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June 13, 1966

UNITED STATES of America ex rel. Almars ELKSNIS, Petitioner,
Honorable A. P. GILLIGAN, Acting Warden of Green Haven Prison, Stormville, New York, Respondent

Weinfeld, District Judge.

The opinion of the court was delivered by: WEINFELD

WEINFELD, District Judge.

Petitioner, now serving a sentence of from seventeen and one-half to thirty-five years under a judgment of conviction entered in the County Court, Westchester County, on his plea of guilty to manslaughter in the first degree, seeks his release under a writ of habeas corpus.

 He advances four grounds in support of his application, two of which do not present any issue of violation of federal constitutional rights, *fn1" and one of which, while alleging deprivation of his right to counsel, upon the facts is without merit. *fn2" Thus, there remains to be considered his claim that he was denied due process of law in violation of the Fourteenth Amendment in that his plea of guilty was induced by a promise by the sentencing judge that the sentence would not exceed ten years, a promise that was not kept. The facts upon which this claim is here presented were urged by petitioner upon the state courts in support of a writ of error coram nobis to vacate the judgment of conviction. After an evidentiary hearing the application was denied; *fn3" the denial was affirmed without opinion by the Appellate Division, *fn4" and leave to appeal was denied. Thus petitioner has exhausted available state remedies and is properly before this court. *fn5"

 The case is unusual in that the primary and basic fact - that the sentencing judge, prior to the entry of a plea of guilty, promised petitioner and his counsel that the sentence to be imposed would not exceed ten years - is not in dispute. The judge acknowledged that he made such a "commitment," the coram nobis judge so found, and the record permits no other finding. However, the coram nobis court made other findings - that the commitment was made upon an assumption that petitioner was a first felony offender; that when the judge learned otherwise at the time of sentence he "made it clear to the petitioner and his attorney that his promise was no longer binding and was withdrawn * * *. [They] understood the reason for the withdrawal of the promise and accepted it * * *." Implicit in this last finding is a determination that petitioner not only waived his right under state law to apply for vacatur of the guilty plea, either as a matter of discretion *fn6" or of absolute right because it was the result of inducement, *fn7" but also knowingly and intionally waived any federal constitutional claim of denial of due process.

 Following argument by counsel, this court, upon a review of the coram nobis record, concluded that material facts relating to the crucial finding of waiver had not been fully explored and that the transcript of the sentence proceeding furnished scant evidential support therefor. The only evidence to uphold the finding was the judge's version of an off the record "discussion between counsel and the Court," as to which the defendant's attorney differed. Since a third party, an Assistant District Attorney, was present at this sidebar conference, this court directed a further evidentiary hearing; however, the Assistant had no recollection that he participated in the discussion.

 In addition, the finding that the sentencing judge acted upon an assumption that the petitioner was a first felony offender appeared to rest on tenuous evidence, which was further brought into question by an official documentary exhibit. *fn8" Accordingly, a second hearing was held at which additional evidence was received from the sentencing judge. Thus, the disposition made herein rests upon the state record as supplemented by the evidentiary hearings before this court, which afforded an opportunity for demeanor appraisal of a prime, if not the prime, participant in significant events.

 The record here presents two interrelated issues under the claim of denial of due process. One is whether the plea of guilty entered upon the prior promise of the judge that the sentence to be imposed would not exceed ten years was voluntary, and two, even assuming that such a guilty plea may ever be deemed voluntary, whether, when the judge withdrew his promise he was required to reinstate petitioner's original plea of not guilty.

 Petitioner, a native of Latvia, was admitted to the United States in 1949 under the Displaced Persons Act. *fn9" He was then eighteen years of age.

 On June 23, 1955 he was arrested in connection with the death of his common law wife, which occurred during an altercation when she was stabbed with a four-inch knife which petitioner had wrested from her after she allegedly had attempted to attack him, first with a hammer and then with the knife. The next day he was brought before a police magistrate upon a sworn complaint, charging him with manslaughter in the first degree in that he had stabbed his wife "without a design to effect death * * *." During this preliminary proceeding he was not represented, although the record indicates he was offered but declined counsel. He was bound over for grand jury action.

