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GUNN v. KUHLMAN

October 10, 1979

ARTHUR F. GUNN, Petitioner, against MR. KUHLMAN, Superintendent, Woodbourne Correctional Facility, Respondent.


The opinion of the court was delivered by: WEINFELD

Petitioner, now serving an indeterminate sentence of up to fifteen years imposed after his plea of guilty to attempted rape in the first degree entered in the Albany County Court, New York State, seeks his release by a federal writ of habeas corpus. He contends that the judgment of conviction is constitutionally void because (1) the trial judge refused to permit the withdrawal of his plea of guilty, and (2) he was denied effective assistance of counsel.

The crime to which the petitioner pled guilty occurred at approximately 3:00 o'clock on the morning of October 12, 1975 in a student dormitory at the State University of New York at Albany. The victim, Ms. Joanne Pichurko, swore in her complaint that she was awakened from sleep in her dormitory room by a male intruder who grabbed, threatened, and choked her, forcibly removed her undergarments, and over a period of several minutes repeatedly attempted to force her to submit to both sexual intercourse and sodomy. His efforts were unsuccessful only because the victim resisted despite her assailant's threats and his attempts to choke her. Eventually, she forced her way free and screamed, whereupon her partially clad assailant ran out of the room, down the corridor, and into the women's bathroom. The victim chased him down the hall and stood outside the bathroom screaming for assistance. Two male residents came to her aid and kept the perpetrator cornered in the bathroom until the police arrived.

 A grand jury returned an indictment charging petitioner with attempted rape in the first degree *fn1" and with burglary in the second degree, *fn2" "Class C" felonies, *fn3" each of which carries a maximum punishment of fifteen years imprisonment. *fn4" Gunn was arraigned on October 20, 1975, when he was represented by an attorney on the staff of the Albany County Public Defender. A plea of not guilty was entered and the trial was set for November 19, 1975. On that day, represented by the same attorney, the petitioner offered to plead guilty to attempted rape in full satisfaction of the indictment.

 Before accepting the tendered plea, petition was questioned closely by the court. He acknowledged that he understood he was pleading to a felony for which he could be sentenced to a maximum of fifteen years imprisonment; that he understood he was waiving his right to a jury trial; that the plea was the product of his own free will and voluntarily made; and that no promises as to sentence had been made by any person. The indictment was read and Gunn admitted that he was present in the victim's room when the attempted rape allegedly occurred. However, when asked by the court, "Did you try to rape that girl?," the petitioner replied, "I don't remember, sir, I was drunk at the time." When asked what he did in the girl's room at that time, he again asserted that he did not remember his actions on the morning in question. Nevertheless, when questioned further by the court, petitioner stated that he did not "disagree with the allegations contained in the indictment. . . ." And when asked once more how he pled to the crime, he replied, "Guilty, your Honor." The court thereupon accepted his plea.

 At the time of sentencing, one week after the entry of the guilty plea, the petitioner, his attorney and the prosecutor, were asked by the court whether they wanted to be heard with reference to sentencing; they responded negatively. As the court was about to pronounce sentence, the petitioner himself moved to withdraw his plea of guilty. He stated that: (a) he had been "scare(d) into" his guilty plea by his attorney, who had "convinced" him "that (he) would be found guilty"; (b) he had seen his lawyer only for a total of twenty minutes before making the plea; (c) he was "scared" by the minimum sentence that could be imposed; (d) he "had a change of mind" about the plea, and; (e) he felt he had a defense to the charge. Sandwiched among the list of these items, and toward the end of his statement, petitioner asserted for the first time, "For one, I'm innocent."

 After making a detailed recital of its inquiry of the defendant at the time he offered to plead guilty to assure that his plea was freely, knowingly and voluntarily entered and that a factual basis existed for his admission of guilt, the court denied the motion to withdraw the guilty plea. In doing so, the court invoked its power to "exercise . . . discretion . . . in the interest of justice." Although recognizing that "there is something abhorrent about sentencing a man who protests his innocence," the court nevertheless concluded that unless there was "finality in plea bargaining" on both sides, the criminal justice system would be reduced to "chaos." The court then imposed an indeterminate sentence of imprisonment with a maximum of fifteen years. *fn5"

