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March 11, 1981

Daniel SHARP, Petitioner,
Charles SCULLY, Superintendent of Green Haven Correctional Facility, Respondent

The opinion of the court was delivered by: BRIEANT


This petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 was filed by petitioner Daniel E. Sharp on November 6, 1980. The District Attorney of Kings County and/or the Attorney General of the State of New York were ordered by this Court on November 17, 1980 to answer the petition. The District Attorney filed an answer for respondent on December 16, 1980.

 Petitioner has exhausted his state remedies, as a result of his direct appeals in the New York State courts, as required by 28 U.S.C. § 2254(b). For the disposition of these appeals, see, People v. Sharpe (sic), 72 A.D.2d 572, 420 N.Y.S.2d 736 (2d Dept.), leave to appeal denied, 48 N.Y.2d 985, 425 N.Y.S.2d 1042, 401 N.E.2d 429 (1979). In those appeals petitioner raised the same issues which he has raised in this petition.

 This Court has been supplied with the brief of petitioner on appeal before the Appellate Division, and will treat that brief as setting forth petitioner's arguments in this case. The District Attorney of Kings County has also filed a brief.

 On April 10, 1978, pursuant to a plea bargain, petitioner pleaded guilty to murder in the second degree, robbery in the second degree, and burglary in the second degree. On May 19, 1978 petitioner was sentenced to a term of 15 years in accordance with this plea bargain.

 In June 1977 petitioner had been found to be incompetent to proceed to trial. Later, in July and again in October of 1977 petitioner was found to be fit to proceed, whereupon petitioner entered a plea of not guilty and gave notice to the district attorney that he intended to place in issue his sanity at the time of the crimes.

 Immediately prior to entering his guilty plea on April 10, 1978, petitioner was examined by two court appointed forensic psychiatrists, Dr. Adolph Goldman and Dr. Richard L. Wiedenbacher. They testified before the trial judge on April 10th that in their opinions the petitioner was fit to proceed because he understood the nature of the charges against him and did not seem to be exhibiting any psychotic symptoms at that time. Before pleading guilty, petitioner's counsel withdrew the plea of not guilty by reason of insanity.

 Petitioner contends that his guilty plea was accepted by the trial judge in violation of the United States Constitution for two reasons. First, petitioner argues that the trial judge did not determine petitioner's "specific mental capacity" to waive his rights under the Sixth and Fourteenth Amendments. Second, petitioner argues that the trial judge, in violation of petitioner's rights under those two Amendments, did not establish on the record a factual basis for the guilty plea after petitioner claimed he was innocent of the murder.

 Petitioner's first argument is that a determination that a defendant is fit to proceed to trial does not support or represent a simultaneous finding that the defendant, a fortiori, has an understanding of the consequences of pleading guilty and thus can knowingly waive important constitutional rights. The Appellate Division panel in this case held that "after defendant was adjudicated competent to proceed to trial, further inquiry into his mental capacity to plead guilty was unnecessary." 420 N.Y.S.2d at 737, citing People v. Reason, 37 N.Y.2d 351, 372 N.Y.S.2d 614, 334 N.E.2d 572 (1975).

 Our Court of Appeals has not addressed this issue directly, but has commented upon it as follows in dictum:

"It has been held that competency to plead guilty must be greater than competency to stand trial since the former requires an understanding of constitutional rights. E. g., Sieling v. Eyman, 478 F.2d 211 (9th Cir. 1973). This conclusion was based on the holding in Westbrook v. Arizona, 384 U.S. 150, 86 S. Ct. 1320, 16 L. Ed. 2d 429 (1966) (per curiam), which recognized a distinction between competence to stand trial and competence to waive the right to counsel, the former nor (sic) necessarily guaranteeing the latter. We need not reach this question, however, since the parties have not objected to the use of the New York statutory test of incompetency to stand trial, see note 26 supra, throughout these proceedings to determine Suggs' competency to plead guilty. Moreover, it may be drawing too fine a line to be susceptible of scientific evaluation. See Note, Competence to Plead Guilty: A New Standard, 1974 Duke L.J. 149, 170."

 Suggs v. LaVallee, 570 F.2d 1092, 1118, n. 65 (2d Cir.), cert. denied 439 U.S. 915, 99 S. Ct. 290, 58 L. Ed. 2d 263 (1978); see also United States ex rel. Curtis v. Zelker, 466 F.2d 1092, 1098-99 (2d Cir. 1972), cert. denied 410 U.S. 945, 93 S. Ct. 1405, 35 L. Ed. 2d 612 (1973).

 As noted by the Court in Suggs, the Ninth Circuit has held that before a guilty plea may be accepted, a defendant must be found to possess that degree of competency "which enables him to make decisions of very serious import." Sieling v. Eyman, 478 F.2d 211, 214-15 (9th Cir. 1973). That court went on to state, however, that since the defendant in Sieling was examined by three medical experts within a month before his plea, the trial judge might be able to determine, from the opinions expressed by the doctors, whether or not Sieling was competent to plead guilty as well as to stand trial. Id. at 215.

 This Court believes that the adoption of a different and higher standard of mental competency for pleading guilty than for proceeding to trial would be utter mischief, and would force psychiatrists, and certainly judges, to draw lines that are in fact "too fine" to be determined. Absent a contrary direction by our own Circuit to employ a different standard, I conclude in this case that since petitioner was found competent to ...

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