Pe-

tition for rehearing was filed on November 18, 1965, to

focus the attention of the Court on the question of nondis-

closure by the prosecutor, but rehearing was denied with⸗

. out opinion on December 14, 1965. .

' Thereafter a Petition for a writ of certiorari to the

South Carolina Supreme Court was filed on April 14, 1966,

in the United States Supreme Court, where Certiorari was

denied, 384 U. S. 962, 86 S. Ct. 1589.

* „*

* „

6 Bana, Resronpsant, v. MacDoucaLL et al., Purrriom as 2

The Respondent filed a Petition for a writ of habeas

corpus in the United States District Court for South Caro-

lina, which was denied by order of Judge Robert W.

_ Hemphill on 23 August, 1967. (Appendix, E, pp. 70-78).

The Fourth Cireuit reversed and remanded to the

District Court, by opinion dated 28 February, 1968. 392 F.

(2d) 155 (1968). (Appendix F., pp. 79-87.) aie

! ‘ Pursuant to Rule 19 of the Rules of the Fourth Circuit,

for the State of South — petitioned for

- @ re-hearing en bane-from a decision of the Court handed

| down ox 25 February; 1968, in the matter. This case was not

previously argued before,the full Court sitting en banc.

It was submitted that in this case the opinion and rule

of law stated therein, was of such gravity, that it was be-

lieved by Counsel for the Petitioners that the full Court sitt-

ing en banc should re-hear the case and then render an

opinion reflective of the entire Court. = .

The Fourth Circuit denied the Petition for re-hearing,

by order dated 29 April, 1968. (Appendix G, p. 88.)

REASONS FOR GRANTING THE WRIT

(1) The decision of the United States Court of Appeals

for the Fourth Cireuit in this case is in conflict with de- ‘

cisions by the South Carolina. Supreme Court on the ques- 7

tion.

(2) The decision of the United States Court of re

for the Fourth Cirenit in this case is in conflict with de-

cisions rendered by the U. S. Supreme Court on this. same

_ :

Question I

‘Wes the guilty pin ef thin Resbondent made celue-.:

tarily with understanding of the nature of the charge?

The Court stated in Berger v. United States, 295 U. S.

78, 88 (1935), that while the United States Attorney

may strike hard blows, he is not at liberty to strike foul

ones. It is as much his duty to refrain from improper

methods calculated to produce a wrongful conviction as

is to use every legitimate means to bring about a just one.“

In the present matter no foul mows were struck and no

wrongful conviction was obtained.

Canon Five of the American Bar Association Cantal

of Professional Ethics states. “The primary duty of a law-

yer engaged in public’ prosecution is not to convict; but to

see that justice is done.” Justice was done in the present

case. There was no suppression of evidence through inti-

; midation of witnesses by the prosecution. © é

In the present matter there was no “deliberate decep-

tion” of the Court, as stated in Mooney. v. Holchan, 204

U. S. 103, 113 (1935). ä

The present matter has no similiarity to the case of

Pyle v. Kansas, 317 U. S. 213 (1942), where “* his im-

prisoninent resulted from perjured testimony, knowingly

used by the State authorities to obtain his conviction, and

from the deliberate suppression by: these same authorities

of evidence favorable to him.” In the present matter there

was no perjured testimony and no evidence was suppressed

favorable or unfavorable to the appellant. 5

> The cases of United States ex rel., Almedia v. Baldi,

195 F. (2d) 815 (3rd Cir. 1952), cert. den., 345 U. S. 904

(1953), and United States ex rel., Thompson v. Dye, 221 F.

(2d) 763 (3rd Cir. 1955), reh. den. May 23, 1955, also in-

s © Bamzy, REsronvanr, o. MaDOdaLL et al, Perrriowmss

volved the “suppression of evidence favorable” to the ac-

cused. The prosecutor failed to disclose. exculpatory evi-

dence in United States ex rel., Montgomery v. » Ragen, 86 F.

Supp. 382 (N. D. III., 1949).

Napue v. IIlnois, 360 U. S. 264 (1959), involved a con- 5

viction obtained through the use of false evidence known to. {

be such by the representatives of the State. In Brad /

v. Maryland, 373 U. S. 83 (1963), the Supreme Court held

that “the arr the prosecution of evidence favor-

able to the ageused upon request violates due process where

_ the evidence is material either. to guilt or to punishment,

irrespeective of/the good or bad faith of the prosecution.” :

In the present matter there was no request for any. evi-

dence and no evidence was suppressed that could have been

used in any trial. Barbee v. Warden, Maryland Penitenti-

ary, 331 F. (2d) 842 (4th Cir. 1964), involved police sup-

pression of material Information. There was no suppres-

sion of any evidence by anyone in the Bailey matter.

Counsel for the Respondent stated in Brief before the

Fourth Circuit, that “rule of fundamental fairness in the

- Barbee case. has been extended to guilty pleas by the case

of Evans v. Kropp, 254 F. Supp. 218 (E. D. Mich. 1966).

The record shows that the State Solicitor and the defense

counsel dealt fairly and correctly with each other. The Re-

_ spondent’s guilty plea was “made voluntarily with the un-

derstanding of the nature of the charge.” Rule 11, Fed. K.

Crim. Pro. was complied with, even though not applicable

to the · State Court proceeding. In the present matter the_

State Solicitor was not in possession of material evidence

_ which was not disclosed to the Court, The defense counsel

knew, or should have known, that a witness was in the

Federal Penitentiary. It was\a matter of conjecture as to

Whether he would be a witness.

| In the present matter. nothing was offensive to the

sense of justice. The conduct of the prosecution in the in-

; — „ MacDovcau, et al., Permmomms 9

stant case was commendable. The Respondent's life was

spared while the objective of a conviction for the State was . |

achieved. The bargaining for a guilty plea with an agree-

ment, which the prosecution knew would be carried out,

was valid. The defense knew the agreement would be car-

-ried out because the entire agreement was set out in writ-

ing. There was to be no reliance on memory. (Tr., 16, 17.)

The record shows that the State Solicitor carried out the

agreement. There was no defect in the case of the state. The

State knew that there” was the possibility that one of the

witnesses might refuse to testify, but the state still had

enough evidence to obtain a conviction. The Respondent

was not denied the protection of competent counsel or an

adequate defense by effective counsel. He was not denied

tme protection of the Court, but instead, was accorded due

process of law. Si

The Respondent was informed of the crime with which

he was charged and was informed of the consequences of

the conviction thereon. He knew that he would receive a

life sentence. ~ : —

Ihe plea of“ guilty in this capital case was accepted

cautiously and not until after the appellant had been fully

advised by the defense counsel of his rights and the oonse-

quences of his plea. The court was satisfied that the appel-

lant acted voluntarily and with full knowledge, apprecia-

tion and understanding of the nature and consequences of ;

the plea, a | 11

Rule 11 of the Federal Rules of. Criminal Procedure

provides that the court may refuse to accept a plea of

guilty, and “shall not accept the plea without first deter.

mining that the plea is made voluntarily with understand-

ing of the nature of the charge.” This rule was complied

with in the present matter. The defense counsel had many

years of legal experience and testified that. there was no

question concerning the voluntariness of the guilty plea .

5 8

10 8 Baier, RESPONDENT, v. MacDouGALL et al., PeriTioNERs

by the appellant. (Tr., pp. 17, 27, 28.) The Respondent made

a valid plea of guilty with — e and arse

of its consequences.

Connsel for Benennen in Brief to Fourth Qircuit,

admitted that . . . in the Federal Cases that there is no

particular form or ritual which must be followed in deter- 1 ö

mining that a guilty plea is made voluntarily. See; United

States y. Rieso, 362 F. (2d) 97 (7th Cir. 1966); Shelton v.

United States, 242 F. (2d) 101 (5th Cir, 1957), rev'd, 356

V. s. 26; United States v. Swaggerty, 218 F. (2d) 875 (7th -

_. Cir. 1955); Harris v. United States, 216 F. (2d) 953 (5th

Cir, 1954); United, States v. Davis, 22 F. (2d) 264 (Th

Cir. 1954).

N The State courts are not oa by the Federal Rules,

‘ but are bound by the requirements of due process. The rec-

ord before this Court shows that the Trial Judge had no

knowledge of the ‘agreement made between ‘the. prosecutor

and the counsel for the accused, who i in turn presented the .

. ‘agreement to the accused. There was n0 necessity for the

court to admonish the accused concerning the consequences

of the plea because the consequences were automatic and ik

were given to the Respondent by his counsel.

| ‘There is not now, nor was there at the time of Respond-

- ent’s trial, any statutory requirement or court rule in South

Carolina requiring the accused to be advised by the court

as to the nature and consequences of his plea, but the S. C.

Courts have always. made u determination e the .

voluntariness of the plea.

Tue voluntary nature of the guilty plea in this case

was shown by the fact and content of the written agi. nent

by the Solicitor and the Chief of Police to recommend pa-

role for appellant within ten years. At' the time this agree-

ment was made a recommendation to parole by a solicitor

to the Governor carried great weight, just as the recom-

7 5 mendation to parole by a an at the arte time to

1 |e

| 1

| ‘Banzy! ResPoNDENT, v..MacDoucats, ot al, Pr un

the S. C. Probation, Parole. and- Pardon Board carries

great weight, However, the appellant knew that .

this recommendation did not mean that the Governot a 3

have to grant the parole or the pardon, but I did state to

him that, ordinarily, the Governor would give great weight

, do the recommendation * * *.”(Tr,17,18) |

Taye Governor of South Carolina had absolute disere-

tion as to the granting of paroles and pardons. When the

_. Respondent was due for consideration under the terms 8

tte agfeement the probation and parole, system for the

State hhd been changed, placing the parole function in the

hands of a Parole Board with discretionary powers. The

record indicates that the Respondent knew that the written

agreement was not a guarantee of freedom within ten years —

or less. He knew that there was a possibility that he might

get a parole. His counsel stated to the Respondent that

jf you were not there and did not participate in the

* shooting, I woul ‘advise you under no circumstances to en-

ter any plea of guilty of any kind“ „ The Respondent

- eonferred with his brother and his counsel and agreed to

plead guilty. (Tr., 16, 17.) c

The convietion and sentence which follow a plea of

guilty are based solely and entirely upon the said plea and

not upon any evidence which may have been improperly |

acquired by the prosecuting authorities. Wallace v. Heine,

351 F. (2d) 39 (9th cir., 1965); quoting Thomas v. U. S.,

290 F. (2d) 696-697, (9th Cir. 1961). Also see Fernandes

v. Klinger, 346 F. (2d) 210 (9th Cir., 1965) and U. 8. v.

Marin, 265 F. (2d) 241 (8rd Cir., 1959). A plea of guilty

differs in purpose and effect from a mere admission or an

extra. judicial confession, it is itself a conviction. Like a

verdict of à jury it is conclusive, more is not required; ;

the court has nothing to do but give judgment and antence. .

Out of just consideration for persons accused of crime

éourts are careful that a plea at guilty shall not be ac-

12 nn

with full understanding of the consequences. Machilbroda

v. U. S., 368 U. S. 487, 493 (1962) quoting Kirchevat v.

U. S., 274 U. S. 220, 228 (1927).

Te is clear, therefore, Ant the question bette the Gurt E

is the voluntariness of the plea which involves: 2 :

(1) Whether the plea was freely and voluntarily made

Nn + ino

ö (2) Whether the actions of appellant’s defense counsel

o in the original criminal prosecution. arabunted to inom

petent counsel or, in effect, no counsel.

Under certain circumstances the extra judicial acts of

police authorities may affect the voluntariness of a plea.

See Ellis v. Boles, 251 F. Supp. 1021 (D. C. N. D., W. Va.

1966). It is clear; however, that violation of constitutional

rights in obtaining a confession does not per se preclude

a voluntary plea of guilty U. S. v. Marin, supra.

In the instant case the evidence shows that the extra

judicial proceedings did not destroy the voluntary plea by

the Respondent. To the contrary, his attorney testified that

his investigation of the case revealed that here was evi- .

+ “dence to the extent of two eye witnessses who would identify

the appellant as the murderer. There is no evidence that

the Respondent ever advised his attorney of any defense he

had to the charge against him, other than the defense of

Im this habeas corpus proceeding the burden was on

the Respondent to prove the allegations of his petition by

a preponderance of the evidence. Vahater v. Boles, advance

sheet No. 10726, dated May 24, 1967 (4th Cir.): The only 7

evidence that the Respondent was coerced or misled, to é

plead guilty is his own testimony, which testimony is

sharply contradicted by other witnesses. The record clearly

ne, eue e MacDovcats. ot ol, Parrots 13

- Respondent and that the Respondent understood the conse- .

quences, The plea was freely and voluntarily made, with

full knowledge of its consequence.

The general standard to be applied in determining

whether representation by counsel is so inadequate as to

amount to a denial of rep tation by counsel is whether

the assistance is effectiv as distinguished from bad faith,

sham, there pretense; of lack of opportunity for conference

and preparation. Nutt v. U. 8., 335 F. (2d) 817 (10th Cir.,

1964) and cases cited therein:

The evidence clearly shows defense counsel was re-

tained by the Respondent. By the Respondent’s own testi-

mony there was never any question but that counsel would

represent him in a murder trial, if he desired a trial. The

Respondent made the decision to plead guilty and his at-

—

torney agreed to represent him and negotiate a plea. The

record indicates the Respondent’s attorney had many con-

ferences with him and that his attorney was thoroughly fa-

miliar with the case. His attorney testified that he reviewed

the Respondent’s rights with him and explained the conse-

quences of the various alternatives the Respondent might

choose. The fact that the attorney may have advised the

: Respondent that if he stood trial he stood in jeopardy of a

death sentence does not itself support a claim of coercion. |

It is a lawyer’s duty to advice his client of risks involved.

Brown v. Smyth, 271 F. (2d) 227 (4th Cir., 1959).

. The’ Respondent was properly, effectively and ably.

represénted by counsel, there is no question but that the

' * Respondent understood the consequenee of his plea, and the

plea was not a result of coercion. Since the Court had found

chat the plea was voluntary, and in the absence of any show-

~ ing of ‘prejudice to the Respondent, the Respondent had

~ waived all but Lemar nas defects. er. u. Boles,

supra.

14 Baur, Resronvent, v. MacDovcatt et al, Perrrionms

The Respondent through counsel, asked to be allowed

to enter a plea of guilty to the offense of murder with

recommendation to the mercy of the Court. The plea was

agreed to by the State, and by the Court, and a consent

verdict was returned by the jury and was published by the

Clerk of Court. The decision to enter a plea of guilty was

made by the Respondent.

The Respondent alleged that he did not know what sen-

tence he was going to get. However, he sat with his attorney

as the Court instructed thé jury foreman to sign the con-

sent verdict. He heard the judge state that the sentence

was a mandatory life sentence, No statements, or objec-

tions, were given to the Gourt concerning the proceedings.

No evidence was presented at the habeas corpus hearing

city tq enter the guilty plea.

N In some jurisdictions, the rule that a trial judge must

ascertain whether or not an accused understands the con-

sequences of his plea of guilty before the court accepts it,

bas been established by statute and in other jurisdictions

the rule has been established by case law. It must be pointed

out that the existence of this duty upon a trial judge is

not, Hy any means, universally accepted. Most of the trial

jadges in this State conduct a rather thorough inquiry into

whether or not the accused understands the effect of his

_plea of guilty. See generally: Carroll v. MacDougall, 248

8. C. N n

248 S. C. 415, S. K. (2d) (184

r —

the morey of the court carries a mandatory penalty of im-

_ prisonment during the whole lifetime of the prisoner. 1962

S. C. Code of Laws, Section 16-52, Section 17-553.4; State

v. Mousan, 231 S. C. 655, 92 S. E. (2d) 672 (1957); State

v. Chasteen, 228 S. C. 88, 88 S. E. (2d) 880 (1955).

Baizy, RESPONDENT, v. MacDouGALL et al., PrTrIπ s 15

The requirements of due process are fulfilled if the 8

accused is clearly informed of the offense charged and

understandingly pleads guilty. 16 A. C. J. S. 643, Consti-

tutional Law, Section 588; 14 Am. Jur. 951, Criminal Law,

Section 270.

