Petitioners Brief — Blackledge v. Perry

1

IN THE | MICHARL ROBAK, JR.,

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

No. 72-1660

STANLEY BLACKLEDGE, Warden,

Central Prison, Raleigh, N.C. and

STATE OF NORTH CAROLINA,

Petitioners,

v.

JIMMY SETH PERRY,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR PETITIONERS

ROBERT MORGAN

Attorney General of North Carolina

RICHARD N. LEAGUE

Assistant Attorney General

Post Office Box 629

Raleigh, North Carolina 27602

Telephone: (919) 829-7188

Counsel for Petitioners

Washington, D.C. ¢ CLS PUGLISMERS’ ¢ LAW PRINTING CO. e (202) 393-0625

i

TABLE OF CONTENTS

QUESTIONS PRESENTED ............2 cc ceeeeee

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ..............------

STATEMENT OF THECASE .........2.ccccceeee

ARGUMENT:

I. Former Jeopardy Is a Defense Which Is Waived

By a Valid Plea of Guilty. The Same Is True of

a Due Process Clause Violation Which Arises

- Because of a Chilling Effect on the Right to

pe Rr re eee

Il. A Valid Waiver of Double Jeopardy Is Inferred

Despite the Silence of the Record as to It,

Provided the Record Meets the Standard Set

Out in Boykin v. Alabama, 395 US. 238

Ns oo ik Pains be bee 0s OR 6a 645 5 ces

TABLE OF AUTHORITIES

Cases:

Berg v. United States, 176 F.2d 122 (9th Cir. 1949) ......

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

Brady v. United States, 397 US. 743(1970) ..........

Brady v. United States, 24 F.2d 399 (8th Cir. 1928) .....

Cabalero v. Hudspeth, 114 F.2d 545 (10th Cir. 1940). ....

Cole v. North Carolina, 419 F.2d 127 (4th Cir. 1969) .....

Cox v. Crouse, 376 F.2d 824 (10th Cir. 1967) .........

Cox v. Kansas, 456 F.2d 1279 (10th Cir. 1972) .........

Curtis v. United States, 67 F.2d 943 (10th Cir. 1933) .....

Ferini v. United States, 340 F.2d 837 (8th Cir. 1965) .....

i

Page

Forthoffer v. Swope, 103 F.2d 707 (9th Cir. 1938) ...... 5

Fowler v. United States, 391 F.2d 276 (Sth Cir.

NE So boa Bake a Raa es ek wake hs es 5

Grogan v. United States, 394 F.2d 287 (Sth Cir

as hs Ao oe os hoe ds 8

Haddad v. United States, 349 F.2d 511 (9th Cir

SE kk ie own bo oe os oo Oe Es KO ho 6 ols 9

Ham v. North Carolina, 471 F.2d 406 (4th Cir. 1973) ..... 4

Harris v. United States, 237 F.2d 274 (8th Cir. 1956) ..... 6,9

Kistner v. United States, 332 F.2d 978 (8th Cir.

BOE cuiea se oa ee os awe cece ececees 6

Levin v. United States, 5 F.2d 598 (9th Cir. 1925) ....... 9

Morlan v. United States, 230 F.2d 30 (10th Cir

a ac ha a i ho bee tcc 9

McKinley v. Hudspeth, 120 F.2d 523 (10th Cir

al ca hw eb bee as obo wos 9

McMann v. Richardson, 397 US. 759(1970) ......... 5,6, 8

Morales - Guarjardo v. United States, 440 F.2d 775

I icc bethnu ieee uc 7

North Carolina v. Alford, 400 U.S. 25(1970) .......... 6

North Carolina v. Pearce, 395 US. 711(1969) ......... 3

Parker v. North Carolina, 397 US. 790(1970) ......... 6

Redwine v. Zuckert, 317 F.2d 336 (D.C. Cir. 1963) ...... 7

Smith v. United States, 359 F.2d 481 (8th Cir. 1966)... .. 6

State v. Baldwin, 226 N.C. 295 (1945) .............. 8

Tollett v. Henderson, 411 U.S. 258 (1973) ............ >

United States v. Buonomo, 441 F.2d 922 (8th Cir.

ee ae is ec

United States v. Doyle, 348 F.2d 715 (2d Cir. 1965) ..... 5

United States v. Hoyland, 264 F.2d 346 (7th Cir.

. Page

United States v. Scott, 464 F.2d 832 (D.C. Cir. 1972)... ... 9

Wood v. Ross, 434 F.2d 297 (4th Cir. 1970) ............ 4

Other Authorities:

ee ee BPR es hs cc ecb nevi lbacveccsi le... 5

ge nc. AM eae I ee evans Fare em Vin ee &

a ee ee UE ee 8

{a

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

No. 72-1660

STANLEY BLACKLEDGE, Warden,

_ Central Prison, Raleigh, N.C. and

STATE OF NORTH CAROLINA,

Petitioners,

v.