 The petitioner appealed his conviction to the Supreme Court, Appellate Division, which denied relief. *fn6" It rejected both of Gunn's contentions that the trial court erroneously refused to permit the withdrawal of his plea, and that he was denied adequate assistance of counsel. In its per curiam opinion the Appellate Division did not comment upon the petitioner's third contention: that the trial court had erred when it failed to suppress certain unspecified identification evidence. The petitioner's motion for leave to appeal to the Court of Appeals was denied on January 10, 1977. *fn7"

 I

 As to his claim of inadequate and ineffective representation by counsel, particularly with respect to the entry of his guilty plea, the petitioner charges that his attorney spent no more than twenty minutes with him before the plea was entered, and that most of this time was directed to urging him to enter into a plea bargain. In order for this charge to reach the level of a constitutional denial of his right to adequate legal representation, petitioner must establish that the advice he received and upon which he acted in entering his guilty plea was not "within the range of competence demanded of attorneys in criminal cases." *fn8" A defendant who pleads guilty on his counsel's advice accepts "the inherent risk that the good-faith evaluations of a reasonably competent attorney will turn out to be mistaken as to the facts or as to what a Court's judgment may be on given facts." *fn9" As to the time factor, every lawyer of trial experience knows, as do the trial courts, that time spent in consultation is not the measure of competence; that each case must be resolved on its individual facts with respect to the issue of adequate representation. *fn10" The charge against petitioner was simple; the facts uncomplicated; the state's witnesses, three, the victim and the two fellow students who cornered defendant in the bathroom. The defendant, of course, was a potential witness on his own behalf. However, the record does not indicate that other witnesses were available to the defense, or the nature of the testimony that he or they might have given upon a trial. Assuming petitioner correctly states the amount of time his attorney spent with him, it is not alleged in what respect additional conferences would have aided his defense or resulted in his not entering the plea of guilty.

 Although petitioner has not set forth any evidentiary fact as to the advice he allegedly received from his attorney, the record permits a consideration of the advice that a "reasonably competent attorney" would have given the petitioner who, if convicted on both counts, faced a term of imprisonment ranging from 10 to 30 years. *fn11"

 Had the case proceeded to trial the evidence available to the state to support a conviction of the defendant was substantial. The victim's sworn complaint, filed shortly after the incident, graphically depicted her harrowing experience. Assuming that her account was truthful, the evidence pointed to petitioner as the perpetrator. Although the victim refused to look at her assailant's face, she pursued him down the hall when he fled from her room and saw him enter the bathroom. She was aided by the two male students who responded to her screams for help. With the assailant not out of her sight from the time of the attempted rape in the bedroom to his entry into the bathroom, three witnesses were available to identify him as the individual who was removed from the bathroom and then placed under arrest. While petitioner now asserts an alibi defense, notice of which was not served upon the state prior to trial as required, *fn12" no facts have been set forth to indicate basis of such a defense.

 Under these circumstances, the only issue that Gunn might have raised upon a trial, and which he referred to when he sought to withdraw his guilty plea, is that he was too drunk to have had the requisite criminal intent to commit the crime. Other than his statement at the time of sentencing, the record, however, contains nothing to indicate that Gunn had consumed any alcoholic beverages or if he had, the quantity and the effect of consumption of liquor on the issue of criminal intent. Moreover, the victim's description of her assailant's actions reflects a course of purposeful and malicious conduct that seems inconsistent with drunkenness. Finally, even if petitioner had offered proof of intoxication, the jury was not required to but could consider that evidence on the issue. *fn13"

 In light of the direct evidence against the petitioner, the shocking character of the crime, and the infirmity of his purported "defense," *fn14" counsel's advice to the petitioner was more than competent. It represented, as the trial judge noted, "an honest appraisal of the situation" facing the petitioner. The fact that counsel, upon a realistic appraisal of the situation, may have strongly impressed his view upon the petitioner is not in itself improper, in the absence of any showing that Gunn's will was overborne. *fn15"

 Finally, despite petitioner's protestations to the contrary, he profited from his lawyer's advice; he gained from " "the give-and-take negotiation common in plea bargaining between the prosecution and the defense.' " *fn16" His sentence was considerably lighter than what he might otherwise have received. *fn17" Despite his prior criminal record, he was given an indeterminate sentence without the minimum of which he was "scared." ...


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