A-plea of guilty must be voluntarily made, with full

understanding of its consequences. The plea must be re-

ceived with caution and the court must be satisfied that

the defendant was of sound mind and did not plead guilty

because of overpersuasion or delusive hope of pardon.

However,.the mere belief of the defendant that he would re-

ceive a lighter punishment is not sufficient ground for

setting aside u plea of guilty. The plea cannot be entered

until defendant has been advised by the court of his rights :

and consequences of the plea. When such a plea is accepted

and entered upon the récords it is a conviction of the highest

order. 4 Wharton’s Criminal E e 1900, pp. 767,

768.

| In applying the general ** that — n

a plea of guilty is represented by counsel the court has a

duty before accepting it, to inform the accused of its con-

sequences or see that he is or was so informed, if it does

not affirmatively appear that he already has knowledge

thereof, the question of when the duty requires the court

either to determine that the information was given, to di-

rect that it shall be given, or to give it to the defendant di-

rectly, depends upon the state of the record and the facts

appearing at the time the plea is offered. In a number of

cases the view has been taken that the accused, represented

by counsel, was on the record sufficiently informed of the

consequences of his plea of guilty that ne further admoni-

tion by the court as to zuch consequences was necessary, or,

at least, that the failure to give such further admonition *

was not prejudicial error. * A. L. R (2d) 549, 557.

16 Bamay, Resrowpant, „. MacDovaats ¢t ol, Parmriowms

The case of McGrady v. ). Cunningham (CA 4 Va.), 298

F. (2d) 600, 96 A. L. R. (2d) 1286, cert. den. 369 U. S. 855,

8 Led (2d). 14, 82 S. Ct. 944, was a habeas corpus proceed-.

ing in which it appeared that the petitioner had been pros- .

ecuted for murder in the Virginia Circuit Court under an

indictment in the Virginia statutory form, which did not

_ distinguish between murder in the first degree and murder

in the second degree. Under the erreneous advice of his

_ counsel that upon a plea of guilty he would be sentenced

for murder in the second degree to from 5 to 20 years,

the petitioner pleaded guilty, with the understanding that

he was thereby pleading guilty to murder in the first degree.

No inquiry was made of the accused by the court as to

whether he understood the nature of his plea of guilty —

and the punishment that might be meted out to him as a

result thereof; and no inquiry was made of the accused

personally, before imposition of a sentence of life imprison-

ment for murder in the first degree, as to whether he had

anything to say as to why he should not be sentenced. On

an appeal by the petitioner, a decision of the United States

District Court dismissing the petition without a plenary

hearing, was affirmed by the Fourth Circuit, which held that

the sentence was not invalidated by the absence of the 8 3

quiries.

In Bailey v. MacDougall, 247 S. C. 1, 145 8. E. em

425, 428, the S. C. Supreme Court said:

“A plea of guilty i is a confession of guilt made in a

formal manner and is equivalent to and as binding as

a conviction after a trial on the merits. It has the same —

effect in law as a verdict of guilty.and authorizes the

imposition of the punishmeént prescribed by law. A

plea of guilty must be freely and understandingly

made. A plea of guilty, if induced by promises which

deprive it of the character of a voluntary act; ig. void

and should be set aside.“

Bary, barem v Macho ot al, Temme 1

In Tillman v. State, 244 8. C. 259, 136 8. E. (2d) 300

(1964), the S. C. Supreme Court held that the possibility

of a. . death sentence following a trial before a jury”

was ak coercion and would not render the guilty plea i —

voluntary. In that case the defendant's attorney had bar.

gained successfully with the prosecution for a guilty pies.

on a lesser charge than murder. 2

A plea of guilty should not be accepted from one who

does not know, or who, at the time of arraignment, asserts

that he does not: know, whether or not he has committed

the crime charged; and such a plea is insufficient on Which

to base a judgment of conviction. 22 C. J. S. 1176, Crim.

Law, Sec. 423 (1).

A plea of guilty obtained by illegal coercion will not

support a conviction based on it. Thus, to authorize. the

acceptance and entry of a plea of guilty, and ‘judgment and

sentence thereon, the plea must be entirely voluntary; and

it must not be induced by fear, by misrepresentation, by

persuasion, or by the holding out of false hopes, nor be

made through inadvertence or by ignorance. After proper

advice by counsel, the plea of guilty must be freely and

understandingly made by one eornpetent ta,know the con-

sequences thereof. However, where a party appearing for

trial in a felony case plainly appears to the court to be of.

sound mind,. the court need not hear proof of his mental

capacity before receiving his plea of guilty, unless and

until the issue has been raised by evidence or reliable infor-

mation has come to the court. 22 C. J. S. 1176-1180, Crim.

Law, Sec. 423(2). -

Before accepting and entering a plea of aie the

court should and under rules or statutes so providing, such

as Rule 11 of the Federal Rules of Criminal Procedure, 18

U. S. C. A., must, satisfy itself of the voluntary character

of the plea. Even in a state in which the trial court ordi-

narily has no duty, statutory or by oe to ascertain.

/ |

. era: wk

‘Sbefore accepting a plea of guilty whether it is being given

without mistake or misapprehension, where the case in-

volves more than a simple issue and the response to the

indictment is in such terms as. ought to make the court

aware that accused is not responding without qualification,

the court should clear up the matter with such further in-

. quiry into the factual situation, in open court, as will dis-

close that accused does in real substance know what he is

doing. Whenever, after such investigation as may be

_ deemed necessary, the court shall have reason to doubt the

truth of a plea of guilty, it is the duty of the court to

direct a plea of not guilty, and order trial on the issues. |

In determining whether the plea was voluntarily made, the 8

plea must be viewed as of the time it was submitted to the ö N

court. Where accused is represented by counsel at the time

„be offers a plea of guilty, the court may rely on the repre.

sentations of counsel that the plea is voluntary, and the

’ _. eourt is not required to conduct an interrogation of accused

personally. 22 C. J. S. 1181-1182, Crim. Law, Sec. 423 (3).

In general, where the court is required by rule or stat-

ute to satisfy itself that the plea of guilty was freely and

understandingly made, the form and manner of the exam-

ination which will so satisfy the court are a matter within

the discretion of the court, to be exercised in the manner

best suited to the parties and the offense; and it is not

essential that the court’s examination or investigation be

made a matter of record. 22 C. J. S. 1183, Crim. Law, See.

488(3). ES

wWuile the rule is not universal, particularly with re-

spect-to misdemeanor cases, it is a frequently recognized

right of accused and duty of the court where accused pleads

guilty, sometimes by virtue of express statutory provision,

that the court should advise and inform accused, or see

that he is advised and informed, ag to his rights, the nature

of his act, and its conse~uences,\and should see that a

; K 1

. f 28 ‘ 5

7 1 2 „ * 9 *

‘i 2 * 8

5 Banzr, RESPONDENT, v. -MacDouaaut et al., W 19

reasonable time has been allowed before having the plea

entered so that accused could, if he desired, retract it and

plead not guilty. However, the court does not have to force

counsel on accused pleading guilty, nor does. the court.

9 forcibly have to prevent him from pleading guilty. The rule

applies especially where accused appears without counsel,

and even though he has waived counsel; but it has been

held that where accused is represented by counsel, the

court is not under duty to inform accused of the effect of

his entry of a plea. 22 C. J. S. 1183-1185, Crim. ‘Law, See.

423(4).

Under some stetutre, the courts not required to in-

form accused precisely what fine or jail sentence could or

would be pronounced, or is provided by statute, for the

particular offense with which he is charged; and it has

been held to be erroneous for a judge to tell accused What

his punishment would be before he entered a plea of guilty.

_ Certainly it is not a prerequisite to a court’s acceptance of

a plea of guilty that it make known to accused every con-

_ eeivable defense that may be available or determine from

accused that he has knowledge thereof. The court is not

required to advise accused of the effect of a plea of not

guilty where accused started to plead guilty but changed

the plea to not guilty. 22 C. J. S. 1186, Crim. Law, Seo.

423(4).

A plea of guilty is a formal criminal pleading and

leaves the court nothing to do but to give judgment and

sentence. Provided the court has jurisdiction of the crime

charged, a plea of-guilty is a confession of guilt, made in

a formal manner, and under such circumstances a ‘plea of

guilty is binding on aecused. It is an admission, or con- ;

clusive admission, or proof, of guilt. Except that it may be

withdrawn and anothér plea substituted for it, a plea of

_ guilty is equivalent to, and as binding as, a conviction

ater «Solel a. ie eee: Det eee

20 ‘Banat, eee, - bee e., ane

‘ as a verdict of guilty, and suthorizes the imposition of the 7

punishment prescribed by law. Accordingly, it leaves no

issue ee the jury. 22-C. J. 8. 1188-1190, Crim. Law, See.

424(1).

ae le of guilty is an inplied admission at aceused's

sanity, and the court’s action in accepting the plea i is neces-

sarily an affirmation of its belief in defendant’s sanity. 22

C. J. S. 1197-1198, Crim. Law, See, 24 (5).

The elde of due process of law are fulfilled

if the accused is clearly informed. of the offense charged

and understandingly pleads guilty. 16A C. J. S., Consti-

tutional Law, 588, page 643.

It has been held that there has not bein a deprivation

of due process of law even where there was a failure of

the prosecutor to make a promised recommendation of a

light sentence to the court and where there was an imposi-

tion of a heavy sentence by the court. State v. Miller, 84A

(2d) 459, 16 N. J. Super. 251; Cert. den. 73 S. Ct. 379, 342 U.

S. 934, 96 L. Ed. 695, 164 C. J. S, Constitutional Law,

See. 588 „Page 643. 3

The acceptance of a plea of guilty may constitute a

- denial of due process, however, where such plea was in-

. duced by coercion, or where it was made under the influence

of drugs (Lobaugh v. State, 82 N. E. (2d) 247, 266 Ind.

548), or where it was made without the advice of counsel,

or was made under circumstances which rendered its ac-

eeptanée fundamentally unfair or shocking to a sense of

justice. 16 C. J. S., Constitutional Law, Sec. 588, page ma

644.

Habeas bur is, 10 the proper remedy to secure

an accused’s release from the penitentiary after sentence

on a plea of guilty, on grounds that the.plea was induced |

by fear and that the defendant did not have a jury trial.

Ex Parte Darling, 235 N. W. 582, 120 Neb. 829, 09 C. 1. 8.

eee .. a Scar

« 2 “ :

: 5 : a > » :

„

2 5

4 * :

—

, eee «, MacDovaas ot of, a 21

Wben a plea of guilty is obtained by promises by the d

police this is not grounds for a Writ of Habeas Corpus |

especially where the defendant knew that the judge alone

did the sentencing. Commonwealth v. Ashe, 15A (2d) 409,

141 P. Super. 408. 0 C. J. S., Habeas Corpus, Section 13,

page 442,

Where the accused vas induced to plead guilty: by

representations of the assistant county attorneys that he

was eligible for a suspended. sentence, whereas i in fact the

accused on account of a prior conviction was not eligible

for a suspended sentence, the judgment révoking suspen-

sion of sentence on that account was void and accused was

imprisoned without “due’ ‘process of law”. Ex Parte Farvar,

126 P. (2d) 547, 74 Cr. 900. 38 d. J. f, Habeas

Corpus, Section 13, page. 442.

Evidently, if if a conviction is obtained on a ‘plea of

guilty made in reliance on an agreement that is repudiated ;

or dishonored, the effect may be one of such unfairness

as to constitute a denial of due process and result in a

void judgment which may well be deemed subject to attack

by coram nobis at any time. People v. Sullivan, 276 App.

Div. 1987, 96 N. V. S. (2d) 266 (1950), 62 A. L. R. (2d)

467. See also 16A C. J. S. 645, Constitutional Law, Sec. 589.

Where a prisoner’s guilty plea was allegedly induced

by a promise of a lighter sentence by a representation of

the district attorney’ s office, and the prisoner could not

have known that the promise would not be performed until

the sentence was pronounced, it was held that a motion

for a writ of error coram nobis was proper. People *

Painter, 29 Cal. Reptr. 121.

Where there is an agreement dee the prosecuting

attorney promises the performance of certain acts in con-

sideration of the filing of a plea of guilty it has been that

these promises are not binding on the court and the plea

is — treated as an — * of guilty. Am.

— i . +

qG*

— ©. a

22 _ Bama, maenner » MacDovaaut et al, Pm

Ge 1914 A, 451; 113 A. L. R. 814; 14 Am: Jur., Criminal

Law, Section 273, page 9535.

5 A plea bargain is an agreement by. one seid of a

crime to plead guilty to a certain crime in return for a

promise from the prosecuting attorney, the court, or botn

that the accused will receive a moderate sentence or im-

munity from prosecution for other offenses. Plea bargains

may involve matters solely within the discretion of the

trial judge, or of the prosecuting attorney, or within the

. diseretion of both. Thus, the question arises, who are the

necessary parties to the agreement. Since sentencing is a

function of the trial judge, plea bargains involving prom-

ises of less severe sentences necessarily require the court’s

consent to be enforceablé. However, in many plea bargains

the accused pleads guilty to one offense and receives a

promise of immunity from prosecution for other offenses

_ for which he is or may be charged. 23 La. L. Rev. 783.

? Plea bargains have been recognized as a useful and

necessary part of the executive and judicial criminal proc-

ess which furnishes a means of disposing of numerous cases

wich would otherwise clog the court dockets. When prop-

erly used it has. been Ipoked upon favorably by lawyers, -

prosecuting attorneys, courts and defendants alike. 50 Tale

L. J. 107, 23 La. L. Rev. 783, 785. ols 25

Enforcement of a plea bargain involving a plea of

guilty to an offense in return for a promise from the pros-

eouting attorney which is within his power to fulfill seems

justifiable even though the plea bargain lacks the court

consent. Not only is the prosecuting attorney a public repre-

sentative whose. promise is a pledge of the public faith

which should be duly kept, but it seems a defendant who

pleads guilty to an offense in consideration of a plea bar-

gain would be giving up the same substantial right, the

right to stand trial, whether the court consented to the

Se ee ;

‘

Banzy, wcnn, ». MacDoucaLt, at al., "PETITIONERS: 23

The guilty plea has become an. important f tor in

the administration of American criminal law. Guilty pleas

are prevalent i in the state courts, and in the federal ve

pleas -of nolo contendere and guilty pleas represent an

average of 79 percent of the disposition of all criminal; ie

-. fendants for the fiscal years 1956 through 1962. The com-

monplace practice of plea bargaining, compromise by

“prosecuting attorneys with criminal defendants or their

counsel to obtain guilty pleas, is in part responsible for

the high incidence of such pleas. There is a broad range’

of plea arrangements currently used by prosecutors. The

tree most common are the sentence recommen tion, the

-plea to a lesser included offense, and she dismissal of

charges in an indictment, information or other charging

paper. Many other types of agreements are made with de-

fendants to induce a plea. These include promises not to

prosecute codefendants, promises to arrange for the de-

fendant or a codefendant to be incarceratéd in a particular

prison, promises to have the defendant or a codefendant _ .

tried in the juvenile court, recommendations ‘for. present-

ence. investigations, recommendations: for concurrent sen-

tences, and agreements not to oppose probation. Promises

of immunity by thé prosecutor can also be used ‘to induce.

_ guilty pleas, 112 Univ. of Pa. L. R. 865 and 866.

In New Vork some of the most common reasons sub-

mitted by the district attorneys have been difficulty in prov-

ing the indictment, mitigation of harsh penalties,’ unreli-

ability of state’s witnesses, conflicting evidence, reluctant

complainant, lack of adequate ‘identification and lack of

. corroboration. A significant reason which may be apparent

from the records i is probably the time and cost savings in-.

volved in disposing of cases of guilty pleas.. 112 Univ. of -

Pa. L. R. 865, 9. 8

There has been a growing recognition by courts of

9 the existence. and — of plea * *

—

um Baar, Mee, , MacDovaats, ot ol, Temme

a still indefinite the practice has received official

sanction. A federal court said that guilty pleas

are commonplace occurrences. In many courts, particu-

larly state courts, a defendant’s lawyer and the prosecutor

may. bargain not only on the offense, but also on the length

of the sentence which the prosecutor will. recommend. Bar-

ber v. Gladden, 220 F. Supp. 308 (D. Gog, 1968), 11) Uae.

of Pa. L. R. 865, 870.

