The opinion of the court was delivered by: CURTIN
Petitioner Joseph A. Williams was originally arraigned on the charge of criminal possession of a dangerous drug in the fourth degree (former section 220.15 of the New York State Penal Law), a class D felony, in Supreme Court, Erie County, on May 4, 1973. He was represented at the arraignment by William Sims, Esq. On June 6, 1973, Julio Garcia, Esq., was assigned to represent petitioner on the pending drug charge. Plea negotiations ensued. On June 22, 1973, petitioner appeared with his counsel in Supreme Court before the Honorable Frederick M. Marshall to withdraw his not-guilty plea and to enter a plea of guilty to the charge of criminal possession of a dangerous drug in the fifth degree (former section 220.10 of the New York State Penal Law), a class E felony. Before accepting petitioner's guilty plea, Justice Marshall established on the record a factual basis for the guilty plea. Petitioner acknowledged that on July 26, 1972, he had knowingly and unlawfully possessed a narcotic drug consisting of a certain quantity of cocaine. He stated that he had discussed all aspects of the case with his attorney. He indicated that he realized he waived his right to a jury trial by pleading guilty. He also stated that he had received no promises as to the sentence which Justice Marshall might impose. Justice Marshall informed petitioner that the maximum penalty for a conviction on the charge of criminal possession of a dangerous drug in the fifth degree was up to four years in a State institution. Justice Marshall then set sentencing for July 16, 1973, and indicated that he would order a probation investigation of petitioner's background.
Upon learning that petitioner had been convicted and sentenced to terms of imprisonment on a number of occasions, Justice Marshall ordered on August 6, 1973, that a hearing be held pursuant to § 400.20 of the Criminal Procedure Law and § 70.10 of the Penal Law to determine whether or not petitioner should be subjected to extended incarceration and lifetime supervision as a persistent felony offender. The date for this hearing was originally set as September 4, 1973. Under the applicable provisions of the Penal Law, Justice Marshall was vested with the authority to sentence one determined to be a persistent felony offender to a minimum sentence of 15 years to life in prison.
Recognizing the severity of the sentence which his client faced, petitioner's counsel requested a copy of the pre-sentence investigation report on August 17, 1973. On September 4, 1973, defense counsel's motion for an order for a complete physical examination of petitioner was granted by Justice Marshall. Sentencing was thereafter adjourned to September 21, 1973, at which time petitioner and his counsel, Mr. Garcia, again appeared before Justice Marshall.
At the sentencing proceeding, petitioner did not contest the accuracy of his prior record of convictions that was before the Court. Petitioner's counsel stated that petitioner had no claim that any of his prior convictions were obtained as a result of any deprivations of constitutional rights. Referring to the medical report that was before the Court, petitioner's counsel urged Justice Marshall to impose the normal four-year sentence for the crime to which petitioner pleaded guilty. However, Justice Marshall then found petitioner to be a persistent felony offender and sentenced him to an indeterminate sentence of imprisonment with a maximum term of life and a minimum term of 15 years.
In his appeal, petitioner claimed that his conviction was void because the trial court had failed to fully advise him of the possible consequences of his plea at the time it was entered. He based his claim on the fact that Justice Marshall had told him that the maximum term of imprisonment for the charge to which he was pleading guilty was four years without advising him that he faced classification as a persistent felony offender which would carry a considerably enhanced sentence. The Appellate Division, Fourth Department, rejected petitioner's claim and found that petitioner had been put on notice by the court of the possibility of his being classified as a persistent felony offender prior to the actual sentencing. In its decision, the Appellate Division noted that petitioner had acknowledged that he was subject to an extended sentence and that he had made no effort to vacate or withdraw his plea. That Court then concluded "under such circumstances it is clear that when defendant appeared for sentencing he was not relying on the representation made by the court when his plea was taken as to the maximum sentence that could be imposed by the court." People v. Williams, 47 A.D.2d 989, 366 N.Y.S. 2d 713, 714 (4th Dep't 1975). On June 18, 1975, leave to appeal to the New York State Court of Appeals was denied by order of the Honorable Mathew Jasen.