JIMMY SETH PERRY,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR PETITIONERS

OPINION BELOW

The opinion of the United States Court of Appeals for

the Fourth Circuit filed April 10, 1973, is not reported,

and is printed as Appendix A in the petition for

certiorari.

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. §1254(1).

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QUESTIONS PRESENTED

I. Are former jeopardy and an _ unconstitutional

“chilling effect” non-jurisdictional defenses which are

waived by a voluntary and intelligent plea of guilty?

II. Must a defendant be specifically advised that a

guilty plea waives his right to contest double jeopardy

and must this appear of record?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Constitution, Article V:

“No person ... shall ... be subject for the same

offense to be twice put in jeopardy of life and

limb.”

U.S. Constitution, Article XIV:

“No State ... shall ... deprive any person of life,

liberty or property, without due process of law.”

N.C.G.S. 15-177:

Appeal” from justice, trial de novo.—The accused

may appeal from the sentence of the justice to the

superior court of the county. On such appeal being

prayed, the justice shall recognize both the prosecu-

tor and the accused, and all the material witnesses,

to appear at the next term of the court, in such

sums as he shall think proper; and he may require

the accused to give sureties for his appearance as

aforesaid. In all cases of appeal, the trial shall be

anew, without prejudice from the former pro-

ceedings.

N.C.G.S. 15-177.1:

Appeal from justice of the peace or inferior court;

trial anew or de novo.—In all cases of appeal to the

superior court in a criminal action from a justice of

the peace or other inferior court, the defendant shall

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be entitled to a trial anew and de novo by a jury,

without prejudice from the former proceedings of _

the court below, irrespective of the plea entered or

the judgment pronounced thereon. .

STATEMENT OF THE CASE

In August 1969, Jimmy Seth Perry was convicted in

the District Court of Northampton County, North

Carolina, on a warrant charging him with the mis-

demeanor of assault with a deadly weapon. He received a

sentence of six months imprisonment. This was to be

served after a sentence of 5 to 7 years for uttering a

forged instrument which had been imposed in August of

1968 in a different court; and which sentence actually

began in January 1969. Perry appealed the assault

conviction to the Superior Court and received a trial de

novo.. However, during the interim between appeal and

trial de novo, the solicitor obtained an indictment

charging him with a higher and felonious degree of the

crime and it was this on which he was tried rather than

the warrant. In October 1969, he pleaded guilty and

received 5 to 7 years to be served concurrently. The

transcript of plea is Appendix B in the petition for

certiorari. As the uttering sentence began January 15,

1969, and this assault sentence began on October 29, this

was, in effect, an additional sentence of about 9 months

and 14 days or about 3 months and 14 days over the

sentence of six months given for assault in the District

Court.!

' The District Court noted that the sentence could be viewed as

giving an additional term of about 17 months since under North

Carolina law at that time petitioner received no credit for pretrial

custody on, or custody pending appeal of his uttering conviction.

This was later required as a matter of constitutional law by the

Fourth Circuit as to appeal custody time, Cole v. North Carolina,

419 F.2d 127 (4th Cir. 1969), based on North Carolina v. Pearce,

395 US. 711 (1969); and subsequent District Court decisions in

North Carolina applied this to pretrial custody, witich the 4th Cir-

4

Petitioner, after exhausting state remedies, ‘filed for a

writ of habeas corpus which was allowed by Honorable

John D. Larkins, Judge, United States District-Court,

Eastern District of North Carolina. The decision of Judge

Larkins is attached as Appendix C [to the petition for

certiorari]. He found that the indictment of petitioner

for the higher offense pending trial de novo was double

jeopardy, relying on Wood v. Ross, 434 F.2d 297 (4th

Cir. 1970); that the first trial constituting a binding

election and the second a chilling of the right to appeal;

and that double jeopardy could not be waived, it going to

the power to retry Perry. On appeal this was affirmed by

the United States Court of Appeals for the Fourth Circuit

without discussion.

ARGUMENT

I.

FORMER JEOPARDY IS A DEFENSE WHICH IS

WAIVED BY A VALID PLEA OF GUILTY. THE

SAME IS TRUE OF A DUE PROCESS CLAUSE

VIOLATION WHICH ARISES BECAUSE OF A

CHILLING EFFECT ON THE RIGHT TO TRIAL BY

JURY.

In this case, Jimmy Seth Perry entered a plea of guilty

in the Superior Court to assault with a deadly weapon

with intent to kill resulting in serious bodily injury, a

felony.. This plea occurred at a trial de novo on the

assault after Perry had first been tried and convicted in

the state District Court of a misdemeanor assault encom-

passed by the felony charge. The United States District

Court held that this entitled him to relief because it

unconstitutionally burdened his right to a jury trial, and

because it was double jeopardy (Pet. Cert. pp. 12-20).