In North Carolina the federal district court specifically

assumed the “constitutional validity of the time-honored *

compromise plea.” Anderson v. V. C., 221 F. Supp. 930, '

934 (W. D. N. C. 1963), 112 Univ. of Pa. L. R. 865, 871.

Legal safeguards have developed for defendants who

plead guilty, whether or not the pleas are the result of

bargaining. The general standard for accepting a guilty

plea has been articulated in Rule 11 of the Federal Rules

of Criminal Procedure: “A defendant may plead ,.. guilty —

or, with the consent of the court, nolo contendere. The

court may refuse to accept a plea of guilty, and shall not

accept the plea without first determining that the plea is

made voluntarily with understanding of the nature of the

charge.“ (Emphasis added.) 112 Univ. of Pa: L. R. 865, 871.

-A guilty plea is tantamount to a conviction; once the

plea is validly accepted by the court, the defendant has

waived all the constitutional,- statutory and judicially

created safeguards afforded him for a trial determination

of guilt, the imposition of sentence is the only judicial ac-

tion remaining. 112 Univ. of Pa. L. R. 865, 871. Machibroda

v. U. S., 368 U. S. 487 (1962), Kercheval v. U. S., 274 U. S. ;

220, 223 (1927). 1

The Fifth Cireuit held that a “plea of guilty entered

by one fully aware of the direct consequences, including

the actual value of any commitments made to him by the

court, prosecutor or his own counsel, must stand unless

induced by threats (or promises to discontinue improper

2 * i

* .

Baur, RESPONDENT, v. MacDouGALL et al., PEeririowsas 2

harrassment), misrepresentation (including unfulfilled or

unfulfillable promises), or perhaps by promises that are

by their nature improper as having no proper relationship

to the prosecutor’s business (e. g., bribes). Shelton v. D. 8.

246 F. (2d) 571, 572 (Fifth Cireuit 1957) (en banc major-

ity). 112 Univ. of Pa. L. R. 865, 873. |

It is difficult to determine where the concept of volun-

tariness ends and understanding begins. The Ninth Circuit

has recently stated that for purposes of Rule 11 the trial

court must satisfy itself that the defendant understood “the

meaning of the charge, and what acts amount to being

guilty of the charge, and the. consequences of pleading

guilty thereto.” Kadwell v. U. 8., 315 F. (2d) 667, 669

(Ninth Cireuit, 1963). 112 Univ. of Pa. L. R. ee 874.

The Ninth Circuit has suggested that 4 r’s

- failure to comply with his promise would violate due proc-

ess. Dillon v. U. G., 307 F. (2d) 445 (Ninth Cirouit, 1962).

112 Univ. of Pa. L. R. 865, 877.

5 The guilty plea involves a waiver of all defenses and

evidentiary questions which do not relate to the jurisdiction

of the court. U. f. ex. rel: Staplers v. Pate, 222 F. Supp.

998, 1002-03 (N. D. III. 1963). If a guilty plea is contem-

plated as a possibility, defense counsel may decide to dis-

cuss a plea arrangement with the prosecutor. Williams v.

Kaiser, 323 U. S. 471, 475-476 (1945). 112 Univ. of Pa.

L. R. 865, 888. :

A defendant’s unfulfilled expectation of leniency, even

it inspired by counsel, is not normally a ground for relief.

People v. Schmidt, 10 III. (2d) 221, 139 N. E. (2d) 726

(1957). 112 Univ. of Pa. L. R. 865, 890.

Solicitor Leatherwood did not confer with Bajley but

in all instances negotiated with Mr. Wyche, Bailey’s at-

torney. Neither the Solicitor nor Mr. Wyche knew of any

attempts by anyone to coerce Bailey into agreeing to the

* guilty*plea. | ) f |

26 e

The Respondent knew the value of the commitment

statement made by the Solicitor, and explained to him by

his retained counsel. The agreement and guilty plea were

not induced by threats, misrepresentation or improper .

promises. The sole promise of the Solicitor, to recommend

parole or pardon after a period of ten years confinement,

was fulfitied by the Solicitor. (F. 17.)

In Cortez v. United States, 337 F. (2d) 669 (1964),

the district court held a hearing on a petition and found

that the petitioner had failed to- sustain his ose Oo

showing that his plea of guilty was not voluntary.

United States Court of Appeals, Ninth Circuit, upheld this

finding. The petitioner contended that a “deal” had been

arranged between the United States Attorney and his at-

torney whereby he would plead guilty and certain charges

would, be dropped against him and his wife. The Court

took “. .. judicial notice of the fact that the vast majority

of those who are indicted for federal crimes plead guilty

and “In a sense, it can be said that most guilty pleas

aze the result of a ‘bargain’, with the prosecutor. But this,

standing alone, does not vitiate such pleas.” The Court also

stated that the lawyer is bound to advire his client that

. neither the lawyer nor the prosecutor’ nor anyone

else can bargain for the Court.” The important thing is

that a guilty defendant “. . . understands his situation, his

rights, and the consequences of the plea, and is neither de-

ceived nor coerced.” See also: Thomas v. Warden, Md.

Penitentiary, 236 F. Supp. 499 (1964).

„ In Tillman v, The State, et al, 244 S. C. 259, 136 S. E. |

(2d) 300°(1964), the Court held that the possibility of. a2

a“... death sentence following a trial before a jury” was

not coercion and would not render the guilty plea involun-

tary. In that case the defendant’s attorney had bargained

lesser charge than murder.

‘ ; N . | g

Bary, REsPonvENT, v. MacDoucats et al, Perro 27

Judge Grimball’s finding that Bailey’s plea of guilty

was not voluntarily made was clearly e us and was

correctly set aside by the S. C.- Supreme Court. If Bailey’s

rationale had Ween adopted then all guilty pleas would be

vitiated if they were entered as a result of a bargain with

the prosecution. The circumstances of this case show that

the inducement for Bailey’s guilty plea was not one which

overcame his ability to make a voluntary decision. The evi-

dence shows that the trial court heard the matter at some

length, found that Bailey was in fact guilty, that at the

time of his plea he was fully and accurately advised, and

that his plea was voluntary. Bailey’s guilty plea was entered

in open court freely, voluntarily and with full advice of

counsel and the Court. Bailey’s plea of guilty was not a

compromise with justice. Through his attorney he was act-

ing knowingly and intelligently, and the ultimate decision

to plead guilty was neither the produet of deception nor

coercion. — vs

The South Carolina Supreme Court reversed the order

of Judge Grimball and remanded/@ischarging the Writ of

Habeas Corpus. Bailey b. MacDougall, 247 S. C. 1, 145 8.

E. (2d) 425 (1965). The opinion is set out in the Appendix.

(Appendix A, pp. 53-64.) The main portion of the opinion

is set out in the order of Judge Hemphill (Appendix E,,

pp. 70-78) to wit: :

“The petition of the respondent is specific in that

it is alleged that the guilty plea was induced by the

written promise and agreement of the Solicitor and the

Chief of Police of the City of Greenville, that if he

ould: plead guilty he would only serve ten years and

ssibly less. There is no proof of this fact in the rec-

ord. The promise and agreement, a copy of which said

agreement was attached to the respondent’s petition,

is to the contrary. The written promise made by the

Solicitor and the Chief of Police is definite, clear, ex-

plicit, and unambiguous. The only promise made in

- irs

28 ni, RasronDeyt, , Ma¢Dovaats ot ol, Pre

such letter was that if the respondent vitae a plea

of guilty to murder with a recommendation to mercy

that these officers would ‘after the said Ray Bailey has

served for a period of not.exceeding ten years, recom-

mend to the Board of Pardons or Governor a pardon

or parole.’ It is stipulated that the Solicitor never con-

ferred with the respondent and that the written pro-

ployed counsel.

“A study of the entire record in this case leads us

to the conclusion that the respondent has failed to

prove by a preponderance of the evidence that he was

misled, deceived or over-reached in any way. There is

nothing to show that the plea was induced by coercion,

false promises or misrepresentations. The respond-

ent’s plea of guilty was freely, voluntarily and under-

standingly made after full consultation with his

brother and his employed counsel. The record is en-

tirely free of any evidence that the plea of guilty en-

tered by the respondent was induced or in any way

influenced by any improper act or advice of his counsel

. but was entered after full disclosure to him by his

counsel of its nature and possible consequences. There

is a total absence of any proof that any one connected

with the State, or even the respondent’s counsel, did

or said anything which destroyed the voluntary charac-

ter of his plea of guilty.

— “It is our conclusion, under all thé facts and cir-

cumstances as revealed by the record in this case, that

the respondent was not deprived of any rights guaran-

teed to him under the Constitution of the United States

or of. this State. We further conclude that the finding

by the lower Court that respondent’s plea of guilty was

not voluntarily made is erroneous and should be set

aside. 145 8. E. (2d) 432.”

The order of Judge Hemphill is set out in the Appen-

dix. (Appendix E, pp. 70-78.) He held that:

he United States District Court has the discre-

tionary power to hold an evidentiary hearing on an ap-

4 * 1

Ww 0

Baty, RESPONDENT, „„ MacDovaau. et ” Perrrionmrs - 29

plication for Jalal corpus challenging the validity of

a state criminal conviction. Fay v. 12 372 U. 8. 391,

83 8. Ann, .

a 1

„In- the instant case a plénary hearing is 1 re-

quired. Justice would not be served by ordering a full

hearing or by awarding any or all‘df the relief sought

by the petitioner. The State Court records show that

. the petitioner was not denied due process of law. The

record was fully developed and explored at state level.

31 “The facts of the record are not in dispute and

Show no deprivation of constitutional rights. Applying

each of the criteria to the instant case, the petitioner

is not entitled to a hearing. The State Courts have

given opinions, conclusions of law, and finding of fact,

and have applied the proper standard of federal law

setting forth the constitutional rights of the petitioner.. —

The records show application by the State Courts of 4

the correct constitutional standards. The record shows

that the petitioner has received full and fair hearings

on the testimony concerning all the allegations raised

in the present petition.”

“The record shows the evidence taken at the origi-

nal trial, the findings of fact and the legal standards

applied. The petitioner has been afforded the one full

hearing to which he is entitled and the matter is con-

cluded as to the taking of evidence at the discretion of

the United States Distrjct Court. .

“The petition is discharged.” ä

Question two (2) was the opinion of the Fourth Circuit

in this matter without basis in law or fact. g

The facts in this case were set out in the Distriet Court

opinion. See Bailey v. MacDougall, ... F. Supp. N

(Appendix E, pp. 70-78.)

The Fourth Circuit held that “After serving ti 14

years Bailey escaped to North Carolina and. surrendered.

Later he escaped to Montana, where he was captured.” To

* e ° *

0 e * .

4 . . 2 ,

* *

% Bamzy, Responvant, . MacDoucatt et al, Prrrrm s

this should be added the fact that as soon as he heard of

the decision of the South Carolina Supreme Court he

jumped bond. He was eaptured in Arizona and was returned

to South Carolina. The federal habeas corpus proceedings

began upon his return to South Carolina. 2

8 The Fourth Cireuit held that We hold that Bailey’ .

arraignment was defective and the record fails to establish

he understood the consequences of his plea.” Upon his

arrangement Bailey pleaded not guilty. Bailey withdrew

his original plea and pleaded guilty with recommendation

to mercy. Bailey claimed that the promise rendered his plea

. involuntary and that his arraignment was constitutionally

defective. There was never any question coneerning the

legality of the arraignment. The sole question related to

the voluntariness of the guilty plea.

The Fourth Circuit held that “In South. Carolina, a

defendant can plead guilty to murder only before a jury,

which, pursuant to the plea, returns a verdict of “guilty of

murder with the recommendation to the mercy of the court.“

This was not a correct statement of the law of South

Carolina. Under Section 17-553.4, 1962 S. C. Code of Laws,

a defendant can now plead guilty without the formality of

a jury verdict.

| The plea of guilty to murder with. seveunnendation to

the mercy of the court carries a mandatory penalty of im-

prisonment during the whole lifetime of the oe. 1962

, §. C. Code of Laws, Section 16-52. ; .

All of the evidence that can be marshalled is 8

in the record. The material facts are uncontradicted. , 4

The evidence clearly shows defense counsel was re-

tained by the Respondent. By the Respondent's own testi-

many there was never any question but that counsel would

represent him in a murder trial, if he desired a trial. The

Respondent made the decision to plead guilty and his

attorney agreed to represent him and negotiate a plea. The

S..

Baur, RESPONDENT, v. MacDovaAls ot at, Permownns 31

rd indicates the en attorney had many

conferences with him and that his attorney was thoroughly

familiar with the case. His attorney: testified that he re-

viewed the Respondent’s rights with him and explained the

consequences of the variqus alternatives the Respondent

might choose.

In the instant case the evidence shows a voluntary plea

by the Respondent. His attorney testified that his investi-,.

gation of the case revealed that there was evidencé to the ee

extent of two eye witnesses who would identify the Re-

spondent as the murderer. There is no evidence that ‘the

Respondent ever advised his atterney of any defense he had

to the charge against him, other than the defense of alibi.

The Respondent knew the value of the eémmitment

statement made by the Soileitor, and explained to him by

his retained counsel. The agreement and guilty plea were

not induced by threats, misrepresentation or improper

promises. The sole promise of the Solicitor, to recommend

parole or pardon after a period of ten years’ sericea

was fulfilled by the Solicitor.

Bailey clearly understood that it was his ‘iia and

his decision alone, to decide whether he wished.to go to trial

or whether he wished to plead guilty. After he decided to

plead guilty his lawyer was to make certain that there was

reduced to writing a statement by the solicitor and the chief

of police that they would recommend a pardon or parole

after Bailey had served not more than ten years. |

The defense attorney advised Bailey that if he did not

participate in the shooting he should not plead guilty. The

attorney explained that the plea arrangement meant a fe

sentence would be imposed, and that it did not mean the

Governor would have to grant parole or pardon. He added

that ordinarily the Governor would give great weight to

the recommendation of the solicitor and the chief of police.

9 agreed to plead guilty.

5 32 Banur, RESTONDENT,». MacDoucaL et al., PETITIONERS |

Bailey testifled that he was not in Greenville at the time

the police officer was killed, and that at first he refused to

plead guilty. He agreed to change his plea because he was

in faet guilty and he was certain any agreement the solicitor

made would be carried out.

His attorney, out of an abundance of epution, ieguined :

the solicitor and chief of police to put their promise in writ-

ing. They signed ‘this statement: ;

This will confirm’ our conversation that in the |

event that Ray Bailey enters a plea of guilty with rec- -

ommendation to mercy in the case now pending against

him. in the General Sessions Court for Greenville

County that I will, knowing the facts of the case and

the circumstances surrounding same, after the said

Ray Bailey has served for a period not exceeding ten

years, recommend to the Board of Pardons or Gover- : |

nor a pardon or parole.” 1" 7

The Governor of South Carolina had absolute discre-

tion as to the granting of paroles and pardons. When the

' Respondent was due for consideration under the terms of |

the agreement the probation and par le system for the.

State had been changed, placing the Dale function in the

hands of a Parole Board with discretionary powers. The

record indicates that the Respondent knew that the written

agreement was not a guarantee of freedom within ten years

or less. He knew that there was a possibility that he might

get a parole. His counsel stated to: the Respondent that

„ * if you were not there and did not participate in

the shooting I would advise you under no circumstances to See

enter any plea of guilty of any kind * .* . The Re- 227

spondent conferred with his brother and his counsel ang :

agreed to plead guilty. (Tr., 16, 17. ) 7 f

The voluntary nature of the guilty plea in this case was

shown by the fact and content of the written agreement by

the Solicitor and the Chief of Police to recommend sins

& 2

Bana, RESFONDENT, MacDovcats ot ol, Tre 33

for Respondent within ten years. At the time this agree-

ment waß made a. recommendation to parole by a solicitor to

the Governor carried great weight, just as the recommenda-

tion to parole by a Solicitor at the present time to the S.C.

Probation, Parole and Pardon Board carries great weight.

However, the Respondent knew that this recom- .

mendation did not mean that the Governor. would have

grant the parole or the pardon, but. I did state to him that,

ordinarily, the Governor would give great weight, to vl .

recommendation , (Tr., 17, 18.)

