The opinion of the court was delivered by: GOETTEL
MEMORANDUM DECISION AND ORDER
Petitioner, who is serving a sentence of fifteen years to life, following a guilty plea to the murder of an off-duty police officer during the course of a robbery, seeks a writ of habeas corpus. He contends that he should have received no more than a fifteen-year sentence, pursuant to his plea bargain, and that he was never adequately advised that intent was an element of the crime of second degree intentional murder.
Petitioner's guilty plea was entered in April of 1968 before Justice Peter T. Farrell of the New York State Supreme Court.
The court clearly advised the defendant that the only understanding was that his minimum sentence would not be less than fifteen years. On November 22, 1978, Justice Farrell sentenced petitioner to a minimum of fifteen years and a maximum of not more than twenty-five years. Defense counsel thanked the court. No objection was voiced that the sentence was not in accordance with the plea bargain.
Shortly thereafter, Justice Farrell became aware that a recent amendment to the New York State penal law required defendants convicted of felony murder (second degree intentional murder) to be sentenced to a maximum term of life imprisonment. Consequently, on December 17, 1968, he brought petitioner and his counsel back to court and advised them that, while there was discretion on the minimum sentence, the maximum must be life. He stated that he was ready to set aside the original sentence he imposed as contrary to law. Defense counsel objected, pointing out that the original sentence was fifteen years to twenty-five years. The court then responded that counsel had stated, either on the record or at a sidebar conference,
that there would be no motion to withdraw the sentence and that defendant was ready for sentence. The court offered to adjourn the matter until the following day and defense counsel declined, urging the court to change the offense into a class B felony so that the prior sentence would be legal. The court declined to do this because the District Attorney had informed him that he would not recommend it. Defense counsel then responded that they stood ready to proceed at that time. The court then resentenced the defendant to a minimum of fifteen years and a maximum of life.
Defendant, through different counsel, appealed his sentence on grounds that the plea of guilty was not freely given
and that the alternative of a death penalty, in the event of a trial and conviction, was unconstitutional. The appeal was unsuccessful, as was a subsequent motion for a writ of error coram nobis, raising essentially the same issues. The Court of Appeals affirmed without opinion the decision of the Appellate Division and the trial judge dismissed a second coram nobis proceeding on grounds that it was identical to the first.
Some ten years after his sentence, petitioner broadened his collateral claims to include the argument that there was an off-the-record agreement that the maximum sentence would be twenty-five years, and, additionally, that he had not been advised of the requisite elements of intentional murder. This motion was also denied, the court noting that the delay of nearly a decade was "... a significant factor which must weigh heavily against the defendant in determining the validity of his present assertions. The reopening of an old conviction when a retrial would be a virtual impossibility would not be in the interest of justice." The Appellate Division denied leave to appeal. With one minor exception noted below, it appears that state remedies have been exhausted.
Petitioner's contentions, concerning the voluntariness of his guilty plea, have two branches:
1. He now contends that the off-the-record plea bargain was that he would receive a sentence of merely fifteen years and not of a minimum of fifteen years;
2. He was not aware, and was not advised, that his plea would require that the maximum sentence be life.
The first claim, that petitioner was assured that he would receive fifteen years as his total sentence, is totally belied by the transcripts of the proceedings. The court was quite clear in discussing the plea to make sure that petitioner understood that he would receive a minimum sentence not in excess of fifteen years. It is beyond belief that petitioner's alleged misunderstanding would have been ignored throughout the sentencing, resentencing, appeals, and three coram nobis writs.
Moreover, there has been no exhaustion of state remedies as to this claim.
While it is clear that petitioner, as well as his counsel and the sentencing judge, was unaware at the time of the plea that New York law required that the maximum term must be life imprisonment, it appears quite likely that he was aware that this was a possible consequence of pleading guilty to murder in the second degree. No promise was made to the petitioner concerning his maximum sentence. Moreover, petitioner had a total of four competent attorneys during his plea, sentence, and resentence.
The voluntariness of a plea is determined by considering all the relevant surrounding circumstances. Henderson v. Morgan, 426 U.S. 637, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976); Brady v. United States, 397 U.S. 742, 749, 90 S. Ct. 1463, 1469, 25 L. Ed. 2d 747 (1970). We will assume, without deciding, that the absence of knowledge that the plea mandated a maximum sentence of life is a circumstance that renders the plea involuntary. Compare United States ex rel. Leeson v. Damon, 496 F.2d 718 (2d Cir.), cert. denied, 419 U.S. 954, 95 S. Ct. 215, 42 L. Ed. 2d 172, 95 S. Ct. 216 (1974); with Kelleher v. Henderson, 531 F.2d 78, 81 (2d Cir. 1976).
We will also entertain the possibility that this constitutes a plea bargain violation under Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971). But see Williams v. Smith, 591 F.2d 169, 171 at n.5 (2d Cir. 1979). Assuming this to be so, however, the petitioner's time to assert his rights was when the court resentenced him on December 17, 1968. Although petitioner now contends that he was unaware that he had a right to withdraw his plea, the transcript cited above makes it quite clear that his counsel not only knew of this possibility, but considered it and rejected it. While it would have been better to have established this on the record, rather than in an earlier sidebar conversation, the sentencing judge's remarks clearly establish that this occurred. Moreover, we have no ...