Hill v. Lockhart

PETITIONER:Hill
RESPONDENT:Lockhart
LOCATION:Ciraolo’s Residence

DOCKET NO.: 84-1103
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 474 US 52 (1985)
ARGUED: Oct 07, 1985
DECIDED: Nov 18, 1985

ADVOCATES:
John Steven Clark – on behalf of the Respondent
Jack T. Lassiter – on behalf of the Petitioner

Facts of the case

Question

Audio Transcription for Oral Argument – October 07, 1985 in Hill v. Lockhart

Warren E. Burger:

Mr. Lassiter, I think you may proceed whenever you are ready.

Jack T. Lassiter:

Mr. Chief Justice, and may it please the Court, the issue presented in Hill v. Lockhart is rather a technical and narrow issue, but one T think is significant in the daily workings of the criminal courts.

Petitioner William Hill entered a guilty plea in the Pulaski County Circuit Court in 1979 to charges of murder and theft of property.

He received a 35-year sentence on the first degree murder conviction and a concurrent ten-year sentence on the theft of property conviction.

In his habeas petition which he filed pro se, which appears in the joint appendix a: 8 and 9 he alleged that he bled with the understanding that he would receive a 35-year sentence and that he would be parole eligible after serving one-third of his sentence, less good time.

William H. Rehnquist:

What page does that appear at, Mr. Lassiter?

Jack T. Lassiter:

It’s at 8 and 9 in the joint appendix.

The petition for habeas corpus is set forth there.

William H. Rehnquist:

Mine only goes to page–

Jack T. Lassiter:

Eight and 9.

William H. Rehnquist:

–Oh, 8 and 9.

Jack T. Lassiter:

I’m sorry, Your Honor.

William H. Rehnquist:

Thank you.

Jack T. Lassiter:

He also indicated that his lawyer told him that the Court would impose a 35-year sentence.

He alleged that his lawyer told him that he would be out in six years if he stayed out of trouble.

He alleged that he was not advised of Act 93 which rendered him parole ineligible until serving one-half of his sentence less good time, since he was a second offender.

William H. Rehnquist:

Does he allege that he had told… or told his lawyer all of his factual background so that his lawyer would know that Act 93 was applicable?

Jack T. Lassiter:

Justice Rehnquist, that does not appear in his pleading.

At a hearing, if we were granted a hearing in this matter, of course this is not of record, that would be his testimony.

William H. Rehnquist:

But it wasn’t in his petition for habeas that we’re reviewing here?

Jack T. Lassiter:

That’s correct.

Of course, our position is that if he didn’t tell counsel, counsel should have inquired about that, that that would be part of the diligence that counsel should demonstrate in defending one in a criminal case, and I think we could also demonstrate that at a hearing.

Sandra Day O’Connor:

Does the record reflect that Mr. Hill understood when he entered the plea that had he gone to trial he would serve half of whatever sentence was imposed?

Jack T. Lassiter:

No, the record does not reflect that.

There was no advice from the Court concerning potential parole eligibility if he pled or if he went to trial.

Sandra Day O’Connor:

But the law in Arkansas at the time was that had he gone to trial he would serve half of any sentence resulting from a conviction?

Jack T. Lassiter:

Regardless of whether he pled or went to trial, he would be parole ineligible until serving one-half, less whatever good time had accrued.

William H. Rehnquist:

As I understand it, Mr. Lassiter, your client here does not make any claim that his guilty plea was not intelligent or knowing.

It is a challenge to the assistance of counsel he received?

Jack T. Lassiter:

We allege voluntariness, he alleges, we allege that the plea was not voluntarily entered.

William H. Rehnquist:

By reason of erroneous advice from the lawyer?

Jack T. Lassiter:

That’s correct.

William H. Rehnquist:

No claim of erroneous advice from the Court?

Jack T. Lassiter:

That’s correct, and we also do not claim that the Court was under a duty to advise Petitioner as to potential parole eligibility.

We don’t make that claim.

We make the claim that his counsel affirmatively misadvised him; that is, he told him that he would be parole eligible at serving one-third less good time that he told him that would be about six years if he stayed out of trouble, that he would not have entered the plea except for that advice, that he would not have entered the plea if he had known that he would not be parole eligible until serving one-half less good time.

Harry A. Blackmun:

Mr. Lassiter, who was the lawyer, now deceased?

Jack T. Lassiter:

His name is William Patterson.

He was the Deputy Public Defender.