SZSiolicitor Leather wood did not confer with Bailey nel

in all instances negotiated with Mr. Wyche, Bailey’s At-

_ torney. Neither the Solicitor nor Mr. Wyche knew of any

attempts by anyone to coerce Bailey into agreeing | to the -

guilty plea. m

‘There. was no necessity for any inquiry to be ‘made to

determine whether Bailey’s plea was voluntary or whether

he understood the charges against him and the consequences

of his plea. The attorneys of South Carolina are officers *

the Court. They do not offer a plea of guilty on behalf of a

defendant unless the defendant has requested him to do so.

. The Respondent, through counsél, asked to be allowed

to enter a plea of guilty to the offense of murder with rec-

ommendation to the mercy of the Court. The plea was

agreed to by the State, and by the Court, and a consent ver-

dict was returned by the jury and was published by the

Clerk of Court. The decision to n a plea of guilty was

made by the Respondent.

Ihe plea of guilty in this 0 case was sse ted

‘cautiously and not until after the Respondent had been fully

advised by the defense counsel of his rights and the conse-

‘quences of his plea. The court was satisfied that the Re-

spondent acted voluntarily and with full knowledge, appre-

ciation and. understanding of the nature and consequences :

of the plea.

384 Banz, RESPONDENT, v. MacDovGaLs et al. PETITIONERS ;

No particular form or ritual is required. It clearly ap-

peared that the Respondent understood the consequences of

his plea. The evidence discloses, however, that his attorney

had made inquiry to determine Bailey's understanding of

the consequences of his plea. The judge asked him no ques-

tions because the appellant, through counsel, asked to plead

_ (guilty. Bailey’s counsel explained all aspects of the matter

to Bailey. There was never any question in the mind of

Bailey's counsel but that Bailey knew exactly what he

Wanted to do. Bailey had a college education, was from a

respected North Carolina family and had had experience

with Court procedure. Bailey had won a stay of extradition

from the Courts of North Carolina. Upon hearing that the

State of South Carolina had won a favorable extradition

opinion from the U. S. Supreme Court he ‘fled to Georgia,

was eqptened, and was finally sent to South Carolina for

trial.

Bailey 3 he was 0 due process of law be-

cause the court did not advise him of the consequénces of *

his plea. Bailey fully understood the consequences of his

plea, and knew the direct consequences—the length of the

sentence to be served. Bailey also understood the conse-

‘ quences of the plea agreement.

The Fourth Circuit cited the fact that the “Tnstitute

olf Judicial: Administration, ABA, Standards Relating to

Pleas of Guilty, § 1.5, p. 29 (tentative draft 1967) suggests

the plea agreement should be disclosed to the court, and

that the court shot

dations of the ‘prosecutor. are not binding on the court”

The solicitor, Bailey’s counsel and Bailey clearly under-

stood that the guilty plea would bind the court to a sentence

of life, The statutory law. of S. C., then as now, does not

grant any diseretion to the trial judge. Bailey: l knew the

exact sentence he would rece receive.

vise the defendant that recommen-

BAILEY, RESPONDENT, 2. MacDoucaLt et al., Perrriowers | 35

The Respondent alleged that he did not know what sen-

tence he was going to get. However, he sat with his attor- —

ney as the Court instructed the jury foreman to sign the

consent verdict. He heard the judge state that the sentence

was a mandatory life sentence. No statements, or objections, -

were given to the Court. concerning the proceedings. No

evidence was. presented at the ‘habeas corpus hearing to N

show that the Respondent did not have the mental e

to enter the guilty plea. 5

The State courts are not bound by the Federal. a .

but are bound by the requirements of due process. The rec-

ord before this Court shows that the Trial Judge had no

knowledge of the agreement: made between the prosecutor

and the counsel for the accused, who in turn presented the

agreemen to the accused. There was no necessity for the

court to admonish the accused concerning the con ences.

of the pleas because the consequences were — and

were given to the Respondent by his counsel. os

The Respondent was informed of the crime with which

he was charged and was informed of the consequences of

the conviction thereon. He knew that he ‘would receive’ a life

sentence. | ——

The Respondent. was amie, effectively ‘and? “aly

represented by counsel, there is no question of his plea, and

_ the plèea was not a result of coercion. . |

Judge Grimball's finding that Bailey’s ‘plea of guilty

was not voluntarily made was clearly erroneous and was

correctly set aside by the S. C. Supreme Court. If Baileys .

rationale had been adopted then all guilty pleas would be

vitiated if they were entered as a result of a bargain with

te prosecution. The circumstances of this case show that

the ‘inducement for Bailey’s guilty plea was not one which

overcome his ability to make n voluntary decision. The evi-

dence shows that the trial court heard the matter at some

length, found that e was in sete ; guilty, that oe time

\ a

. ) , . : *

2 Banzy, Rasromoent, ». MacDovca et al, rammen,

! "ofthis plea he was fully and accurately advised, and that his

plea was voluntary. Bailey’s guilty plea was entered in

open court freely, voluntarily and with full advice of coun. f

‘ gel and the Court. Bailey’s plea of guilty was not a compro-

mise with justice. Through his attorney he was acting kndw- |

ingly and intelligently, and the ultimate decision to plead U

guilty was neither the product of deception nor coercion. A

The Supreme Court of South Carolina concluded this

judgment was erroneous. The State Supreme Court empha-

sizegrthat the promise was only to recommend parole or

pardon and that it had béen kept, that the written statement

was unambiguous, and that Bailey’s attorney had explained

to him that the Governor might not follow the recommenda-

tion. It concluded that the evidence did not disclose that the

plea was induced by coercion, false promises, or misrepre-

sentation, and that Bailey’s plea was voluntary.

The South Carolina Supreme Court reversed the order

of Judge Grimball and remanded, discharging the Writ of

Habeas Corpus. Bailey u. MacDougall, 247 S. C. 1, 145 S. E. |

(2d) 425 (1965). The opinion is set out in the Appendix. ö |

pp. nw to wit:

itl

Banur, Resronpent, v. MacDovaa. et al., Perrrionms 87

served for a period of not exceeding ten years, recom-

mend to the Board of Pardons or Governor a pardon

or parole.’ It is stipulated that the Solicitor never con-

ferred with the respondent and that the written prom-

-ise and agreement was explained to him by his em-

ployed counsel. —~ Be ed

“A study of the entire record in this case leads us

to the conclusion that the respondent has failed to

prove by a preponderance of the evidence that he was

misled, déceived or over-reached in any wa?. There is

nothing to ghow that the plea was induced by coercion,

false promises or misrepresentations. The respond-

ent’s plea of guilty was freely, voluntarily and under-

standingly made after full consultation with his

brother and his employed counsel. The record is en-

tirely free of any evidence that the plea of guilty

entered by the respondent was indyced or in any way

influenced by any improper act or advice of his counsel

but was entered after full disclosure to him by. his

counsel of its nature and possible consequences. There

is a total absence of any proof that any one connected

with the State, or even the respondent’s own counsel,

did or said anything which destroyed the voluntary

character of his plea of guilty. ;

It is our conclusion, under all the facts and cir-

cumstances as revealed by the record in this case, that

the respondent was not deprived of any rights guaran-

teed to him under the Constitution of the United States

or of this State. We further conclude that the finding

by the lower Court that respondent’s plea of guilty

was not voluntarily made is erroneous and should be

set aside, 145 S. E. (2d) 432.”

Bailey then applied to the United States District Court

for a writ of habeas corpus, which was denied upon the basis

of the state records without a plenary hearing.

The order of Judge Hemphill is set out in the Appendix.

(Appendix E, pp. 70-78.) He held that:

“The United States District Court has the discre-

tionary power to hold an evidentiary hearing on an

„ Resronpent, v. MacDoucats et al., PETITIONERS ©

E ee d ee i

F ,, a jt

E. fine 1115 1 . ny 125 ayia

; + 11 5 111 i ule

„

5 475 181322

. We 35 7 %

Bastar, RESPONDENT, „ MacDOUGALL: et al, PErrTionms 39°

he pled not guilty. Bailey later made a request, through

counsel, that he be allowed to plead guilty. Bailey stood by

his counsel when the request was placed before the court.

Rule 11 of the Federah Rules of Criminal Procedure

provides that. the court may refuse to accept a plea of

guilty, and “shall not accept the plea without first deter-

mining that the pleas is made voluntarily with understand-

ing of the nature of the charge.” This rule was complied

with in the present matter. The defense counsel had many

-years of legal. experience and testified that there was no

question concerning the voluntariness of the guilty plea by

the appellant. (Tr., pp. 17, 27, 28.) The Respondent made a

valid plea of guilty with the knowledge and appreciation of

its consequences. In this habeas corpus proceeding the bur-

den was on the Respondent to prove the allegations of his

petition by a preponderance of the evidence. The only

evidence that the Respondent was coerced or misled, to

plead guilty is his own testimony, which testimony is sharply

contradicted by other witnesses. The record clearly in-

dicates that the trial judge accepted the guilty plea of the

Respondent and that the Respondent understood the con-

sequences. The plea was freely and voluntarily * with

full knowledge of its consequence.

Bailey did not produce one scintilla of evidence to back

up his mere allegations. His case rested on his subjective

testimony alone. The only reasonable inference to be drawn

from all the facts and circumstances is that Bailey totally

failed to prove his allegation that the guilty plea was invol-

untary. The evidence does establish that Bailey has not

carried his burden of proving that the guilty:plea was not

voluntary. The dispute about the guilty plea, which must

be adjudicated thirty years after the plea, demonstrates the

fundamental unfairness and the of due process in at-

tempting to place upon the state the burden of showing by

a preponderance of the evidence the terms of an admittedly

6 e

unambiguous agreement. The State is placed in the position

of having to attempt to prove what might have been in the

mind of a defendant when he stood before the court; with

competent legal counsel, and requests the court to allow him

to enter a guilty plea. It is not only.ridiculous, but prepos-

terous, to try to prove a subjective thought

& The Fourth Circuit held that “Plea bargaining that

induces es an, innocent person to plead guilty cannot be sanc-

, tioned. Negotiation must be limited to the quantum of

‘punishment for an admigtedly guilty defendant.” This

rule of law, and holding by the Court, proves the case for

the Petitioner. The State of South Carolina did not induce

Bailey to plead. His counsel told him not to plead unless, he

was guilty. The negotiation was limited solely to the quan-

tum of punishment because the statutory law of South Car-

olina set the punishment at life, with no court discretion.

Bailey raises several questions about plea bargaining. —

He does not urge the practice in itself is unconstitutional. —

He does claim the promise rendered his plea involuntary.

In Kercheval v. United States, 274 U. S. 220, 223

(1927 ), the Court said:

| “A plea of guilty differs in purpose and effect

from a mere admission or an extra judicial confession ;

it is itself a conviction. Like a verdict of a jury, it is

‘eonclusive. More is not required; the court has noth-

ing to do but give judgment and sentence. Out of just

consideration for persons accused of crime, courts are

careful that a plea of guilty shall not be accepted unless

made voluntarily after proper advice and with full

understanding of the consequences.”

The facts of this case show clearly that Bailey entered

a plea of guilty, after proper advice and with full under-

standing of the consequences.

The Fourth Circuit stated that “Courts have not con-

sidered it necessary to inform the defendant of possible

“

nner. RESPONDENT, . MacDovaaus et al, Pane 41

collateral consequences when. such consequences result

from subsequent criminal éonvictions of the defendant or

do not relate directly to the charge to which the defendant

pleads guilty.” The written agreement was a collateral con-

sequence that did not relate to the charge to which he pled

guilty. a

The Fourth Circuit stated that “The question remains:

Did the promise, even if fulfilled, induce the plea and de-

prive it of the character of a voluntary act?” The decision

to plead guilty was made first by Bailey. His counsel told

him that he should not plead-guilty unless he was guilty.

After Bailey made the decision to plead guilty his counsel -

then had ‘the written agreement preserved. The written

agreement related. to a future event, the promise to

recommend parole after ten years.

The requirements of due process are fulfilled if the

accused is clearly informed of the offense charged and un-

derstandingly pleads guilty 16 A. C. J. S. 643, Constitu-

tional Law, Section 588; 14 Am. Jur. 951, Criminal Law,

Section, 270.

There was no ambiguity in the guilty plea and there

was no ambiguity in the agreement to recommend parole i in

the future. Bailey’s counsel ascertained that Bailey under-

stood the consequences of his plea. Bailey in fact under-

stood exactly what he was doing.

Bailey had the burden of proving his allegations that

the guilty plea was involuntary.

The Fourth Cireuit states that “Fed. R. Crim., P. 11,

as amended in 1966, requires the court to determine this

even though the defendant is represented by counsel. Many

States also impose such a duty. Others hold the require-

ment is satisfied where counsel sufficiently informs the ac-

cused.” The State of South Carolina fully met the rule, as

approved by this Court above, because Bailey’s counsel had

2 Bamzy, ResPonpant, „. MAcDoucaut et al, Perrrionmns

completely informed the accused of the consequences of a

guilty plea :

In some e tens the rule that a trial judge must

ascertain whether or not an accused understands the con-

* sequences of his plea of guilty before the court accepts it,

has been established by statute and in other jurisdictions .

the rule has been established by case ‘law. It must be

pointed out that the existence of this duty upon a trial }

- Judge is not, by any means, universally accepted. Most of /

the trial judges in this State conduct a rather thorough -

inquiry into whether or not the accused understands the

effect of his plea of guilty. See generally: Carroll v. Mac-

Dougall, 248 S. C. 141, 149 S. E. (2d) 343 (1966). Thompson

v. State, 248 S. C. 415, 151. S. E. (2d) 221 (1966).

There is not now, nor was there at the time of Re-

pondent's trial, any statutory requirement or court rule

in South Carolina requiring the accused to be advised by

the court as to the nature and consequences of his plea, but

„the S. C. Courts have always made a determination con-

cerning the voluntariness of the plea.

In Thompson v. State, 248 S. C. 475, 151 S. E. (2d)

221, the S. C. Supreme Court held, at pp. 482, 483: “In

some jurisdictions, the rule that a trial judge must as-

certain whether or not an aceused understands the con-

sequences of his plea of guilty before the court accepts it,

has been established by decisions of the court. In Common-

wealth v. Battis, 1 Mass. 95, it was held that before the ac- oe

ceptance of a plea of guilty the accused must be admon-

ished as to the consequences of such a plea and must be

given a reasonable time to consider what the court has said

to him regarding the plea. Since the Battis case many

courts have declared that a plea of guilty should not be

accepted until after careful inquiry by the court into the

. aecused’s under standing of the consequences of his plea.

The existence of this duty upon a trial judge is not the

—

Banrr, RESPONDENT, v. MacDOUdALL et al., Perrrioners 43

universal rule. In the last cited case the court affirmed. a

- ruling denying relief sought by a habeas corpus petition,

without a plenary hearing, upon the ground that the judge-

ment on a plea of guilty under the indictment which speci-

fied neither the degree of murder charged nor the punish-

ment authorized, and a sentence to life imprisonment, the

state’s penalty for first degree murder, were valid, al-

though the trial court failed to inquire of the deféndant

whether he understood the nature of the plea and the

- punishment that might be inflicted as a result, where he

was represented by counsel of his own choice.“

In an annotation at 97 A. L. R. (24), page 552, we find

the rule stated as follows:

“The fundamental right of an accused to be in-

formed of the nature of the crime with which he is

charged has usually been regarded as including the

right to be informed of the consequences of a convic-

tion thereof, and accordingly the courts appear to be

in agreement that even in the absence of a statute or

court rule directly imposing a duty to advise or ad-

monish the accused as to the consequences of a plea of

ee guilty, the court is required to determine, before re-

- ceiving a plea of guilty, that the accused does under-

stand the consequences of making such a plea, and to

inform him of such consequences if he is not already

advised thereof. (Emphasis added.)

The fact that the accused had legal counsel may

be a significant factor in determining if he was in fact

informed of the consequences of his plea. Here, the

appellant had counsel of his own choice and the trial

judge has found, and there is no appeal from this find-

ing of fact, that the appellant was informed of the con-

sequences of his plea of guilty to murder with a recom-

mendation to the mercy of the court. It is our view

where an accused represented by counsel was suffici-

ently informed of the consequences of his plea of guilty -

that no further admonition by the court as to such con-

4 .

sequences was necessary, or, at least, that the failure

to give such admonition was not prejudicial error.”