This was incorrect because the legal effect of the plea was

cuit ultimately endorsed, Ham v. North Carolina, 471 F.2d 406

(4th Cir. 1973). He received this additional credit on his- uttering

charge by virtue of the order of this case, thereby advancing his

sentence beginning date on the uttering conviction so as to create

this 17 month interim.

_

=,

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to make the conviction binding upon him and to preclude

a constitutional attack on the conviction unless the plea

was coerced by illegality to the extent that his will was

overborne, or unless the plea was entered because of

incompetent advice by his counsel, McMann v. Richard-

son, 397 U.S. 759 (1970). Neither Perry nor his counsel

alleged either of these in seeking his release by way of

habeas corpus, but instead alleged independent constitu-

tional violations without attacking the plea itself.

A violation of the right against double jeopardy is not

excepted from the McMann holding. When such a

violation occurs, it can be used by an accused as a basis

for “‘a plea of discharge or release that gives a reason why

an accused ought not answer to the indictment and ought

not be put on trial for the crime alleged”, 22 C.J.S. p.

1241. Therefore, it is similar to a motion to quash

because of racial discrimination in the jury, a matter

which is waived by a valid guilty plea, Tollett v.

Henderson, 411 U.S. 258 (1973); it is similar to a motion

to quash for lack of a speedy trial, also a waivable matter,

Fowler v. United States, 391 F.2d 276 (5th Cir. 1968);

United States v. Doyle, 348 F.2d 715 (2d Cir. 1965); and

it is similar to a statute of limitations, also waivable,

Forthoffer v. Swope, 103 F.2d 707 (9th Cir. 1938). As is

the case with a violation of these rights, and all other

constitutional and nonconstitutional rights, a double

jeopardy violation may or may not be oppressive; it may

or may not adversely affect the fact-finding process; it

may or may not figure in the decision to plead guilty.

Similarly, its waiver rests on the same basis as a waiver of

all other constitutional rights, ie., a feeling that the likely

results of a contest concerning it will not justify the

effort, McMann v. Richardson, supra. For these reasons, a

defense of double jeopardy is properly held to be waived

by a guilty plea.

6

The leading case on this point is Brady v. United

States, 24 F.2d 399 (8th Cir. 1928) in which the Court

held:

“The constitutional immunity from second jeopardy

is a personal privilege which the accused may waive.

(16 case cites omitted). The waiver may be express

or implied (4 case cites omitted). Ordinarily the

defense must be pleaded specially (5 case cites

omitted). Waiver will be implied where the accused

pleads not guilty and proceeds to trial, verdict and

judgment without raising the defense of former

jeopardy (16 case cites omitted). The defense

cannot be raised for the first time by motion in

arrest of judgment or by motion for a new trial or

on appeal (13 case cites omitted).” p. 405.

In accord, United States v. Hoyland, 264 F.2d 346 (7th

Cir. 1959); Smith v. United States, 359 F.2d 481 (8th

Cir. 1966); Kistner v. United States, 332 F.2d 978 (8th

Cir. 1964); Harris v. United States, 237 F.2d 274 (8th

Cir.“ 1956); Berg v. United States, 176 F.2d 122 (9th Cir.

1949); Cox. v. Kansas, 456 F.2d 1279 (10th Cir. 1972);

Cox v. Crouse, 376 F.2d 824 (10th Cir. 1967); Cabalero

v. Hudspeth, 144 F.2d 545 (10th Cir. 1940); Curtis v.

United States, 67 F.2d 943 (10th Cir. 1933).

A violation of the right to due process occurring

because of a “chilling effect” on the right to trial by a

jury is similarly not excepted from the McMann holding,

Brady v. United States, 397 U.S. 743 (1970), North

Carolina v. Alford, 400 U.S. 25 (1970), Parker v. North

Carolina, 397 U.S. 790 (1970). Accordingly, the decision

below should be reversed.

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A VALID WAIVER OF DOUBLE JEOPARDY IS

INFERRED DESPITE THE SILENCE OF THE

RECORD AS TO IT, PROVIDED THE RECORD

MEETS THE STANDARD SET OUT IN BOYKIN ».

ALABAMA, 395 US. 238 (1969)

In deciding that Perry was entitled to relief, the United

States District Court held alternatively that the waivable

right against double jeopardy “is the type of fundamental

right which cannot be waived by mere silence in the

record. It goes to the power of the court to try a person”.

