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February 25, 1975

J. EDWIN LA VALLEE, Superintendent, Clinton State Correctional Facility, Dannemora, New York, Respondent

The opinion of the court was delivered by: DUFFY


 The petitioner, a state prisoner presently incarcerated in the Auburn Correctional Facility, makes application pursuant to Title 28, United States Code, Section 2254, for a writ of habeas corpus in order to secure a new trial, or, in the alternative, an evidentiary hearing, relating to the involuntary nature of his plea of guilty to the crimes of rape in the first degree and robbery in the first degree, in Supreme Court, New York County, for which he was sentenced on June 6, 1969, to two concurrent indeterminate terms of five to fifteen years imprisonment.

 I find that petitioner has complied with the requirement of 28 U.S.C. § 2254(b) that he first exhaust state court remedies before presenting his claims to the federal courts.

 His initial appeal, limited to the issue of his right to a competency hearing at the time of sentencing, was denied by the Appellate Division, People v. Suggs, 35 App. Div.2d 781, 314 N.Y.S.2d 981 (1st Dept. 1970), with leave to appeal to the New York Court of Appeals denied on November 6, 1970.

 He also filed an application for a writ of error coram nobis in Supreme Court, New York County, again raising the issue of his right to a competency hearing at the time of sentencing. This petition was denied in August 1970, and no appeal was taken therefrom.

 Shortly after the institution of this habeas petition, counsel was assigned by this Court and the Court suspended consideration on the merits until such time as petitioner returned to the state courts to exhaust on the issue of the sentencing court's failure to afford the colloquy on voluntariness mandated by Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969).

 Accordingly, petitioner filed a motion to vacate the judgment in Supreme Court, New York County, which was denied on December 6, 1973, with leave to appeal to the Appellate Division denied on March 5, 1974.

 Thus, there has now been a proper exhaustion of state court remedies, 28 U.S.C. § 2254(b); both procedurally, Fay v. Noia, 372 U.S. 391, 9 L. Ed. 2d 837, 83 S. Ct. 822 (1963); Brown v. Allen, 344 U.S. 443, 97 L. Ed. 469, 73 S. Ct. 397 (1953); and as to the specific subject matter raised in the petition, Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971); United States ex rel. Nelson v. Zelker, 465 F.2d 1121 (2d Cir.), cert. denied, 409 U.S. 1045, 34 L. Ed. 2d 497, 93 S. Ct. 544 (1972).

 The basic question presented is whether petitioner was deprived of due process of law by virtue of the sentencing court's failure to inquire into the voluntariness of his original guilty plea, in light of his having been found incompetent immediately after his initial plea.

 Petitioner was originally charged in an eighteen count indictment with various counts of rape in the first degree, sodomy in the first degree, robbery in the first degree, and possession of a weapon. A second indictment charged him with additional counts of robbery.

 In spite of his relative youth (age 17) and lack of a prior criminal record, he was denied Youthful Offender Status on August 1, 1969, and appeared in Supreme Court, New York County, on September 13, 1968, in order to plead to the indictment. Petitioner, represented by the Legal Aid Society, withdrew his prior plea of not guilty and offered to plead guilty to one count of rape, first degree, and one count of robbery, first degree, in full satisfaction of the indictments. The prosecution recommended acceptance of the proffered plea.

 Before accepting the plea, the court entered into a colloquy with petitioner as to his understanding of the plea, and as to whether or not there was a factual basis for the plea. During the course of this colloquy, petitioner responded affirmatively when asked whether he had heard the facts of the crimes as related by the District Attorney and he admitted them. He also stated that he had consulted with his attorney. The court at that time asked him whether his guilty plea was voluntary and whether threats or promises were made to induce him to plead. He responded appropriately.

 It is to be noted, however, that the court on that occasion made no inquiry whatsoever into whether petitioner understood what specific constitutional rights he would be waiving by pleading guilty. Moreover, there is no indication whatever on the face of the plea minutes that petitioner was ever informed of the potential maximum sentence which might be imposed upon his guilty plea, or of the possibility that he would have to serve a minimum sentence before being eligible for parole. However, in light of this Court's disposition, infra, it is unnecessary to rule upon whether petitioner fully understood the consequences of the plea at that time.