The record of. this case clearly shows no violation of

ei process in any areas of the proceedings. The accused

was represented by competent counsel. The Respondent re-

ceived due process and the fundamental fairness required |

in the administration of criminal justice. Defense counsel

could and did adequately and effectively represent the Re-

-. spondent. There was no deficiency in the State's case. The

State Solicitor knew that a witness was reluctant to testify,

however, the State could and would have gone to trial wah

out that witness if the necessity had arisen.

The State Solicitor fulfilled his duty to. justice and the :

State when he bargained for the guilty plea. He was: re-

luctant to go to * nes he could have obtained a convie- *

tion.

The Court fulfilled its judicial duty in accepting a plea

of guilty to the capital offense by satisfying itself that the

plea was made freely and voluntarily with full knowledge

of the consequences. The plea of not guilty at the arraign-

ment was routine. The court satisfied itself, through the So-

licitor, defense counsel and jury verdict that the guilty plea

was voluntary. Had the Court questioned the Respondent it

would have discovered that the accused honestly. believed

the written agreement with the prosecutor was not a guar-

antee of freedom within ten years or less, that he was not

improperly influenced in his plea by the very fact of this

agreement, and that there was only the possibility of a

parole after the service of ten years.

The Respondent received a criminal trial with the full

observance of all the due process requirements of such a

trial. He is not entitled to an absolute release from citstody

after over thirty years of confinement, on a life sentence,

and is not entitled to receive a new trial. The plea bargain-

ot:

— 2 —ę—

— —

Barmy, RESPONDENT, e. MacDouGALL et al, PI 7

ing process was valid and legal. The acceptance of the vol- .

untary guilty plea: by the trial court accorded the Respond-

ent all of the constitutional requirements of due process,

In order to fulfill the requirements of due process of

law and accord an accused every fairness which is properly

his upon trial, the accused must be informed by the Court

or his counsel of the consequences .of his plea of guilty

either before such a plea is accepted by the — cqurt ¢ _ Fee

before sentence is rendered. f

The Respondent was accorded due process of a at the

time he offered his plea of guilty, without any inquiry by

the trial judge, because he had been advised of the conse-

quences of his plea by his retained counsel. He knew that

the sentence was set. at life, er any discretion on the

part of the Court.

The Respondent was 8 effectively and ably

represented by counsel, there is no question but that the

Respondent understood the consequence of his plea, andthe

- plea was not a result of coercion: The Court had found that

the plea was voluntary. __

| The guilty plea of the Respondent was free and volun-

_ tary and should not be set aside. If Bailey’s rationale is

adopted then all guilty pleas would be vitiated if. they were

entered as a result of a ‘bargain with the prosecution. The

circumstances of this case show that Bailey’ 8 guilty plea

Was a voluntary c decision. The evidence shows that the trial

court heard the matter at some length, found that Bailey

was in fact guilty, that at the time of his plea he was fully

accurately advised, and that his plea was voluntary. Bail-

ey’s guilty plea was entered in open court freely, volun-

tarily and with full advice of counsel and the Court.

Bailey’s plea of guilty was not a compromise with justice.

Through his attorney he was acting knowingly and in-

46 BAILEY, marc © MacDoveaLs of a, Pau 3

telligently, and the ultimate decision to plead guilty was

neither the product of deception nor coercion. The opinion

of the Fourth Cireuit should be reversed and the order of

the Distriet Court, and the e ol the 8. C. Supreme

Wees should be affirmed.

"SUMMARY - 5

The record of this case clearly shows no violation of

due process iffany areas of the proceedings. The accused

was represented by counsel. The Respondent received due

process and the fundamental fairness required in the ad-

ministration of criminal justice. The State Solicitor did

not conceal any evidence, favorable or unfavorable to the

" Respondent. Defense counsel could and did adequately and

effectively represent the Respondent. There was no de-

| ficiency i in the State’s case. Defense ‘counsel knew ‘the true

: situation. The State Solicitor knew that a witness was re-

luctant to testify, however, the State could and would have

gone to trial without that witness if the ä =

arisen

The State Solicitor fulfilled his duty to justice wid

the State when he bargained for the guilty plea. H® was

reluctant to go to trial but he could have obtained a

‘conviction. The State Solicitor has never, and is not now,

required to inform the Court of the quality of the evidence

available to him, provided the evidence is valid and legal.

The Court fulfilled its judicial duty in accepting a plea

of guilty to the capital offense by satisfying itself that the

plea was made freely and voluntarily with full kRowledge

of the consequences. The plea of not guilty at the arraign-

<2 ‘ment was routine. The court satisfied itself, through the

Solicitor, defense counsel and jury verdict that the guilty

_ plea was voluntary. The Court has never required, and.

does ‘not now require, the prosecution to present the

due, benen v MacDoveats, ct al, Pee 47

State’s evidence for judicial consideration before accept-

ing the plea. Had the Court questioned the Respondent it

would have discovered that the Respondent honestly: be-

lieved the written agreement with the prosecutor was not

a guarantee of freedom within ten years or less, that he

was not improperly influenced in his. plea. by the very fact

of this agreement and that there was only the beni 3

of a parole after the service of ten years. : :

; ~The Respondent received a criminal trial with the fall

fe obs ervance of all the due process requirements of such a

or his. counsel of the consequences of his plea of guilty

trial. He is not entitled to an absolute release from custody

after over thirty years of confinement, on. a life sentence,

and is not entitled to receive a new trial.

‘CONCLUSION

There was no State suppression of evidence Sree a.

criminal defendant and his counsel. The plea bargaining 3

process was valid and legal. The acceptance of the volun- 3

tary guilty plea by the trial court accorded the Respondent

all of the constitutional requirements of due process.

In order to fulfill the requirements of due process of

law and accord an accused every fairness which is properly

his upon trial, the accused must be informed by the Court

either before such a plea is accepted by the trial court or

before sentence is rendered.

The Respondent was accorded Hie process s of law at

the time he offered his plea of guilty, without any: inquiry

by the trial judge, because he had been advised of the con-

sequences of his plea by his retained counsel. He knew that

the sentence was set at life, without any een on the

part of the Court.

The Respondent was properly, effectively. and ably

| represented by counsel, there i is no question but ‘that the

3 den, meren „ MacDoveats t al, Pam.

Respondent understood the consequence of his plea, and

the plea was not a result of coercion. Since the Court had

found that the plea was voluntary, and in the absence of

any showing of prejudice to the Respondent; the Respond-

ent had waived all but jurisdictional defect&s

ue guilty plea of the Respondent was free and volun-

tary and should not be set aside. If Bailey’s rationale is

adopted then all guilty pleas would be vitiated if they were

entered as a result of & bargain with the prosecution. The

circumstances of this case show that the inducement for

Bailey’s guilty plea was not oné which overcame his ability

to make a voluntary decision. The evidence shows that the

: trial court heard the matter at some fength, found that Se

Bailey was in fact gnilty, that at the time of his plea he

was fully and accurately advised, and that his. plea was

voluntary. Bailey’s guilty plea was entered in open court

, voluntarily and with full advice of counsel and the

burt. Bailey’s plea of guilty was not a compromise with

justice. Through his attorney he was acting knowingly °

and intelligently,. and ‘the ultimate decision to plead guilty

was neither the product of deception nor coercion. The

opinion of the Fourth Circuit should be reversed and the

order of the Distriet Court, and the 3 of the S. C.

Supreme Court, should be affirmed.

Therefore, it is respectfully submitted that this Court

should exercise its jurisdiction in granting the writ of cer-

. tiorari to review the decision of the United States. Court

of Appeals for the Fourth Circuit in this case so that the

conflict in the decision. rendered by the Fourth Circuit

Court of Appeals and the decisions rendered by the Su-

preme Court of the State of South Carolina, and the con-

flict with*the decisions from the various Circuit Courts of

aes Pa . 2 5 a | |

dur, eme, », MacDovoAts,e él, Tanne be 25

Appeal and the U. S Supreme Court on the ea at

sented here, may be settled. Ate:

6 °

1 .

Respeetifully submitted,

DANIEL R. McLEOD,

Attorney General, post's „

Columbia, S. C., tee

EDWARD B. LATIMER,

Assistant Attorney General,

Columbia, S. C.,

Counsel for Petitioners. .

| —

* *

—

66 *

INDEX TO — ae! ‘

dees 3 f Paon ö

te Opinion, Supreme ort of South Carolina . 53

B. Petition for Rehearin gg.. . „ ©. ;

c. Order Denying Rehearing ....... et eee 68 :

2 D. Order, Supreme Court of the United States, Certi- f ä '

| : . è AAA %⅛˖Ü0¹³; é * 69

E. Opinion, United States Distriet Court of South

Carolin . .. N . 2 . 70 |

F. Opinion, U. S. Court of Appeals, Fourth Circuit ... 79

d. Order, U. S. Court of Appeals, Fourth e . 8S

(52)

525655 Oo iol

THE STATE OF SOUTH CAROLINA

IN THE SUPREME COURT

_ RAY S. BAILEY@Rzsponvenr,

„ Versus

: aos Ee :

on Appeal from Richland County

Jonx Gnntnalz, Juen

„ 8

Opinion No. 180

t Filed November 10, 1965

4 195 . Rkvnns ED | 4

Attorney General Daniel R. McLeod and Assistant Attor-

ney General Edward B. Latimer, both of Columbia;

and Solicitor B. O. Thomason, Jr., of Greenville, for

+ > &ppellant. ue gs ae ER

Mrs. Betty McBride Sloan, of Columbia, for respondent.

‘Moss, A. J.: This record shows that on May 1, 1932,

A. B. Hunt, a police officer of the City of d

— Carolina, was shot and killed on a well lighted street in

ELLIS MacDOUGALL, Dmecror or THe DEPaRTMENt or

_ Corrections ron THe State or Sourn Carotina, APPELLANT —

said city while he was attempting to prevent a robbery.

Thereafter, on May 5, 1932, a warrant was issued. by a

Magistrate of Greenville County charging Ray Bailey, the

8 respondent herein, with the murder of said Hunt: The

Governor of South Carolina duly made requisition upon

the Governor of North Carolina and, on May 9, 1932, the

Governor of North Carolina duly: issued a. warrant of ex-

tradition requiring the arrest of Bailey. He Was arrested

on June 7, 1932, and thereafter applied to the Superior

Court of Jackson County, North Carolina, for a Writ: of

Habeas Corpus alleging the illegality of custody in that hg

was charged with the murder of*A. B. Hunt on May 1, 1932,

WAA

54 Baur, W v. MacDoucaLL * al., PETITIONERS

when, at which time he was in the State of North Gene

and was not in the State of South Carolina. A returh tö

the writ was duly made asserting that Bailey was lawfully

ae castody upon the aforesaid warrant. The case came on

to be heard before a Judge of the Superior Court of North

Carolina and, after hearing numerous witnesses and receiv-

ing a number of affidavits, the trial judge foun und that Bailey

was not a fugitive.from justice from the State of South

Carolina and was not present at the time of the eommission

of the alleged crime at Greenville, South Carolina, and di-

rected his release from custody. From the aforesaid judg-

ment, an appeal was taken on behalf of the State of South

Carolina to the Supreme Court of North Carolina and a

writ of certiorari issued to bring up the record. The judg-

ment of the lower Court was affirmed. Ex Parte Bailey, 203

N. C. 362, 166 S. E: 165. *

The State of South Carolina dialed to and was

granted by. the Supreme Court of the United States a writ

of certio review the judgment of the Supreme Court

of North Carolina, which affirmed the judgnfent of the Su-

perior Court of Jackson County, North Carolina. The

United States Supreme Court reversed the judgment of the

‘Supreme Court of North Carolina which had affirmed: the

lower Court, holding' that one whose extradition is sought

cannot be released from custody on habeas corpus unless

his absence from the demanding State, when the alleged

offense was committed, is ‘established beyond reasonable

doubt; and this requirement is not met where there is

merely a conflict of, evidence. The cause was“ remanded to

the Supreme Court of North Carolina for further proceed-

ings. South Carolina v. Bailey, 289 U. S. 412, 53 S. Ct. 667,

771 Ed. 1292.

Thereafter, i in 1935, Bailey was arrested in Gatnewville,

Georgia, and brought to Greenville, South Carolina, for

trial upon an indictment charging him with the murder of

A. B. Hunt; the said indictment ‘having been returned by poe

‘the Grand Jury of Greenville County on August 25, 1932.

The record shows that Bailey employed an outstand-.

} ing, capable and experienced lawyer of the Greenville Bar

to — him. This attorney is of the highest *

and: sill and always. gives a client his complete loyalty a

and serves him in good faith to the best, of his ability.

The case against the respondent was called for trial i in

the General Sessions Court for Greenville County on Jan-

- wany 13, 1936. Upon his arraignment, the respondent en-

tered a plea of not guilty. Thereafter, the Solicitor and the

retained counsel of the respondent entered into negotia-

tions concerning a possikje guilty plea. Pursuant thereto

it was agreed that the respondent would withdraw his plea

of not guilty and enter a plea of guilty of murder with

recommendation to the mercy of the Court. A jury was im-

paneled and the agreement which had been reached was

carried into effect by the verdict of said jury. The respond-

ent was sentenced to imprisonment in the State Peniten-

tiary for the term of his whole 5

It appears from the recortthat d the n e 5 n

concerning a possible guilty plea tha the Boliciter and the

Chief of Police of the City of Greenville signed a state-

ment, dated January 13, 1936, and such was delivered o

counsel for the respondent, reading as follows:

“This will confirm our conversation that in the

event that Ray. Bailey enters a plea of guilty with rec-

ommendation to mercy in the case how pending against

him in the General Sessions Court for Greenville

County, that I will, knowing the facts of the case and

the circumstances ‘surrounding same, after the said

Ray Bailey has served for a period not exceeding ten

Fears, recommend to the Board of Pardons or Gover-

nor a pardon or parole.”

The respondent with the aid of . . other

than his original counsel, on May 4, 1964, petitioned the

Count of Common Pleas for Richland County for a Writ of

Habeas Corpus, alleging that his detention and restraint. -

under the aforesaid sentence was unlawful and in violation

of Kis ‘constitutional rights under both the State, Fed-

eral Constitutions, asserting (a) denial of d ‘process of

law; (b) that his guilty plea was induced by the written

promise and agreement hereinbefore set that if he

would plead guilty he: would only serve ten years and

possibly me — would be aided in . a parole; (e)

56 BAILEy, RESPONDENT, 9. MacDoveaL.-et al, Termen

tliat being only twenty-five years of age, with no previous |

record and no experience with the law, signed the agree-

ment believing and being led to believe that the State was

bound by the aforesaid agreement; and (d) that the volun-

tary nature of his guilty plea was destroyed by the acts

herein recited, thereby depriving. ‘of his rights guar-

-—anteed by Art. I, Sec. 5 and Sec. 18 of the 1895 Constitu-

tion of this State, and of the Fifth and Fourteenth Amend-

ments to the Consti n of ie United States.. The State,

by way of return to petition, alleged that the

respondent was confined in 125 outh Carolina State Peni-

tentiary pursuant to a sentence of life imprisonment it-

posed upon him on January 13, 1936, in the Court of Gen-

eral Sessions for Greenville County; South Carolina, which

followed a plea of guilty to the charge of murder with rec-

ommendation to the mercy of the Court: The other allega-

tions of the petition were denied.

A full hearing on the issue made by the respondent’s

petition. and the return of the State was had before

the Honorable'John Grimball, Resident Judge of the Fifth

Judicial Circuit. Thereafter, by order of July 29, 1964,

Judge Grimball set aside the 5 plea and the sentence

imposed pursuant thereto on the grounds that the respond-

ent's guilty: plea was induced by the agreement heretofore

set out, that he understood that he would only serve ten

. years and possibly less, that the Solicitor would aid in his

‘parole, that he was led to believe that the State was bound

by the Solicitor’s actions, and that these acts-destroyed aa

voluntary nature of the guilty plea. The trial Judge

further held that the respondent was not entitled to his

absolute release and remanded this case to the General

Sessions Court for a new trial. He permitted the respond-

ent to be released from custody provided he posted a bond

in the amount of Ten Thousand Dollars, to be approved

5 by the Clerk of the Court of Greenville County. The State

has appealed from the aforesaid order.