After he had exhausted his state court remedies as required by 28 U.S.C.- § 2254(b), petitioner then filed an application for writ of habeas corpus with this court on January 26, 1976. On October 7, 1976, Michael Davidson, Esq., was appointed to represent petitioner, and an amended petition was filed on October 27, 1976. Briefs were subsequently filed by both sides, and a hearing was held on July 21, 1977. At the hearing, petitioner testified and also called his former attorney, Julio Garcia, and former Assistant District Attorney William Worthington. On January 19, 1978, Michael Davidson was relieved as counsel of record and Philip Halpern was assigned to represent petitioner in all future proceedings in this matter.
In his application to this court, petitioner urges that because the trial judge misinformed him about the possible maximum sentence to which he might be subjected just prior to his entering his guilty plea, that plea was entered without full appreciation of its possible consequences and should be declared constitutionally invalid under the standards which require that a guilty plea be entered in a voluntary, knowing, and intelligent manner. See Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969); Machibroda v. United States, 368 U.S. 487, 7 L. Ed. 2d 473, 82 S. Ct. 510 (1962); Saddler v. United States, 531 F.2d 83 (2d Cir. 1976).
It is well established that the trial judge is responsible for assuring that the accused has a full understanding of what his guilty plea connotes and of its consequences. Boykin v. Alabama, supra at 244. Information concerning the maximum possible sentence to which an accused may be subjected is a "consequence" of a plea. See Jones v. United States, 440 F.2d 466 (2d Cir. 1971). In this circuit, the two-pronged test for determining the constitutional validity of a state court guilty plea in the event of sentencing misinformation is (1) whether the defendant was aware of actual sentencing possibilities, and, if not, (2) whether accurate information would have made any difference in his decision to enter a guilty plea. Caputo v. Henderson, 541 F.2d 979, 984 (2d Cir. 1976).
At petitioner's request, an evidentiary hearing was held to enable the court to make the factual determinations required by Caputo v. Henderson. My review of the trial court proceedings and the testimony offered in this court leads me to conclude that petitioner would not have altered his plea, even if he had been aware of the possible enhanced sentence he faced as a persistent felony offender, and that his plea was thus voluntary as a matter of fact.
There is no doubt that the state trial court initially provided petitioner with inaccurate information concerning the possible maximum sentence he faced based on his guilty plea. As recounted above, Justice Marshall first advised petitioner that the maximum penalty he faced was up to four years in a state institution. See Transcript of Plea Proceeding of June 22, 1973, at p. 3.
The first question addressed at the evidentiary hearing in this court was whether or not the petitioner was aware of the actual sentencing possibilities at the time he entered his guilty plea. William Worthington, who is now a private attorney but who was an Assistant District Attorney at the time that petitioner was originally charged with possession of cocaine in 1973, testified that he had not discussed with Mr. Garcia the possibility that petitioner might be sentenced as a persistent felony offender because he was not aware at that time that petitioner had a record of prior felony convictions.
Mr. Garcia, who testified candidly throughout the hearing, stated that he had never discussed petitioner's prior record with petitioner during the course of plea negotiations. He was unaware of the possibility that petitioner might be sentenced as a persistent felony offender and was thus unable to advise his client accordingly. Mr. Garcia indicated that he had been counsel of record in only four or five criminal cases prior to his representation of petitioner and that petitioner's case was the first one which he had handled in which the persistent felony offender statute became an issue, although he did testify that he had some familiarity with the second felony offender statute.
Petitioner confirmed that he had not brought his prior record of convictions to Mr. Garcia's attention prior to the plea proceeding. He also testified that, at the time of the plea proceeding, he was not familiar with the persistent felony offender statute and that he had relied on Justice Marshall's representation that the maximum sentence which he would receive in exchange for his guilty plea was four years incarceration.
There is nothing in the record to indicate that Justice Marshall realized that petitioner might face sentencing as a persistent felony offender when he accepted petitioner's guilty plea. Petitioner's prior record of arrests and convictions was apparently before the court at the time of petitioner's arraignment. However, another judge presided at that proceeding. It was not until he received the pre-sentence report from the probation department that Justice Marshall became aware of the persistent felony offender problem. On August 6, 1973, Justice Marshall entered the order scheduling a hearing for September 4, 1973, to determine whether or not petitioner should be "subjected to extended incarceration and lifetime supervision" as a ...