 Upon satisfying itself as to the plea's voluntariness, the court thereupon began to inquire into whether petitioner felt any remorse for his acts. After engaging in a bizarre colloquy, reproduced in the Appendix, infra, the court sua sponte, with the consent of petitioner's counsel, ordered him to Bellevue Psychiatric Hospital for a psychiatric examination and report, pursuant to Sec. 658, et seq., of the then-Code of Criminal Procedure (now Article 730, Criminal Procedure Law).

 However, the court still accepted petitioner's guilty plea and set October 31, 1968, for sentencing.

 Petitioner was committed forthwith to Bellevue and a report to the court was completed on October 21, 1968. The report revealed that petitioner had a long history of behavior problems, including residence at Wiltwyck Treatment Center and Hampton State Training School, and that "His history of behavior reveals that he has characteristically reacted to feelings of persecution by retaliation." Diagnosing petitioner as suffering from "Schizophrenia, Paranoid Type", the two qualified psychiatrists who examined him found him to be "in such a state of insanity as to be incapable of understanding the charge, proceedings or making his defense." Cf., Sec. 658, C.C.P.

 Pursuant to Sec. 662-b, C.C.P., the court, after a hearing, found petitioner incompetent to stand trial and committed him to the custody of the Commissioner of Mental Hygiene on November 6, 1968. On November 15, 1968, petitioner was committed to Matteawan State Hospital.

 On April 4, 1969, the Superintendent of Matteawan filed a report with the court, certifying that petitioner was "no longer in such a state of idiocy, imbecility or insanity as to be incapable of understanding the charge against him or making his defense thereto." The Superintendent's report, containing a history of petitioner's psychiatric background and progress, diagnosed his condition as Psychosis with Antisocial Personality, Paranoid and Reactive Features. The report stated that at a recent staff presentation, petitioner was attentive and cooperative and was able to give a coherent and relevant account of the events leading to his arrest.

 Upon the basis of that report alone petitioner was certified as competent on April 9, 1969, and he was thereupon returned to court for sentencing.

 On June 6, 1969, petitioner appeared with newly appointed counsel for sentencing. Upon being asked by the court whether there was any legal cause why judgment should not be pronounced at that time, petitioner replied that at the time of his original plea, he wasn't capable of understanding the case.

 The court then reiterated to petitioner that it had previously adjourned the sentencing in order to give petitioner's counsel an opportunity to make any applications he deemed advisable with regard to withdrawing his plea. The court reminded petitioner that his attorney had informed the court earlier that week that petitioner did not wish to withdraw his plea. The court then inquired of defendant personally, whether he wished to withdraw his plea or proceed with sentencing. Petitioner asked to be sentenced and indicated that he specifically did not wish to withdraw his plea. Thereupon, making no further inquiry into the voluntariness or factual basis for the plea, the court sentenced petitioner to a term of five to fifteen years.

 Petitioner argues that under the circumstances of the present case, the fact that his initial guilty plea was entered at a time when he was incompetent voids the actual plea and all proceedings relating thereto under the rule of Pate v. Robinson, 383 U.S. 375, 15 L. Ed. 2d 815, 86 S. Ct. 836 (1966) and McCarthy v. United States, 394 U.S. 459, 22 L. Ed. 2d 418, 89 S. Ct. 1166 (1969), and that, furthermore, the actual sentencing was improper because no inquiry was made as to whether petitioner's previous void plea (or his decision not to move to withdraw it) was voluntary, as required by Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969), decided just four days before sentence was imposed.

 Such an argument is indeed substantial, and under the exigent circumstances of this case, I am constrained to sustain these contentions. Westbrook v. Arizona, 384 U.S. 150, 86 S. Ct. 1320, 16 L. Ed. 2d 429 (1966).

 It is clear that the conviction of a defendant while he is legally incompetent violates due process. Drope v. Missouri, 420 U.S. 162, 95 S. Ct. 896, 43 L. Ed. 2d 103; Pate v. Robinson, supra ; Bishop v. United States, 350 U.S. 961, 100 L. Ed. 835, 76 S. Ct. 440 (1956). Similarly, it is equally clear that in order for a guilty plea to be valid, such a plea must be knowing and voluntary. Kercheval v. United States, 274 U.S. 220, 47 S. Ct. 582, 71 L. Ed. 1009 ...

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