 On July 8, 1955 the grand jury returned an indictment for murder in the second degree, charging him "with a design to effect" his wife's death. Upon arraignment in the County Court on July 13 he pleaded not guilty. He was then still without counsel, but was advised that one would be assigned. However, private counsel was retained sometime in September, and after several conferences with the District Attorney a proposal was advanced that defendant plead to a reduced charge, manslaughter in the first degree.

 Previously, in November 1953, while serving in the United States Army, the petitioner had pleaded guilty to an assault charge and a sentence of ten months had been imposed. *fn10" Thus, a plea of guilty to a manslaughter charge meant that petitioner faced deportation, since it could be contended, as it subsequently was, that his two convictions involved moral turpitude. *fn11"

 On December 9, 1955, before entering the plea, petitioner's counsel, with the defendant present, conferred with the judge in chambers, and, as the judge himself testified at the coram nobis hearing, the attorney "mentioned * * * that this man was likely to be deported, and that the ends of justice could therefore be served by giving him a sentence of not more than ten years * * *." The judge acknowledged that he did commit himself to such a maximum sentence. He not only so testified, but swore in an affidavit submitted in the coram nobis proceeding that he assured the attorney and the defendant that "if he would plead guilty to the crime of Manslaughter in the First Degree, that I would sentence him to a term not to exceed ten (10) years in State Prison."

 Soon after the chambers conference the defendant withdrew his plea of not guilty and pleaded guilty to manslaughter in the first degree. Sentence was deferred to December 29, when the District Attorney filed an information charging the defendant as a second felony offender in that he had been previously convicted of assault, second degree. Defense counsel, based upon an official transcript which indicated the conviction was for assault in the third degree, a misdemeanor, challenged the accuracy of the information, whereupon the matter was put over to the following day. The next day, December 30, 1955, the prosecution again charged that defendant was a multiple offender, but this time presented a certified copy of the prior conviction. The judge then found as a matter of law that the prior conviction was a felony, and after an off the record "discussion between counsel and the Court" and a plea of mercy on behalf of the defendant, imposed a sentence of from seventeen and one-half to thirty-five years - contrary to his promise that the maximum term would be ten years.


 The court finds that the defendant's withdrawal of his original plea of not guilty and the entry of a plea of guilty was based upon the judge's promise that the sentence to be imposed would not exceed ten years. The defendant, in return for the judicial promise, gave up his right to have the state establish his guilt beyond a reasonable doubt on a jury trial. Deferring at this point consideration of whether the guilty plea was voluntary, nevertheless the imposition by the judge of a sentence contrary to his express promise is wholly irreconcilable with constitutional safeguards and due process of law. *fn12"

 Fundamental fairness, as a concept of due process of law, requires when an accused has entered a plea of guilty based upon a promise by a judge who thereafter, whatever the reason, fails to adhere to his promise, that the judge, on his own motion, reinstate the not guilty plea and reinvest the defendant with the fundamental rights accorded him under our accusatory system of justice. *fn13" Of course, an accused so restored to his original position may well decide to plead guilty again, *fn14" but this must be a matter of his own free will and reasoned choice.

 No matter how the facts of the instant case are viewed, it is beyond challenge that at the very least there was misunderstanding and confusion as to the prior conviction. In this circumstance alone, ordinary fairness required that the defendant be restored to his original position. *fn15" Indeed, it has been held that even where no specific promise was made, and a guilty plea was entered as a result of a "grave misunderstanding" solely on the part of defense counsel and not participated in by either the prosecution or the judge, the interests of justice required that the defendants be relieved of their pleas and the judgments of conviction vacated. *fn16"

 The state, however, urges that the judge was released from his promise because it was made upon an assumption that the defendant was a first felony offender. It argues further that whatever constitutional claim arose in petitioner's favor by reason of the unfulfilled promise was waived when petitioner acquiesced in the judge's renunciation of his commitment. This court is of the view that any assumption which may have grounded the judge's promise is irrelevant on the issue of his duty to have vacated the guilty plea when he no longer deemed himself bound; moreover, the facts do not support the claim that he acted without knowledge of the defendant's criminal background. Four factors, one of them documentary, point in the opposite direction.