_ The issue here is whether the agreement by the Solici-

tor and the Chief of Police to recommend to the Board of

Pardons or Governor a pardon or parole after the re-

tien pee

ee APPENDIX * EL ",

spondent had served for a . of not saciid ten

“years destroyed the voluntary nature of his guilty plea. —

The person seeking relief by a Writ of Habeas Corpus

has the burden of sustaining the allegations of his petition

by a preponderance of the evidence. Shelton v. State, 239

S8. C. 535, 123. S. E. (2d) 867; Moore v. State, 241 S. C. 279,

128 8. E. (2d) 109. i Fe

The respondent testified that he was ass guilty. of the

erime charged ‘against him in the indictment and that he

wasn't in Greenville, South Carolina, at the time the alleged:

crime was committed. The question of the guilt or inno-

ty: 5 of the respondent is not an issue in a habeas corpus

; g. Medlock v. Spearmam, 185 S. C. 296, 194 S. E.

213 Wyatt v. State, 243 S. C. 201, 133 S. E. (2d) 120, and

Tillman v. State, 244 S. C. 259, 136 S. E. (2d) 300. Likewise,

habeas corpus is not the proper proceeding to try the ques-

tion of alibi. 39 C. J. S., Habeas Corpus, Sec. 22, page 473.

"A plea of guilty is a confession of guilt’ made ‘in a

formal manner and is equivalent to and as binding as a con-

viction after a trial on the merits. It has the same effect in

law as.a verdict of guilty and authorizes the imposition of

the punishment preseribed by law. A plea of guilty must be

freely and understandingly made, A plea of guilty, if in-

duced by promises which deprive it of the character of a

voluntary act, is void and should be set aside.

We come now to consider whether the respondent vol-

untarily and understandingly entered a plea of guilty to

murder with a recommendation to the mercy. of the Court

or whether his plea was induced by promises which de-

stroyed the voluntary character of such. N

It is admitted that the- respondent never had any con-

versation with the Solicitor or any law enforcement officer

concerning the entry of his plea. According to the record

before us, the only persons who discussed this matter with

the respondent were his brother, C. M. Bailey, and his

employe$ “attorney. This attorney was called by the re-

e e as a witness. He testified that he was employed

by C. M. Bailey, a brother, to represent the respondent. .

This attorney testified that in the preparation of the de-

N fense of the a he reviewed all of the cireum-

case successfully. The

* a 5 &

88 Bana, RESPONDENT, e ‘MacDovoats, ot at, PEnrvionsns :

stances in the case as best he mnie oe and realized

that under the facts it e very difficult to defend the

rd is not, entirely clear as to

whether counsel for the respondent or the: Solicitor initi-

- ated negotiations looking toward the taking of a plea. He )

says that he endeavored to procure from the Solicitor and -

the Chief of Police an agreement to accept a plea of guilty

to a charge of manslaughter rather than murder, in which

effort he was unsuccessful. He said the Solicitor ‘finally

agreed that if the respondent-would enter a plea of guilty

to murder with a recommendation to mercy that he and the

Chief of Police would recommend a pardon or parole after

the respondent had served. ten’ 9 85 This attdeney. then

testified as follows: 3 5 es

“After they agreed that they would mabe that rece-

ommendation, I talked. to Mr. Bailey’s brother, and I

went down to the jail and talked to Mr. Bailey and his

brother together, and I told them just exactly what

the proposition was and what the cireumstances were,

and we discussed the case as a lawyer does with his

client. Mr. Bailey had never admitted, and has not- to

this day, to me admitted directly that he was there .

or that he killed ‘the officer. But I remember stating to

Mr. Bailey and his brother the proposition that was

to be considered, and I said ‘Mr. Bailey, if you were

not there and did not participate. in that shooting, I |

would advise you under, no circumstanees to enter any

plea of guilty of any kind? —I said, ‘You are the only

person who knows whether you were there or not, and

I said, ‘You and your rother can discuss this matter

and come to à conclusion about it. If you were there

and participated in it, you can consider whether or not

von would agree to this plea.’.”

We quote further from this attorney’s testimony:

4% © Of course, we discussed the evidence that

was against him, and at any rate, I told him to consider

this matter, and J also told Mr. Bailey and his brother

that this recommendation did not mean that the Gov-

ernor would have to grant the parole or the pardon,

but I did state to him that, e the Governor

would give great weight to the recommendation of the

-» |. prosecuting officer and to the Chief of Police in this

ease. So, after discussing it with them, I left and told

them to talk about it and let me know the next day

their conclusion. So I went back down to the jail, ac.

- cording. to my recollection, and Mr. Bailey and his

brother, Mr. C. M. Bailey—I think that was his name— .

said they thought they would agree to enter the plea._

Out of an abundance of precaution, I went back to the

- . Solicitor, Your Honor, and the Chief of Police, and

; ‘told them that they would have to put that agreement

in writing; that it was a very serious matter; and

that, if they would write me a letter stating that they

hia would récommend a parole or pardon of Mr. Bailey

| ae after he had served a term of ten years or before—I 1

forget just how it was, but you have the letter before

you—that he would enter the plea. So the plea was

entered under those circumstances. The letter was

eae signed and I took it down to Mr. Bailey: and let him

_ £* -. yead it, or read it to him. At least, I showed them the

ee letter and had the agreement confirmed in that way.”

Il.,nuis attorney was further asked by- the present attor- i

ney for the respondent whether or not he felt that “this 1

agreement itself was tantamount to the promise that this

man would serve only ten years.” The answer to this ques- .

tion was: J ca apt a j oe

) | “Well, no, ma' am, I couldn't answer that affirma- .

, tively, because I told Mr. Bailey at the time that this

| , letter did not mean that the Governor would have to

grant the parole or the pardon, but I did tell him that

the recommendation of those two officers, ordinarily, —

would have great weight with the Governor or anyone

Le wWaho passed upon that question.” = .

- This witness was asked on cross examination as to the

legality of the agreement made by the Solicitor and the

Chief of Police. His answer wass | tas

2 * the legality of this agreement is not in que- ,

tion. The agreement was that these two ‘officers would ss

recommend a parole or a pardon for this boy after 4

service of ten years, and I don’t know what you mean

‘

2 ——— —

60 Bate, RESPONDENT, v. MacDOUGALL ot ol, Purmowmns 4

by ‘legality’, but that was an agreement between the

two officers and the prisoner that they would do that. .

Now, they carried that out. They recommended that

be be paroled or pardoned. They carried out the 4

agreement. Now, as to the legality of it, I don’t under-

stand what you mean.“ |

We quote further from the testimony of this witness: . ? 9

“Q. Well, to clarify that, there was actually no

. @oercion exerted on the part of the Solicitor against

- Ray Bailey, was there? 4 *

K. Not a bit that I know of. en

2. And any recommendations or conversations

that were had concerning this agreement were made by

you Mr. Bailey, were they.not?

A. That’s right.

. The conversations were between Pau and Ray’

Bailey and his brother, C. M. Bailey?

“A. That’s my recollectiom

to this plea of guilty to murder with recommendation J

to the mercy of the Court, was Ray Bailey’s decision

and Ray Bailey's alone, was it not?

“A, Yes, sir. He made the decision and instructed

me what to do.”

This witness, in several other places i in » bis San

said there was no coercion or intimidation on his part to

convince the respondent that he shoul make this guilty

plea. He further said that he explained to the respondent

that the agreement made by the Solicitor and the Chief of

Police would only be a recommendation to the Governor

‘and that it — 4 be up to the Governor as to whether or

not he would accept this recommendation and act on it;

that he would not be bound to do 80. J

the Solicitor, who prosecuted this case in behalf of the

State, was called as a witness by the respondent. He testi-

fied that it was his recollection that he approached vounsel

for the respondent with a view to having the respondent

enter a plea of guilty in this case. He said that after nego-

tiations that the respondent’s attorney came back to him

and: seid he woulda’t permit the respondent to plead un-

APPENDIX + A ey

ä less the Solicitor and Chief of Police would sign a letter

. that after the service of not more than ten years that

“we would recommend that he be paroled or pardoned.”

The Solicitor said it was finally agreed that respondent ~

the Board of Pardons or Governor a pardon. or parole

after the respondent had served for a period not exceeding

ten years. He further testified that when, the respo t

made application for a pardon or parole that he and

Chief of Police recommended that such be ‘granted.

‘Solicitor testified that he never talked to the respondent or

with any member of his family. He said that the ( only

negotiations that he had in connection with this case were

through the employed attorney of the respondent.

, Ray Bailey testified in his own behalf and admitted 8

. \thdt he beaped from custody in 1960 and went to North 8

_ Carolina and voluntarily surrendered within a few days

\ thereafter and was returned to prison. He testified that he

again escaped in 1957 and was at large for approximately

seven years when he was recaptured in the State of Mon- 8

. tana dnd returned to prison. 95

The respondent testified that he agreed to take a life

sentence with the understanding that he would get out in

ten years or less. He said “That’s the way it was ex-

plained to me.“ Upon cross examination, when asked if

his attorney did not come to the Greenville County Jail

with his brother and “told you that he had worked out a

22 concerning a consent verdict,” his answer was

: he didn’t remember what his lawyer said but JT re-

member he said he had it fixed for me to take a life

sentence. That's alk L remember.” When asked if the So-

licitor or any of his assistants ever in any way tried to

coerce him into entering a plea of guilty or a ‘consent ver-

diet, said “I don’t remember talking to them, so they

couldn’t.” He eo that he had seen a copy of the

letter which ‘the Solicitor and the Chief of Police signed

stating that they would agree to recommend either a pa- 2

62 Baur, RESPONDENT, v. MACDOUGALL et àl, PETITIONERS

role or a pardon after he had served a maximum sentence

of ten years. He admitted that the Solicitor and the Chief

of Police “kept their word” and recommended a pardon or

parole for him after he had served ten years. When

pressed for an answer as to who told him that if he would

take a life sentence that he would get out in ten years or

less, he said that his brother, C. M: Bailey, was the one who

made this representation to him.

The respondent called as his witness the Director of

the South Carolina Pardon and Parole Board. This witness

_ testified that the application of the respondent for a parole

came before his Board. In passing upon such application,

the Board considered the recommendation of the Solicitar

and the Chief of Police who on several occasions

recommended the respondem for parole. This witness

further testified that the prison record and his escapes hurt .

the respondent more than anything else. : ;

It has been held that allegations in a Petition for a

Writ of Habeas Corpus that the petitioner is held without

due process of law must be specific in statement of facts

ge nog: ype Lehlback, 160 U. S.

293, 16.8. Ct. 304, 40 L. Ed. 432; Whitten v. Tomlinson, 160

son, 191 Or. 409, 229 P. (2d) 633, 230 P. (2) 770, 29 A. L.

— ty, too plehdiogs r

spond with, and be confined to, the issues raised by the

A material variance between the pleadifgs and

the proof is fatal. 39 C. J. S., Habeas Corpus, Nin

and (b), page 661. 10

. We recur. to the petition herein in: which it is alleged

that the respondent's detention and restraint is unlawful _

and unconstitutional in that he was denied due process of

“Petitioner's guilty plea was induced by the writ- ” . —

ten promise and agreement dated January 13, 1936, of |

„then Solicitor of the Thirteenth Judicial Cireuit,

_and * * *, then Chief of Police of the City of Green.

ville, that if he would plead guilty as charged he would

only serve ten years and possibly less, and they would

aid in his parole, a copy of said agreement being at-

tached hereto.” 3

| The petition of the respondent is specific in that it is

alleged that the guilty plea was induced by the written

promise and agreement of the Solicitor and, the Chief of

Police of the City of Greenville,.that if he would plead

guilty he would only serve ten years and possibly less.

There is no proof of this fact in the record. The promise

and agreement, a copy of which said agreement was at-

_ tached to the respondent’s petition, is to the contrary.

The written promise made by the Solicitor and the Chief

of Police is definite, clear, explicit and unambiguous. The

only promise made in such letter was that if the respondent

entered a plea of guilty to murder with a recommendation

to mercy that these officers would “after the said Ray

Bailey has served for a period of not exéeeding ten years,

recommend fo the Board of Pardons or Governor a pardon

or parole.) It is stipulated that the Solicitor never con-

ferred with the respondent and that the written promise

and agreement was explained to him by his employed

counsel. - - 3 2

A study of the entire record in this case leads us to the

conclusion that the respondent has failed to prove by a

preponderance of the evidence that he was misled, deceived

or overreached in any way. There is nothing to show that

the plea was induced by coercion, false promises or misrep-

resentations. The respondent’s plea of guilty was freely,

voluntarily and understandingfy made after full consulta-

tion with his brother and his employed counsel. The record

is entirely free of any evidence that the plea of guilty

entered by the respondent-was induced or in way influ-

enced by any improper act or advice of his counsel but was

entered after full disclosure to him by his counsel of its

nature and possible consequences. There is a total absence

of any proof that any one connected with the State, or even

the respondent’s own counsel, did or said anything which

destroyed the. voluntary character of his plea of guilty.

It is our conclusion, under all the facts and circum-

stances as revealed by the record in this case, that the re-.

« uur, RESPONDENT, v et al., PETITIONERS

sponiient was not deprived of any ri guaranteed to him

under the Constitution of the United States or — this State.

We further conclude that the finding by the lower Court

that respondent’s plea of uilty was not voluntarily made,

is erroneous and should be set aside.

The judgment df the lower, Court is reversed. The writ

of Habeas Corpus is discharged and the respondent is re-

manded to custody for the service of the sentence imposed

upon him by the Court of General Sessions for Greenville

County. 7 5

Reversed * remanded.

8 G. 8. 9 Bussey and BrarsrorD, JJ.,

concur.

Arme „ Be

APPENDIX A 6

THE STATE OF 8 CAROLINA

? IN THE SUPREME COURT

Appeal from Richland County | —

Firta JuprcraI. Cmceurr

RAL S. BAILEY, RESPONDENT, °

3 versus 8

ELLIS MacDOUGALL, Dmecror or THE DEPARTMENT OF

n FOR THE Suara OF S CaRoLina, APPELLANT

Petition for Rehearing

To THE HonoraBLe JUSTICES OF THE SUPREME Court OF

Sours Carona:

An opinion of this Court in the above entitled matter

was filed on the 10th day of November, 1965, reversing the

judgment of the Court of Common Pleas of Richland

County, and thé Respondent, Ray S. Bailey, by his Attor-

ney, Betty M. Sloan, respectfully requests a rehearing: for

the reasons and on the grounds hereinafter stated: |

The Court’s opinion is manifestly based primarily

upon the facts that the Respondent was represented by

counsel of his choice who served him in good faith and to

the best of his ability, and that the Solicitor dealt with the

attorney in presenting the agreement and not the Respond-

ent personally, and that the attorney presented the propo- .

sition of the guilty plea. _

We respectfully submit that the record is quite clear

as to the * facts which should be considered by this

Court.

Mr. J. G. ‘Leatherwood, the Solicitor for the Thirteenth _

Judicial Circuit at the time in question, testified that at the

time of the attempted arrest by the Greenville County

officers, on the night in. question, they had no legal process

or warrants and there was no outward violation of any ~

law by tlie persons involved that could be seen by the

officers. (T. 7 84.)

- ⁵ĩ—˖² AMD NA ye ——

—

That it was never definitely 8 who fired the first

shots, the officers or the defendants. (T. R., p. 85.)

"That the only witness for the State was unavailable

and as stated in the Record at page 86, Rae | :

4 Now, with whom did you talk it es Me. 8 4

Leatherwood? :

A. The Chief of Police and Tom Wofford: pe we

felt that if we didn’t get Coren’s testimony that there

was some possibility of failing to get any kind of a

conviction due to other legal matters which would

arise during the trial. The public probably didn’t un-

-——@erstand this phase of it. But we knew it would come

up whether o& not there were any warrants and the

right to arrest him and further that he had a great

number of witnesses who-would testify that at the time |

- - testimony. I don’t know about Singleton; Tm not posi-: «

tive about that. But we felt like he was going to escape

us if we didn’t do something and I’m satisfied that we

Ce 33 agreed among ourselves that if we would get him to 4

> plead guilty with a recommendation of mercy it would

be to the best interest of the State.“

That based upon his personal evaluation ot the State’s f ö

case against the Defendant, the Solicitor approached the :

attorney for Ray Bailey with the N for a guilty

plea. (T. R., p. 87.)