Harry A. Blackmun:

Patterson?

Jack T. Lassiter:

Yes, Your Honor.

Mr. Patterson died in the summer of 1980.

Sandra Day O’Connor:

Would you mind explaining what the law in Arkansas is on alleging and proving prior convictions to enhance or determine parole eligibility?

If I understand it correctly, the State is not required to allege and prove the prior conviction.

Jack T. Lassiter:

That’s correct, Your Honor.

Sandra Day O’Connor:

That’s a determination to be made by the parole board after the conviction and the sentence, is that right?

Jack T. Lassiter:

It is determined by the Arkansas Department of Corrections.

When the inmate is received at the Department of Corrections they will check his prior record through the Arkansas Crime Information Center and the FBI, and then if they find a prior felony conviction for which he was incarcerated, then they use that in computing his parole eligibility that date.

The State does not have to allege and prove prior convictions as part of the trial process or plea process.

The District Court dismissed the petition without a hearing.

The Eighth Circuit affirmed, the Eighth Circuit holding that details of parole eligibility are a collateral and not a direct consequence of the plea and therefore cannot render Mr. Hill’s plea involuntary.

And also, the Eighth Circuit looks at the Fourth Circuit cases of Strader versus O’Tuel discussed in the brief and finds here that counsel’s misadvice, alleged, does not rise to the level of gross misinformation as addressed in Strader and O’Tuel.

There is one matter here that I would like to address initially because the cases cited in the brief, a number of them, distinguish between what we call positive misadvice and statements by counsel that are called a mere prediction, or present only a hope of leniency.

The State argues that in the situation that Mr. Hill found himself in, and with the series of events as alleged by Mr. Hill, that this could only… that counsel’s advice here could only be of a speculative nature, just an estimate, and cannot rise to the level of being positive misadvice, and the State argues that that is so because under the Arkansas rules of Criminal Procedure, the trial judge does not have to accept the recommendation of the State.

Now, that is correct, under the Arkansas Rules of Criminal Procedure the trial judge does not have to accept the recommendation of the State.

But we’re not sure exactly what happened here.

Mr. Hill alleged that counsel told him that the judge would accept the plea under the Arkansas Rules of Criminal Procedure.

There is a provision which allows the attorneys to discuss the plea with the Court beforehand, and the Court can either accept or indicate that the Court will accept or reject.

That may have happened here, we’re not sure.

If we had a hearing on this matter, I also think that I could show that this particular judge at that time in 1979 accepted almost all recommendations from the State on negotiated pleas, and it was his practice, if he was not going to accept that recommendation, to allow the defendant to–

Sandra Day O’Connor:

Well, under this plea the highest potential sentence that could have been imposed was up to 50 years, is that correct?

Jack T. Lassiter:

–Five to 50, or life.

Sandra Day O’Connor:

And had the judge given the maximum sentence, then this Mr. Hill would not have had to serve longer than the time he is objecting to here, isn’t that true?

A third of 50 would be how much?

And how is he prejudiced, then, by the fact that he got a lesser sentence that he has to serve half of, which wouldn’t be any more than had he received the maximum sentence and served a third of it?

Jack T. Lassiter:

Well, the allegation is that he entered the plea based on advice by counsel that he would receive the 35 years, and he did receive the 35 years, and that he relied on that in entering the plea.

If he had received a 50-year sentence then the same parole laws would have been in effect.

He would have had to have served one-half less good time and not one-third less good time, as counsel told him he would have to serve.

Sandra Day O’Connor:

But, now, when the judge asked him whether any promises were made to him to get him to enter the plea agreement, his response was, no, nothing that didn’t appear on the agreement.

Are you relying for purposes of this case on a promise that he would get 35 years maximum, or not?

Because, that would be in conflict with the face of the plea agreement and I hadn’t understood that you had raised that and were relying on that.

I understood that you were relying only on an allegation that the lawyer had told him something about his parole eligibility date, not that he had been promised that he would get a 35-year sentence, maximum.

Jack T. Lassiter:

Well, I think I have to address the issue of what sentence that the lawyer told him he would get, in order to demonstrate that the lawyer’s advice concerning potential parole eligibility was not just an estimate or a prediction, if he were in the situation where nobody knew what Mr. Hill was going to receive when he walked up there and pled.

Byron R. White:

Well, he really didn’t, did he?

He didn’t know what he was going to get.

The Judge wasn’t bound.

They could have given him 50 years.