 First, the judge and defense counsel are in accord that the defendant's likely deportation was discussed at the conference preceding the entry of the guilty plea, but they differ as to whether his prior record was mentioned. Since deportation could have been effected only in the event of his conviction of two crimes involving moral turpitude, it is obvious that, for deportation to have been the subject of discussion, petitioner must already have had a criminal record apart from the conviction that would follow upon a plea of guilty to the pending charge. Thus strong support is given to defense counsel's testimony that he "spelled out" the facts of defendant's prior record for the judge. While it is true the attorney was contending that the conviction was for assault in the third degree, a misdemeanor, nonetheless the discussion of deportation brought home knowledge that defendant's past was not without some criminal taint.

 Next, on December 9, when upon the entry of the guilty plea the defendant's pedigree was taken, he acknowledged before the judge in open court a conviction for assault, although he, too, stated it was in the third degree. While the judge testified that he had no recollection of the incident, he did not deny that he must have heard the defendant's answer and that he knew or should have known of his prior record.

 Third, as to the felony aspect of defendant's prior record, it is of substantial significance that the Assistant District Attorney in charge of the matter testified that petitioner's counsel was insistent that the prior conviction was a misdemeanor; that he viewed the matter otherwise and after checking into the records concluded that the assault conviction was a felony; that his recommendation of the plea of manslaughter in the first degree was on the basis that defendant was a second felony offender. The plea was entered three weeks before the day of sentence and of alleged withdrawal of the promise. When the Assistant was taxed, "The fact that he [defendant] was a second felony offender did not become a fact until December 30th, the day of sentence," he reiterated what he had testified to twice previously, "No, it became a fact before. He did not plead as a first offender; he pleaded as a second offender."

 Finally, New York law provides that when a plea of guilty to a lesser offense than that charged is accepted by the court, the District Attorney must submit to the court a written statement setting forth his reasons for recommending the lesser plea, and that the court shall file the statement so that it becomes a public record. *fn17" The reduced plea certificate in the instant case, dated the very day the plea was taken, three weeks before the withdrawal of the promise, states, among other matters: "Defendant had a prior conviction for Assault in the Second Degree." However, the sentencing judge testified he never saw the certificate.

 Considering that the deportation of petitioner necessarily meant he had a prior record, that he had so acknowledged in open court, albeit contending it was a misdemeanor, that the Assistant District Attorney's recommendation of a reduced plea was based on the fact defendant was a second felony offender, and that the reduced plea certificate specified the felony conviction, the court finds that the promise of a maximum sentence of ten years was not made on the basis of any assumption that the defendant was a first felony offender or without any prior criminal record.

 We next consider the state's claim of waiver, resting upon the coram nobis court's finding that the judge acquainted the petitioner and his counsel of the withdrawal of his promise; that they acquiesced therein, and that thereby the defendant waived any federal constitutional due process claim based upon the unfulfilled promise. The state court's finding of waiver does not, however, bar independent consideration of the question. *fn18"

 The sufficiency of evidence to sustain the finding must be tested against the controlling standard that a waiver is "an intentional relinquishment or abandonment of a known right or privilege," *fn19" and its corollary that the courts "'indulge every reasonable presumption against waiver' of fundamental constitutional rights * * *." *fn20" And whether an intelligent waiver has been made depends upon the particular facts and circumstances of each case, including "the background, experience and general conduct of the accused * * *." *fn21"

 The transcript of the sentencing proceeding is barren of any statement by the judge of his withdrawal of his commitment or that it was based upon any assumption as to lack of prior criminal record; it is also barren of any indication that defendant or his counsel acquiesced in the withdrawal. What is relied upon to fill the void is the off the record "discussion between counsel and the Court." Defense counsel testified that it related solely to his continued challenge to the accuracy of the certified copy of the defendant's prior conviction for a felony. As to this aspect the judge's version is no different. However, when asked whether at the sidebar conference he told the lawyer he was withdrawing his commitment, he further testified, "Whether it was done in formal language, I am unable to say but I can say that I did state to him that this puts an entirely different light on this picture." At the hearing conducted by this court the judge added that he urged defense counsel to take the matter off the calendar so that counsel could review further his ...

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