That the Defendant's attorney was not told the full

facts of the unavailability of the State’s witness, which

would have immediately made the weakness of the State’s

position apparent to an attorney.of Mr. Wyche’s ability,

( and greatly influence his advice to his client as quoted in the

opinion and from the record he “told them. just exactly

_ the proposition was and what the circumstances were, and

we discussed the case as a lawyer does with his client.”

That lacking the full disclosure of the facts, his evalu-

ation of his client’s position was necessarily based on his

oun doubts chout being able fo enecetatully defend the case.

(T. R., p. 15.)

: It is a well settled principle that the duty of the Solici-

, tor is not only to prosecute, but to see that justice is done.

. . ‘ 5 . if 67 5 i

On this premise is founded the Webel diseretionary powers cae

delegated to the office of the Solicitor.’

It was the duty of the Solicitor to advise the attorney

for the Defendant of the unavailability of the State’s wit-

ness, when asking him to approach his client with the

proposition of the promise to recommend parole after ten

years in exchange for the guilty plea. 7

To extract from Ray Bailey, through his attorney, a

plea of guilty without full disclosure of all the facts to his

attorney, and thus to him, i in exchange for a written prom-

ise to do anything in mitigation of the statutory sentence -

without the knowledge or consent of the Court, and to the

_ bargain for the plea, while knowing full well that the prom-

ise implied in the agreement was not binding, but that the

State could not prove the guilt. of Ray Bailey beyond a

reasonable doubt; these acts constitute a fraud upon the

Court and a travesty of justice.

A plea of guilty so obtained is not freely and under-

standingly made where full disclosure of the material facts,

which influence the deciston to plead, is not made to the

Defendant or to his attorney, and where the plea is induced

by - promises which deprive it of.the character of a volun-

tary act, such a plea is void and should be set aside.

_ Respectfally submitted,

: BETTY M. ‘SLOAN,

Attorney for Respondent.

Columbia, South Carolina, =

November 18, 1965. :

Certified True Copy

Francis H. Smith, ; $i Es +

Clerk, S. C. Supreme Court. 5

68 ‘ae, mee, v. MacDovaats ot al, Permowns

APPENDIX o

“pS aa boy Decemnber 14, 1965

Mrs. Betty McBride Sloan

1316 Washington Street

Columbia, South Carolina

= Re: a 6. MacDougall, Director ee

ö The Court 1 this day refused your 1 for re-

hearing in the above case in the following order: a

N Petition denied. a

/s/ JOSEPH R. MOSS, A. J.,

_ /8/ J. WOODROW LEWIS, A. J.,

_ /8/ THOS. P. BUSSEY, A. J.,

e, J. M. BRALSFORD, A. J. .

The 1 remittitur is being sent down. today.

Very truly yours,

FRAN CES H. SMITH,

0 Clerk.

— ee

| APPENDIX D

SUPREME COURT OF THE UNITED STATES

No. 1217, Ocroszs TERM, 1965

‘RAY 8. BAILEY, Permmiowms,

versus

ELLIS MacDOUGALL, D OF THE Dramen OF

ae: x 5 Corrections FOR Sour CaO

On Berns FoR WRIT or 12 TO THE ‘SUPREME ,

Court or. tHE State or Sours Caronina ~

: On Consideration of the petition for a writ of certi-

orari herein to the Supreme Court of the oats of South

It Is Ordered by this: Court that the said petition be,

and 125 same is hereby, denied.

May 31, 1966

A true eopr JOHN F.DAVIS *

Test: 8

Clerk of the Supreme Court of. the. United States 5

BY E. S. SULLIVAN 5

Chief Deputy =e

APPENDIXE|

ORDER N

N ‘Civil A No. 67-217

Petitioner, presently ‘confined in the South ‘Carolina,

State Penitentiary, prays for a Writ of Habeas Corpus of . -

this court upon the grounds that: nA

The conviction and sentence pursuant to which

? Petitioner 1 is being detained was imposed in violation

of the 5th and 14th Amendments to the Constitution of

the United States and Article 1, Sections 17 and 18 f

the Constitution of South ‘Carolina i in that his plea of

' guilty was involuntary being the result of an agree-

ment which was reduced to writing and signed, negoti-

ated between the Solicitor for the Thirteenth Judicial

Cireuit, the Chief of Police and the Attorney for the

Petitioner, without disclosure to the Court, wherein.

the Petitioner was promised that if he would plead

guilty to the ‘indictment of murder with recommenda-

tion to the mercy of the Court, that he would be given

a life sentence and that after the Petitioner had - served —

à period not exceeding ten (10) years, the Solicitor

and Chief of Police would recommend: a pardon: or

parole and at that time such recommendation was tan-

tamount to parole and although Petitioner has been

under sentence for a period of thirty-one (31) years,

‘the State has consistently refused to be bound by the

promise of the Solicitor and no paren | or eS has

been fortheoming.

This court has examined carefully the 0 record

Petitioner, Ray S. Bailey, was indicted August 25,

13932, on a charge. of murder i in the Greenville County.

° 5

and for a statement of the proceedings adopts the state-

ment of petitioner contained in “The Petition for a Writ of

Certiorari to the South “arolina Supreme Court,” which

was presented in the Supreme Court of the United States

in the October 1965 term. The United States Supreme Court

refused to issue a Writ of aun by Order dated ad

31, 1966. os

855 Court of General Seations. and tried in January, 1936,

having been extradicted to the State of South Carolina

from the State of North Carolina pursuant to the de-

cision of [the court] in State of South Carolina v. Ray

Bailey, 289 U. S. 412 (1933)../Petitioner changed his

plea to guilty of murder with recommendation to the

merey of the Court, following the negotiation of an!

agreement, which was reduced to writing between the

then prosecutor, the Chief of Police and petitioner's

attorney, the agreement being that the prosecutor and

Chief of Police would recommend a pardon or parole

after the petitioner had served a period not exceeding

ten years. Neither the fact nor the contents of the

agreement was disclosed to the Court, and the peti-

tioner was sentenced to be confined for a term of his

‘ whole natural life. a

on May 4, 1964, the petitioner, through ‘counsel,

- filed a petition for a Writ of Habeas Corpus in

the Court of, Common Pleas for Richland County, al-

leging that his restraint. under the above sentence was

unlawful and in violation of his constitutional rights

under both the State: and Federal Constitutions, as-

serting among other things a denial of due process of

law and that his guilty plea was ‘induced by a promise

that he would serve only ten years or possibly ‘less of

the sentence. The Honorable Jan Grimball, Judg

Fifth Judicial. Circuit, issued the Writ of Habeas

Corpus, and hearings were held. Fes eng eh

Defense counsel for petitioner at the time of his

trial and the prosecator, Mr. J. G. Leatherwood, solici-

tor for the Thirteenth Judicial Circuit in 1936, offered

‘testimony in the habegs corpus proceeding stating that

they entered into negotiation concerning a possible

guilty plea, that the prosécutor did not personally con-

fer with the petitioner, and that the wri n agreement

was presented to him by his attorney.

The proseeutor ‘testified that he initiated the ne-

gotiations to get the petitioner to plead guilty becanse

the irregularities in the attempted arrest, coupled with

the refusal of the principal witness for the State to

72 Banzr, RESPONDENT, v. MacDOoUGALL et al., PETITIONERS

testify, made the possibility of getting conviction ex-

tremely remote. He further testified that the facts of

the deficiency of the State’s case were not known to

petitioner’s attorney during the negotiations for the

plea, or to the Court at the time the plea was entered.

° By Order of July 29, 1964, Judge Grimball set

aside the guilty plea and sentence on the grounds that

it was induced by the promise with respect to the sen-

tence, and remanded the case to Greenville County for N

„a new trial. The petitioner was released from custodyx

after posting bond. The State appealed to the Supreme

Court of South Carolina.

The Supreme Court of South Carolina reversed

and remanded, discharging the Writ of Habeas Corpus

on November 10, 1965, .... S. C. . 145 S. E. (2d)

425 (1965). Petition for rehearing was filed on Novem-

ber 18, 1965, to fogus the attention of the Court on the

quétion of non-disclosure by the prosecutor, but re-

‘hearing was denied without b on December 14,

1965.

nen the en t e of n bo-

kore the South Carolina Court of Common Pleas which was

later printed and filed in the Supreme Court ef South Car-

- olina upon. the appeal from the decision of the Court of

Common “Pleas. The facts with which those proceedings

were involved were as follows:

C. Granville Wyche, Esquire, an outstanding attorney :

of the Greenville Bar, was employed by C. M. Bailey,

brother of petitioner, to defend petitioner on the charge of

murder. He testified that public sentiment about the case

was very strong because the policeman who had been shot

was very popular and was a man of considerable standing

in the community. The policeman named Hunt, shot in

Greenville, but petitioner. originally claimed to Attorney

Wyche that he, petitioner, was not in Greenville on the

occurred in Madison County, North Carolina.

shooting that

Attorney Wyche explained before Judge Grimball that he

’ 1 This is the identical Used in the Petition for the Writ of

Certiorari, except for omission references to the transcript. ;

of life imprisonment. Wyche agreed to recommend 2

bg: follows:

informed Attorney Wyche that the. State of South Caro-

under no circumstances should he enter a plea of r

|. * 2 -e e ae |

thought the case would be a difficult one to defend and that

a witness named Singleton, who was a city officer of the

City of Greeriville; would testify defendant Bailey was

in Greenville on the night of ting. Wyche then dis-

cussed with Greenville Chief of Police Smith and the then

Thirteenth Judicial. Cireuit Solicitor the fossibility of

pleading petitioner guilty to manslaughter. The solicitor

lina would not accept a plea of manslaughter but that it

would. accept a plea of “guilty with recommendation to the \

merey of the edurt,” which calls for a mandatory sentence

plea to the petitioner if the Chief of Police and the

would recommend a pardon or parole after Sotitioner

had served ten years. Wyche then went with the 8

brother who had hired him to the jail and di it with

petitioner. Petitioner insisted that he was innocent. Wyche

testiſied that he told the petitioner that if he was not guilty,

He then went back to Solicitor Leatherwood

to put in writing the ö

— ne OE ee, Oe ee

‘This will confirm our conversation that in the

event that Ray Bailey enters a plea of guilty with ree-

ommendation to mercy in the case now p against

him in the General Sessions Court for Greenville

County, that I will, knowing the facts of the case and

the circumstances surrounding’ same, after the said

Ray Bailey has served for a not exceeding ten

years, recommend to the Board of Pardons or Gover-

nor a pardon: or parole.

This communication was later read to — *.

‘Petitioner then appeared before the court. A jury was em-

paneled, and hesplead guilty. He wee Soup enilty of

der with recommendation to mercy.” 3

The Honorable A. L. Gason, then

the Greenville County Court of General Sessions, sentenced

life. After the plea was taken, Atto — —

„ he took the matter up

with the Governor of South Carolina, the Honorable Ran-

some Williams, Smith and Leatherwood participated with

him in asking the Governor to pardon the petitioner.’

Governor Williams turned down their plea. J. Strom Thur-

mond, Governo? of South Carolina from 1947 to 1951, was

also contacted. However, he was pledged to the rule that no

‘pardon or parole could be given a life prisoner until he had

served 12 years. At the time the petitioner had not served

and Parole Board. Upon cross examination, Attorney

boos glace e

wood, wrote strong letters to the Parole Board. The two

officers carried out their promise. Wyche was explicit in

that fact that “no coercion was exterted on the part of

Solicitor Leatherwood against Ray Bailey” and “there were

absolutely no other far as I know.”

Attorney Thomas Wofford of Greenville testified that

he was assistant to Solicitor Leatherwood at the time of the Sey

_ ‘guilty plea. He had made, he said, an exhaustive investiga-

tion into the case and found that a principal witness by the

name of Corea had been sent to federal prison, When Corea

5 ; } | ; 3 7

Solicitor Leatherwood was never communicated to Judge.

Gaston: ü :

Petitioner was allowed to testify, apparently in full.

He told of his escape, of the fact that he stayed in North |

Carolina three years before going to Montana in 1960. His

statement was “I agreed to take a life sentence, with the

understanding that I would get out in ten years or less.” He

stated that his brother was a go-between between Attorney

Wyche and petitioner. The late Governor’ Hoey was his

North Carolina lawyer. He stated he was not coerced by

either Leatherwood. or Wofford, but that his brother told

him that if he didn’t plead that they were going to try some

other people for the erime. He testified that as far as he

knew Solicitor Leatherwood and Chief Smith kept their

word. He maintains that he was innocent. N

Another witness was, Honorable J. C. Todd, Directo

of the Pardon and Parole Board, who testified that he was

aware of the agreement involved and that the Board con-

sidered the agreement at the time he first came up.“ He

stated that the solicitor had the power to recommend a

parole but that neither the solicitor nor the Governor nor

any other official can bind the State Pardon and Parole

Board. ö

The deposition of the late J. G. Leatherwood, which was

originally taken July 10, 1964 because of Leatherwood’s de-

clining health sheds no significant light on the facts. He

affirmed that he entered into the agreement, committed it to

writing, and handed it to Wyche. Leatherwood never talked

to petitioner at any time. He did carry out his agreement

and apparently, he went to great.lengths to honor his

pledge not only to recommend the parole but to follow it up

with additidnal effort. | ; |

Other testimony was offered and received. tel

Judge Grimball, the State Judge hearing the petition

for habeas corpus, refused to grant petitioner’s motion for

an absolute release but set petitioner’s plea of guilty aside

and ordered him returned to Greenville County for further

proceedings. The State of South Carolina appealed, and the

* Court of South Carolina, by opinion dated No-

. * * a

: 1 Bamsy, Resronpant, v. MacDouca.t et al., Puro

vember 10, 1965,. reversed the lower court in the following

The petition of the respondent is specific in that

it is alleged that the guilty plea was induced by the

written promise and agreement of the Solicitor and the

Chief of Police of the City of Greenville, that if he

would plead guilty he would only serve ten years and

possibly less. There is no proof of this fact in the

record. The promisé and agreement, a copy of which

said agreement was attached to the respondent’s .

petition, is to the contrary. The written premise made

by the Solicitor and the Chief of Police is definite,

clear, explicit and unambiguous. The only promise

made in such letter was that if the respondent entered

‘a plea of guilty to murder. with a recommendation to

mercy that these officers would ‘after the said Ray

Bailey has served for a period of not exceeding ten ah

years, recommend to the Board of Pardons or Governor

a pardon or parole.’ It is stipulated that the Solicitor

never conferred with the respondent and that the

written promise and agreement was explained-to him

by his employed counsel. - Wun

A study of the entire record in this case leads us

to the conclusion that the respondent has failed to

prove by a preponderance of the evidence that he was

* misled, deceived or over- ed in any way. There is

nothing to show that the was induced by coercion,

false promises or misrépresentations. The respondent’s

plea of guilty was freely, voluntarily and understand-

ingly made after full consultation with his brother and

his employed-counsel. The record is entirely free of

any evidence that the plea of guilty entered by the re-

spondent was induced or in any way influenced by any

_improper act or advice of his counsel but was entered

after full disclosure to him by his counsel of its nature

and possible consequences. There is a total absence of

any proof that any one connected with the State, or

even the respondent’s own counsel, did or said anything

which destroyed the’ voluntary character of his plea of

a ae 77

1 A

- stances as revealed by the record in this ease,

respondent was not deprived of any rights teed

to him under thérConstitution of the United States or

| of this State. We farther conehude that the finding by ~~

the lower Court that respondent’s plea of guilty was

not voluntarily made is erroneous and should be set

aside. 145 S. E. (2d) 432.

The United States Distriet Court hes the discretionary

power to hold an evidentiary hearing on an application for

habeas corpus. challenging the validity of a state criminal

conviction. Fay v. Noia, 372 U. S. 391, 83 S. Ct. 822, 9 L.