Because nothing appeared in the record on this particular

matter, the court held for this reason also that double

jeopardy could not be waived. This is incorrect for the

constitutional requirement in this regard is not that a

particular matter be discussed of record, but only that

the record show that an. accused has an understanding of

what the plea connotes and of its consequences, Boykin

vy, Alabama, 395 U.S. 238 (1969). However, this does not

require that he have an understanding of every right

waived, Tollett v. Henderson, supra; or an understanding

of every consequence of his plea, Redwine v. Zuckert,

317 F.2d 336 (D.C. Cir. 1963), Morales - Guarjardo v.

United States, 440 F.2d 775 (Sth Cir. 1971), and

therefore it should not be required that the record reveal

that every right or consequence was explained to him in

order to meet the Boykin standard.

The transcript of Perry’s sworn statements taken prior

to the acceptance of his plea (Pet. Cert. pp. 9-10) shows

that the requirements of the Boykin case were met at

Perry’s trial. Under oath, he stated he_was able to hear

and understand the trial judge and was not under the

influence of alcohol or drugs. He swore he understood

the charge, that it had been explained to him; that he had

conferred with his lawyer; that he was ready for trial; and

had had time to subpoena his witnesses. He further stated

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he knew he could plead not guilty and be tried by a jury,

but that he was in fact guilty. Therefore, he pleaded

guilty and “freely, understandingly, and voluntarily”

instructed his lawyer to plead guilty. He stated that he

understood he could be sentenced to as much as 10 years

imprisonment. He also testified he was satisfied with his

lawyer’s services; no one had made any promise or threat

to induce his plea; and no one had violated his constitu-.

tional rights.

In the event that Boykin requirements were not met

by the above examination of Perry, however, this did not

automatically entitle him to have his sentence vacated

because of an alleged violation of a constitutional right.

He was still required to prove that his plea was void

because it was not in accordance with the McMann

requirements, ie., that his plea was not an act “done with

sufficient awareness of the relevant circumstances and

likely consequences”, Brady v. United States, 397 U.S.

743 (1970).

Lastly, since the validity of petitioner’s plea was not

challenged, the Boykin requirements are probably not

even applicable. Generally, it is held that a defense of

double jeopardy must be pleaded; ie., it is up to the

accused to put something in the record concerning it if he

desires to preserve the matter for review. Generally, this

should be done before a plea to the issue of guilt or

innocence, 22 C.J.S. 1242, FRCrP 12(b). This has been

described as appropriate by this Honorable Court, United

States v. Murdoch, 284 U.S. 141 (1931), and is the rule

in North Carolina, State v. Baldwin, 226 N.C. 295

(1945). For this reason, in addition to the numerous

cases previously cited holding that a guilty plea waives a

violation cf the double jeopardy clause, many cases hold

that the defense is waived if not raised during trial, even

if the plea is not guilty. Grogan v. United States, 394

F.2d 287 (Sth Cir. 1967); United States v. Buonomo, 441

F.2d 922 (8th Cir. 1971); Ferini v. United States, 340

9

F.2d 837 (8th Cir. 1965); Brady v. United States, 24

F.2d 399 (8th Cir. 1928); Haddad v. United States, 349

F.2d 511 (9th Cir. 1965); Levin v. United States, 5 F.2d

598 (9th Cir. 1925); Morlan v. United States, 230 F.2d

30 (10th Cir. 1956); McKinley v. Hudspeth, 120 F.2d

523 (10th Cir. 1941); Curtis v. United States, 67 F.2d

943 (10th Cir. 1933); United States v. Scott, 464 F.2d

832 (D.C. Cir. 1972). As stated in Haddad v. United

States, supra, at page 514:

“Formerly, double jeopardy was raised by the plea

of autrefois acquit or autrefois convict. Such special

pleas have been abolished by Rule 12 of the Federal

Rules of Criminal Procedure, but that rule also

provides that any defense capable of determination ~

without trial of the general issue may. be raised

before trial by motion, and that the failure to

present it constitutes a waiver of it. The court

however may grant relief for cause shown. Not only

cedure, Harris v. United States, 8th Cir. 1956, 237

F.2d 274.”

Accordingly, nothing else appearing, silence of the record

does operate as the waiver of any defense of former

jeopardy; and the decision below should be reversed.

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CONCLUSION

For the reasons above, the judgments below should be

set aside and the case remanded for a dismissal of the

claims adjudicated by the courts below, and this is the

relief prayed for.

This 28th day of November, 1973.

ROBERT MORGAN

Attorney General of

North Carolina

RICHARD N. LEAGUE

Assistant Attorney General

Post Office Box 629

Raleigh, North Carolina 27602

Telephone: (919) 829-7188

Counsel for Petitioners

11

CERTIFICATE OF SERVICE

I hereby certify that I have served the foregoing Brief

for Petitioners by placing three copies in the United

States Mail at Raleigh, North Carolina, postage prepaid,

addressed to James Keenan of the firm of Keenan, Paul

and Rowan at 811 West Main Street in Durham, North

Carolina, on the 28th day of November, 1973.

Richard N. League

Assistant Attorney General