Opinion
No. 36621.
Filed March 8, 1968.
1. Criminal Law. It is recommended that upon tender of a guilty plea the court inquire about plea discussions and any plea agreement between counsel. 2. Post Conviction: Attorney and Client. Post conviction relief on the ground of ineffective assistance of counsel will not be granted unless counsel's assistance was so grossly inept as to shock the conscience of the court.
Appeal from the district court for Holt County: WILLIAM C. SMITH, JR., Judge. Reversed and remanded with directions.
McFadden, Kirby Swoboda, for appellant.
Clarence A. H. Meyer, Attorney General, and Richard H. Williams, for appellee.
Heard before WHITE, C.J., CARTER, SPENCER, BOSLAUGH, SMITH, McCOWN, and NEWTON, JJ.
In this post conviction proceeding defendant has appealed from denial of his motion stating that his counsel had rendered ineffective assistance. John R. Gallagher had been appointed defense counsel in March 1966. In May defendant pleaded not guilty to charges of motor vehicle homicide and leaving the scene of the accident. Gallagher and the county attorney, William W. Griffin, at times discussed plea and probation. On October 10 defendant changed his plea to guilty to the homicide charge, and the State then dismissed the second count. On October 24 defendant was sentenced to 18 months' imprisonment. He filed this post conviction motion on December 22, 1966.
Evidence of the intellectual functioning of defendant, age 27, is meager, no psychological tests having been performed. His grade level of educational achievement is probably 10, although he informed court and counsel that he was a high school graduate. Gallagher had the following opinion: "A. * * * I thought he was a little better than a moron. Q. How much better? A. Not very much better. * * * Q. Isn't it true you found out subsequently that one of his principals in the school * * * has stated that this individual had less than the usual intelligence ordinarily required to get through the third or fourth grade? * * * A. I have found it out now * * *." By prearrangement defendant had looked at Gallagher for answers to questions asked at the second arraignment hearing.
Defendant testified that he had changed his plea to guilty only because Gallagher had promised him probation outright. Gallagher's versions of the odds stated to defendant climbed from possibility to strong chance to probability.
Other circumstances are summarized from Gallagher's testimony. Upon his appointment he asked defendant and defendant's relatives to advance $200 for expenses. The sum was paid. Gallagher's compensation would have been the same whether the case was tried or not, but that thought did not affect the plea decision. Gallagher was "quite certain" that probation would be granted. Griffin said that upon a plea of guilty to the homicide charge he would "probably" dismiss the second count. There was, Griffin continued, a "strong chance" or probability of probation, and he would not resist. The judge had disclosed to him that probation "might" be entertained. The guilty plea was not induced by the discussions with Griffin.
Two weeks after entry of the guilty plea and a few minutes before commencement of the October 24th hearing, Gallagher met the judge. Their conversation caused Gallagher's concern to mount sharply: "Judge Smith said something about this being a very difficult matter, and * * * he said * * * he was in a quandry himself as to just what to do in this case. * * * a few minutes later, I met Mr. Griffin * * *, and I told Mr. Griffin of the judge's remark, which had disturbed me quite a little. * * * I may have mentioned * * * it sounded to me like the judge was a little antagonistic to any probation in this case. * * * (Griffin) went into the judge's chambers, and I thought well, I better stay out of there."
Statements bearing on the true situation had been made at the October 10th hearing: "THE COURT: The statutes * * * provide * * * do you understand what the possible penalties are? DEFENDANT: Possible penalties, yes. * * * (Guilty plea received). * * * MR. GALLAGHER: * * * I could say a few words on behalf of my client. * * * We presume there will be a sentence imposed of some nature here, * * *."
Other excerpts from Gallagher's testimony are noteworthy: "A. * * * I informed Mr. Tunender that if the judge would put him on probation it would probably be for at least about three years. * * * I informed * * * (defendant) that if he were convicted in court * * * he would be sent to the penitentiary. * * * Q. Do you remember what your answer was to my question (asked in a street conversation), did you tell him he would be put on probation? Did you, or did you not, say it was all cut and dried? Did you make that statement in those * * * particular words? * * * A. I may have probably said something to that effect; of course your words of `Cut and dried' are more or less strong talk."
We recommend that upon tender of a guilty plea the court inquire about plea discussions and any plea agreement between counsel. "Such inquiry will disclose whether there is reason for the court to caution the defendant of the court's independence from the prosecutor. * * * See People v. Baldridge, 19 Ill.2d 616, 169 N.E.2d 353 * * *." A. B. A. Project, Standards Relating to Pleas of Guilty, Tent. Dr. 1.5, p. 30.
Post conviction relief on the ground of ineffective assistance of counsel will not be granted unless counsel's assistance was so grossly inept as to shock the conscience of the court. State v. Moss, ante p. 502, 155 N.W.2d 435.
A prisoner's hindsight may twist prudent advice and words of caution into intentional misrepresentation. That case is not this one. Gallagher breached his duty of loyalty, and the breach misled defendant to plead guilty. Gallagher's assistance was ineffective.
The judgment is reversed and the cause remanded with directions to vacate the judgment of conviction and sentence.
REVERSED AND REMANDED WITH DIRECTIONS.