Ed. (2d) 837. It is not required to an evidentiary hear-

ing. A hearing is mandatory when (1) the. merits of the

factual dispute are not resolved in the State hearing, (2)

the state factual determination is not fairly supported by

the record as a whole, (3) the fact-finding procedure em- .

ployed by the State Court was not adequate to afford a full

and fair hearing, (4) there is a substantial allegation of

newly discovered evidence (5) the material facts were not P

’ adequately developed at the State Court hearing, or (6)

for any reason it appears that the state trier of fact did not

afford the habeas corpus applicant a full and fair hearing

on the facts. Townsend v. Sam, 372 U. S. 293, 83 S. Ct. 745,

9 L. Ed. (2d) 770, 31, L. W. 4297. See annotation at 9 L.

Ed. (2d) 1246.

An evidentiary hearing i is one in which are tried is-

sues of basic, primary or historical facts, but not mixed

questions in fact and law, which require the application of

a legal standard to the historical-fact determinations. 9

L. Ed. (2d) at 1247. The United States District Court, on a

state prisoner’s application for habeas corpus, can dismiss

the application without a nearing where the entire record

is before the Court. 2

In the instant case a plenary bearing i is not required.

Justice would not be served by ordering a full hearing or

by awarding any or all of the relief sought by the petitioner.

The State Court records show that the petitioner was not

Zz denied due process of law. The record was fally developed

and explored at state level. :

78 Bane, een v dean ot a; rns.

Fu facts of the record are not in dispu laid devs te

., deprivation -of constitutional rights. Applying each of the

~ eriteria to the instant case, the petitioner i is not entitled to

a hearing. The State Courts have given opinions, conclu-

sions of ‘law, and finding of fact, and have applied the

Proper standard of federal law setting forth the constitu-

tional rights of the petitioner. The records show application

by the State Courts of the correct constitutional standards.

The record shows that the petitioner has received full and

fair hearings on the testimony conperning all the allega- |

tions raised in the present petition. .

ö With reference to criteria one (1), as set out in Town-

Send v. Sain, supra, paragraph 16, the United States Dis-

trict Court is not required to hold a- hearing because the

record discloses the findings of fact and the application of

the correct constitutional standards. No combination of

facts alleged would prove a violation of constitutional rights

and tle issues of law are not difficult or novel. Under cri-

teria two (2), the record shows a factual determination.

With regard to criteria three (3), there were no serious pro-

cedural errors and the trial was adequate to ascertain the

-. truth. Concerning criteria four (4), there is no newly dis-

covered evidence. Under criteria five (5), the petitioner —

developed all crucial evidence concerning constitutional

rights at his trial, and under criteria. six (6), the record

shows relevant facts.

| The record shows the evidence taken at the *

trial, the findings of fact and the legal standards applied.

The petitioner has been afforded the one full hearing to

which he is entitled and the matter is coneluded as to the

taking of evidence at the discretion of the United States

District Court. aga

The petition is discharged.

AND. IT IS SO ORDERED.

_ ROBERT W. HEMPHILL,

Se e bs United States District Judge.

Columbia, South Carolina FES EBS Gs

a oo

| APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT |

No. 11 135

RAY S. BAILEY, APPELLANT,

versus

ELLIS C. MacDOUGALL, Dmecror or rae Sours ca.

_ Lana DepartMent or Corrections, et al., 7

‘ApreaL From THE Umrrep States Distarcr Court ron THE

' District or SourR Caroiiva, at CoLuMBIA

HEMPHILL, Distaict Juοẽj

(Argued December 4, 1967. Decided February 28, 1968)

Before BOREMAN, BRYAN anp BUTZNER, -

Cmscurr JUDGES

Betty M. Sloan for Appellant, and Edward B. . As-

sistant Attorney General of South Qarolina (Daniel R.

McLeod, Attorney General of South Carolina, and B.

O. Thomason, Jr., Solicitor, Thirteenth Judicial Cir-

cuit, on brief) for Appellees. .

Burzwer, Cireuit Judge:

Ray B. Bailey was sentenced to life imprisonment in

1936 upon a plea of guilty to murder. Now Bailey chal-

lenges the validity of his plea, which was entered after the

chief of police and the state's solicitor promised in writing

they would recommend parole or pardon after Bailey had

a served a term not exceeding ten years. We hold that Bail-

ey’s arraignment was defective and the record fails to

establish he understood the consequences of his plea. We

remand the case 8 proceedings consistent * this

opinion.

80 Banur, RESPONDENT, v. MacDoucatt, et al, f.

Bailey applied for a writ of habeas corpus in 1964

in the Court of Commdn Pleas for Richland County, South

Carolina. After a full evidentiary hearing, the court found

that Bailey’s.guilty plea was not voluntary, and ordered a

new trial. Upon appeal the Supreme Court of South Caro-

lina reversed and entered final judgment discharging the

- writ. Bailey then applied to the United States District

Court for a Writ of-habeas corpus, which was denied upon

5 75 basis of the state records without a plenary hearing.

A policeman, attempting to thwart a bank robbery, was

n im 1982 in Grocnville, Sent Gäbeties, A fev days

later Bailey was charged with murder. Following an unsuc-

cessful fight against extradition from North Carolina,

Bailey fled to Georgia. He was captured and returned to

Greenville for trial. His brother, C. M. Bailey, and other

members of his family retained a capable and experienced

lawyer to defend him. He steadfastly maintained that he

was not in Greenville the night of the murder, and upon his

arraignment he pleaded not guilty. .

The mainstay of the prosecution’s case was a witness

named Corea, who identified Bailey as the murderer of the

policeman. Corea was sentenced to prison for robbery and

refused to testify unless he was pardoned. The South Caro-

solicitor who was prosecuting the case knew that an-

other eyewitness was unable to identify Bailey positively.

He also knew a number of witnesses would support Bailey’s

‘ alibi. The solicitor suggested to Bailey’s lawyer that Bailey

plead guilty “with a recommendation to mercy.” * This plea .

would result in a mandatory life sentence. Bailey’ s lawyer

1 Bailey v. MacDougall, 847 8. C. 1, 145 8. K. 2d 425 1 5

denied, 384 U. 8. 962 (1966). 0 nen.

ye was arrested in North Carolina on a warrant o f extradi-

tion. gig: ang ty 2 Judge of the Superior Court of

North held that South lina had failed to show probable -

— . The Supreme Court of North Carolina affirmed.

B e 862, n (1982). The Court

— United States reversed, holding Bailey had the burden of show-.

reasonable doubt „„ eee

Carolina v. Bailey, 289 0. S. 412 (1983). a

In South Carolina, a eee ee my gd

- befo 4 to the returns a

re a jury, whith, pursuant plea, “the court”

of murder with the Fecommendation to the mercy of

Apex

\ did not know Corea refused to. testify.‘ He thought the evi- „

‘dence would be sufficient to take the case to the jury and

‘he knew that public sentiment was aroused over the killing.

He said that he could advise his client to plead guilty to

manslaughter, but the solicitor declined this offer. The law-

yers finally agreed that if Bailey would enter.a plea. of

_ guilty to murder with recommendation to mercy, ‘the solici-

tor and the chief of police would recommend a pardon or

parole after. Bailey had served not more than ten years.

The defense attorney advised Bailey that if he did not

participate in the * he should not plead guilty. The

attorney explained that the plea arrangement meant a fife

sentence’ would be imposed, and that it did not mean the

Governor would have to grant parole or pardon. He added

that ordinarily the Governor- would give great weight to

the recomméndation of the solicitor and the chief of po-.

Alice. Bailey agreed to plead guilty. His attorney, out of an

F abundance of caution, required the solicitor and chief of

, police to put. ae promise in be They signed this

statement: ;

This will eins our ideen that in the event

that Ray Bailey enters a plea of guilty with recom-

mendation to merey in the case now pending against

him in the General Sessions Court for Greenville

County that I will, knowing the facts of the case and

the circumstances surrounding same, after the said Ray : .

Bailey has. served for a period not exceeding ten years

recommend to the Board of Pardons or Governor a par?

don or parole.“

Bailey withdrew his original plea and pleaded guilty

with recommendation to mercy. He was sentenced to life

imprisonment. No one mentioned the agreement. No in-

quiry was made to determine whether Bailey’s plea was

“Constitutioniel dud process cannol be satiated where ae

— esa e

a conviction and f 3 to either the defend- ~

2 counsel or the court.” c

in the state court and we do not consider it.

5 When Bailey was the Governor of South Carolina had

absolute discretion to grant paroles and pardons. Ten years later, the

Governor no longer exercised parole — he could pardon.

The Parole alone granted p es,

. 0 * ©

82 "Bana, menen v MacDovaats ot ei, Pam

voluntary or whether hes underatood the charges against

him and the consequences of his plea. In the state habeas

hearing the solicitor testified that he believed the trial 5

judge was not aware of the agreement. 3

. Bailey’s lawyer placed the statement in his safety 4 :

posit box. At the expiration of the ten- year period, the so-

licitor, the chief of police, and Bailey’s attorney unsuccess-

kully asked the Governor and the State Parole Board to

pardom or parole Bailey.

At the state habeas corpus hearing, Bailey testified

that he was not in Greenville at the time the police officer

was killed, and that at first he refused to plead guilty. He

agreed to change hjs plea because he was certain any agree-

ment the solicitor made would be carried out. He testified —

that there wasn’t any doubt in his mind that he would 125

released in ten years.

; Bailey was not alone in testifying he believed he eal

serve only ten years. The assistant solicitor, who investi-

gated the casé and was present at the atraignment, testi-

that time, I was convinced that, after service of these ten

* years, without doing something in the penitentiary to pre-

vent it, he would have been released. I was convineed of it

Bailey raises several: sqhections about see bargaining. ,

He does not urge the practice in itself is unconstitutional.’ —

After about 14 4 years Bailey es to North Carolina

surrendered. a ved

and:

— sanction f nr defend d to the 85

admittedly ‘endant. 5 ‘abor v. nit od

725 208 F (2d) 948. (4th . 1953), 345 U. 8. 1001

(1953) ; Aden o. North Corolina, T. Bap. (W. D. N. C.

A comprehensive review of supporting plea

derepining ie contained is ez erekes v. Maroney,

428 Pa. 837, 228 K. (2d) 699 1898). ape when restricted by

safeguards, is ap in of Hr

Dy ay is, ag Ree era III (tentative

| He dees deim the promise rendered his ‘ples involuntary

and that his arraignment eonstitutionally defective. . -

a Er Bailey believed he would

serve 1 i that the agreement lead.

lt ee the voluntary nature of

a: euilty- plea? Supreme rt of. South Carolina con-.

cluded this judgment was erronebus“ The State - Supreme

Court emphasized that the promise was. only to recommend

parole or pardon and that it had been kept, that the writ-

ten statement was unambigtious,/and that Bailey’s attorney

had explained to him that the Governor might not follow

the recommendation. It concl ‘the evidence did not

disclose that the plea was l coercion, false prom-

isses, or misrepresentatigny-and that Bailer s plea was vol-

a . e

In Machibroda- b. United Btates, 368 v. 8. 487, 493

11962), the Court held:

ö ne. guilty plea, if induced. by promises or threats

. deprive it of the character of a voluntary act, is

7 pcg A conviction based upon such a plea is open to.

collateral attack. See Walker v. Johnston, 312 U. S.

275; Wale v. Johnston, 316 U. S. 101; Shelton v.

: United States, 356 U. 8. 26, reversing, 246 F. (2d) 571...

The voluntariness of Bailey’s plea does not. depend

upon whether he was the victim of a false promise. The -

question remains: Did the promise, even if fulfilled, in-

° duce the plea and ‘deprive it of the character of a voluntary

act? Whether Bailey’s plea was voluntary raises issues of

fact, upon which the state courts differed. The state appel-

Iate court’s rejection of the state habeas court’s findings

ordinarily would require us to remand the case to the fed-

eral district court for an evidentiary hearing. Townsend v.

Sain, 372 U. S. 293 (1963). However, we find & remand un-

nese Per fh echo rth cree ch

N. T. 1966) (dictum). .

sera ee 1 . Sa ;

itself a conviction. Like a verdict of a jury, it is con-

clusive. More is not required; the court has nothing to

made voluntarily after proper advice and with full un-

derstanding of the consequences.” ;

No ‘particular form or ritual is required, but it must ö

appear that the defendant understood the consequences of

his plea.“ The evidence discloses, however, that no inquiry

result

yep tay yy guilty.” Note, Guity

Me oH to Seoure Pleas, 112

U. 1 — Na g *

* Fed. Crim. P. amended in 1966, requires court to

was made by anyone to determine Bailey's: i

of the consequences of his’plea, The judge asked him no

questions. Indeed, it appears from the record that the judge

himself did not kw the full consequences. Bailey’s attor-

ney did his best to explain it, but he testified at the habeas

corpus hearing that he could not say that Bailey or his

brother understood the proposition. Apparently the court

and Bailey's attorney assumed that Bailey understood.

Bailey challenges the validity of this assumption. He claims

he thought the consequences. would be not more than ten

years’ confinement.in prison. g

Ordinarily ——ͤ —

thay the defendant understood the of his pléa

even when the ‘parties have engaged if plea bargaining.

The bargain itself generally is laid before the court through

the recommendation and motions of the prosecuting attor-

ney.” The difficulty arises in Bailey’s case because the

promise made bythe pfoscating offers was extrajudicial. :

It was never revealed in open cburt, although Bailey’s at-

torney and the solicitor both recognized that it was indis-

pensable to securing Bailey’s plea and that it had an im-

portant bearing upon Bailey’s punishment. Regardless of

whether we accept the state’s or Bailey’s version of the plea

arraignment, the uncontradicted evidence shows that no

effort was made at Bailey’s arraignment to determine which:

version he understood. The dispute about the plea agree-

_ment, which must be adjudicated thirty years after arraign-

ment, demonstrates the fundamental unfairness and the

lack of due process in placing upon a prisoner the burden

of showing by a preponderance of the evidence terms of

— — — f —

the consequences of his plea. Nevertheless, if Bailey

ge F.

, 262 F. (2d) 72 (4th Cir. 1958), cert. denied,

(1969). The state, however, has the burden of

— Se

110

;

lved by an examination of “reasonable inferences to

8175

The

tor testified that at the time of the arraignment he was can.

vinced, barring misbehavior, Bailey would be released after

ten years. Thus, he tends to corroborate Bailey. The only

witness who diseussetl with Bailey the meaning of

the agreement was Bailey’s attorney. With regard to

Bailey’s claim, “I accepted a life sentence with the dis-

tinct understanding that I would be free in ten years,

Bailey’s attorney testified, “Hé may have understood it that

way even though I tried to explain to him the circum-

stances of it, not being a lawyer and not being familiar with

legalities and things of that kind. It’s possible that Mr.

Bailey felt that that would happen.” This.evidence, does not

‘establish whether the state’s version or Bailey’s version of

the plea agreement should be accepted. The evidence

its consequences. At the arraignment the court made no

effort to ascertain what Bailey understood, either through

its own efforts or through counsel, and the state has

to show this error was harmless. The judgment of

trict court is reversed and this case

issuance of a writ of habeas corpus. Execution of the writ

poy he — for a reasonable time to permit the State of

uth Carolina to retry Bailey if it be so advised.

88 ‘Bana, RESPONDENT, v. MacDoveats ot af, Fee

5 _ APPENDIX @

FOR THE FOURTH CIRCUIT

No. 11,735

RAY S. BAILEY, Arrztianr,

ELLIS MacDOUGALL, Dmecror or THe DzparTMent or

Corrections ron THE Stare or SourH CaRoLINa, ETAL, ,

ORDER DENYING REHEARING EN BANC .

Upon consideration of the petition filed by Ellis Mac-

Dougall, Director of the Department of Corrections for the .

ee ee a eee one a Seon we :

ranting. a rehearing en banc. .

Wherefore, with the approval of all the. judges of this

a is ORDERED that the petition * and 161 is hereby,

deni .

b FILED

April 29, 1968.

SAMUEL W. PHILLIPS,

Clerk.

HERBERT S. BOREMAN, |

| United States Circuit Judge.

‘+ ALBERT v. BRYAN,

— United States Circuit Judge.

/ JOHN D. BUTZNER, JR.,

l United States Jndge.

A true copy,

Tested: SAMUEL W. PHILLIPS,

a Clerk, U. S. Court of Appeals

for the Fourth Cireuit.

By: MARGARET I. DAVIS,

Chief Deputy Clerk.

—

;

„** *

}

* *

‘

;

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.