Appellant James Innes appeals from a February 23, 1988 order of the United States District Court for the Eastern District of New York (Nickerson, J.), 680 F. Supp. 517, denying his application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Reversed and remanded with directions to issue the writ.
Van Graafeiland, Cardamone and Pierce, Circuit Judges.
Judge Van Graafeiland dissents in a separate opinion.
CARDAMONE, Circuit Judge:
This appeal is from a judgment of the United States District Court for the Eastern District of New York (Nickerson, J.) entered February 22, 1988 denying appellant James Innes's application for a writ of habeas corpus. The petition for habeas relief arose from a dispute concerning the effect of appellant's plea bargain in New York State Supreme Court. It is widely recognized that whether an individual plea agreement is a good bargain is an open question; that the process of plea bargaining is essential to the administration of the criminal justice system, however, is no longer open to question. On this appeal, we must decide whether appellant's plea agreement was one to which appellees may insist that he adhere.
I PRIOR LEGAL PROCEEDINGS
Appellant was indicted on four separate counts of robbery in the first degree committed in 1983 in Queens County, New York. In exchange for concurrent sentences of four and one-half to nine years imprisonment, Innes withdrew his not guilty plea and entered a plea of guilty to four counts of robbery in the second degree in New York State Supreme Court, Queens County. At the plea proceeding, the state trial judge asked Innes whether he had discussed the charges with counsel, and whether he understood them and the sentence that would be imposed under the plea arrangement. The following colloquy between the court and appellant occurred:
THE COURT: Have any promises been made except the following promise to induce you to plead guilty to the charge, the first thing you are going to remain at liberty pending sentence, secondly, you come back for sentence, your sentence will be four and a half to nine years as a maximum, in other words it will be a concurrent sentence, if you owe any parole violation time as a matter of law that parole violation time must be in addition to the sentence to be imposed upon you by this Court; do you understand that?
THE DEFENDANT: Yes. . . .
THE COURT: Do you further understand this Court is conditioning your remainig [sic] at liberty and the pleas in this case on the following, number one, that you show up for sentence, number two, that you cooperate with probation, number three, most important, that you don't get re-arrested and charged with any other crimes or offenses; do you understand that?
THE COURT: If you violate any of the conditions outlined by the Court, do you understand that you are facing the possibility of consecutive sentence totalling thirty to sixty years which would be the maximum sentence to be imposed by you under each one of these indictments as a second or predicate felon, you would owe seven and a half to fifteen--withdraw that, on the C felony, yes, it would be thirty to sixty years, you could face seven and a half to fifteen years consecutive sentence on each one of these; do you understand that?
The trial court judge then carefully explained to Innes that his plea of guilty waived his privilege against self-incrimination, his right to a jury trial and his right to call upon and confront witnesses.
Two months later, Innes appeared before the same state court judge for sentencing. The court noted that while at liberty during the interim between the plea hearing and the date of sentencing, appellant had been arrested in Nassau County, New York on three robbery charges. The trial court then ruled that the plea agreement had been breached, and that it was not required to impose a reduced sentence, stating
THE COURT: . . . [P]art of the provisions of the Court's promise is that the defendant would be left at liberty and the Court made three conditions in addition to the fact that the Court would live up to this promise and the three conditions were that the defendant would show up for sentence, he would cooperate with probation and not get rearrested. It is my understanding, sir, and I have documentation here from the District Court in Nassau County, that your client was arrested and charged with four separate robbery charges, three of which occurred while the defendant was at liberty between the time the Court took the plea and the time sentence was to be imposed . . . . Under those ...