The opinion of the court was delivered by: CURTIN
Petitioner, a state prisoner confined to Attica Prison, made a "pro se" application for a writ of habeas corpus to this court, claiming he is in custody in violation of his constitutional rights. By order of this court dated April 8, 1968, the respondent was directed to produce the record of conviction and sentence and the record of an application for a writ of coram nobis.
A review of the record indicates that Charles Scott was indicted by an Erie County Grand Jury on November 30, 1962, charged with the crime of manslaughter in the first degree. Before indictment a preliminary hearing was held before Judge William G. Heffron in the Buffalo City Court. The defendant was represented throughout by his retained attorney, Herald P. Fahringer, who continued as his attorney in his subsequent conviction and plea.
On March 13, 1963 the defendant and his lawyer appeared before Erie County Court Judge Frederick M. Marshall. At that time he withdrew his former plea of not guilty and entered a plea of guilty to a reduced charge of manslaughter, second degree. When he appeared for sentencing on April 1, 1963 with his attorney, he pleaded guilty to an information charging him as a second felony offender pursuant to New York Penal Law Section 1941, McKinney's Consol. Laws c. 40. This information was based upon a conviction on a plea of guilty to murder in the second degree in the District of Columbia on January 27, 1942. He was sentenced to a term of 15 years to life. In 1962 he was on parole after serving time on this conviction.
The defendant then applied to the court to withdraw his former plea of guilty to the crime of manslaughter in the second degree. This request was denied by Judge Marshall, and defendant was sentenced to a term of 7 1/2 to 15 years in Attica. His appeal of the County Court Judge's order refusing to permit him to withdraw his guilty plea was affirmed by the Appellate Division and the Court of Appeals.
He made an application for a writ of coram nobis before Judge Marshall, which was denied without a hearing on September 21, 1966. This order was subsequently affirmed by the Appellate Division and leave to appeal to the Court of Appeals was denied. One of the grounds upon which he based his application for relief was that his guilty plea was induced by misrepresentations of his defense counsel about the sentence which the court would impose.
The petitioner has exhausted his available state remedies as required by Title 28, United States Code, Section 2254.
The basic constitutional issue raised here is whether or not petitioner's guilty plea was voluntarily entered. One of petitioner's claims is that the trial judge or the prosecuting attorney made promises regarding his sentence to his attorney which were not kept. The Court finds that there is no evidence to support this claim and it is rejected. Petitioner's other claim is that his retained counsel made misrepresentations to him concerning the sentence which the petitioner would receive if he pleaded guilty. The petitioner further alleges that he relied upon these misrepresentations in pleading guilty and, therefore, he argues that his plea was not voluntarily made.
A hearing was held on October 7, 1968 and the petitioner, his defense attorney, the Assistant District Attorney in charge of the file, and the County Court Judge testified.
On or about March 4, 1963, petitioner's attorney, the Assistant District Attorney and the trial judge met at the request of the defense counsel. They discussed the possibility of petitioner's pleading guilty to a reduced charge of manslaughter in the second degree. The defense attorney wanted the trial judge to suspend sentence and to have the defendant returned to Washington, D.C. as a parole violator. The trial judge stated that he would consider all the possibilities, but flatly refused to make any promises. He said that he would consider a suspended sentence if he could be assured that the defendant would be required to serve at least five years as a parole violator in Washington. His defense counsel called the District of Columbia Parole Office and received the impression that, if sentence was suspended and Scott returned to Washington, he would be required to serve at least five years. To confirm this, a letter dated March 13, 1963 was sent to the trial judge. The substance of this letter was that, if the petitioner were returned to Washington, D.C. as a parole violator, the Board of Parole would not consider any application for release until he had served at least two years. The letter continued:
"It would further appear to [the writer] that inasmuch as Scott is charged with additional violations notwithstanding the fact that he is now on trial for manslaughter First Degree there is little possibility that the Board entertain such a petition from Scott for at least a period of five years, and this, of course, does not mean that at that time our Board would act favorably upon his request."
On March 13, 1963, the day this letter was sent, and before the trial judge or the defense attorney had an opportunity to read it, the defendant appeared before the trial judge with his attorney and withdrew his earlier plea of not guilty to manslaughter in the first degree. He then pleaded guilty to manslaughter in the second degree.
Pursuant to Section 335-c of the New York Code of Criminal Procedure, the court warned the defendant of the possible effect of his prior conviction. Then the court said:
"Now, so that the record may have it clear, there have been some discussions with your attorney and the assistant district attorney relative to the fact that you, by your acts as alleged in this indictment and by your plea, it might amount to a violation of your parole in the State - in Washington, D.C. You are aware of that?"
To this, the petitioner responded affirmatively. The court, after confirming the petitioner's desire to spend time in Washington near his family, said:
"Your attorney has indicated to me that he's getting some correspondence from the correction or prison officials in Washington, D.C., which will indicate to the court what action they are going to take and he's going to submit that to me and after I have had this documentary evidence I will then have to make a determination as to whether or not I can send you back or whether you should go to Attica here in this state, are you aware of that?"
After the petitioner again responded affirmatively, the following colloquy occurred:
"THE COURT: In other words, I am not telling you now and I have not told your attorney or the assistant district attorney that you are under all conditions, under all circumstances going back to Washington, D.C. That might not happen.
THE COURT: You are aware of that?
THE COURT: It might well be, after reviewing the papers and probation investigation that I might feel that the interest of justice might be served by your being sentenced ...