Jack T. Lassiter:

He could have, but that was not that judge’s practice and counsel advised him that the Court would impose whatever the recommendation was.

That is correct, under the Arkansas Rules of Criminal Procedure the judge did not have to take the recommendation.

Byron R. White:

Let’s assume he expected to get 35 years and the judge gave him 50.

Do you think he would have some right to habeas corpus just bared on that, if that’s all that happened?

Jack T. Lassiter:

It depends on what happened before and if it was a negotiated plea where the judge had in no manner whatsoever participated in it, and if counsel had not advised him that he was going to get 35 years and he walked up there and the judge gave him 50 years.

No, he–

Sandra Day O’Connor:

Mr. Lassiter, you keep changing the question.

I’m looking at the question presented for review to this Court, and I read it as saying that he alleges that the attorney misadvised him as to his potential parole eligibility date, not that he had been promised that he would get a 35-year maximum sentence.

Jack T. Lassiter:

–That’s correct, Your Honor.

That’s the question.

Sandra Day O’Connor:

So, you are arguing something now that I didn’t understand was encompassed in this question at all.

I understood you were basing it on the allegation that the lawyer said, you’re going to be eligible for parole after serving a third of your sentence, whatever it is.

Jack T. Lassiter:

That is correct, Your Honor.

Jack T. Lassiter:

That’s the question presented.

Sandra Day O’Connor:

So, we don’t have to consider this discussion this morning about a promise of 35 years maximum, right?

Jack T. Lassiter:

That’s correct.

Sandra Day O’Connor:

Okay.

Jack T. Lassiter:

That’s correct.

I only mentioned that in trying to show that we have possibly misadvice here, and that we’re not dealing with speculation.

William H. Rehnquist:

Now, in the habeas petition, Mr. Lassiter, did your client make the contention that had he been properly advised as to parole eligibility he would not have entered into this plea bargain?

Jack T. Lassiter:

Your Honor, he does not in his habeas petition.

That does appear, however, in the objections to the proposed order of the Magistrate, and that’s at… it appears… that is in the joint appendix at 46 and 47.

Lewis F. Powell, Jr.:

Is it your argument that the Constitution requires that in plea bargaining, in hearing before the trial court, that always there is a right, a constitutional right to know the earliest date at which parole may be pursued?

Jack T. Lassiter:

No, Your Honor.

We are not arguing that.

I’m not arguing that.

I am arguing that the Constitution places a duty on the attorney to advise properly when he does that, and to not overlook an easily accessible published statute that controls parole eligibility.

That’s what we argued.

John Paul Stevens:

Let me ask one other factual question.

You indicated that the basis for the claim that he would not have entered an innocent plea if he had known the true facts, is in your objections rather than in the habeas… that’s apparently, though, that’s a document that you prepared?

That’s not under oath?

Jack T. Lassiter:

That’s correct, Your Honor.

John Paul Stevens:

I mean, there’s no way you could testify to this.

So, is it proper in your view for the record to be made up of, in effect, factual statements in a brief in support of your position?

That’s essentially what it is.

Jack T. Lassiter:

Well, if you take it as it is, he prepared this pro se petition.

He is not a lawyer.

He is not a scholar.

I can only… I came in after the Magistrate had prepared his recommendations for the district court and then I filed the objections.

I can only, at this point, tell the Court what his testimony would be.

John Paul Stevens:

See, one other fact kind of puzzles me a little bit.

I guess for Act 93 to apply there has to have been a prior felony conviction, is that it?

Jack T. Lassiter:

Yes, Your Honor.

John Paul Stevens:

Is it clear that the lawyer who is row deceased was advised about the existence of the prior felony conviction?

Jack T. Lassiter:

Not on the record.

John Paul Stevens:

So, you really don’t know if the lawyer did anything but tell him, according to his best knowledge, what the law was?

I’m just speculating, because in your answer to Justice O’Connor you pointed out that the correction office checks this at the time of parole eligibility?

Jack T. Lassiter:

That’s correct.

John Paul Stevens:

But apparently the judge thought it was a third.

It doesn’t seem to be, anybody was conscious of the prior conviction, as far as I can tell.

Jack T. Lassiter:

Again, as I said a moment ago, I think counsel is under a duty to inquire about prior convictions even if we had a situation here where petitioner didn’t tell him.

And also, let me address–

John Paul Stevens:

Just one other observation.

The lawyer who is now deceased, and apparently died just shortly before the habeas corpus petition was filed, apparently if he was a public defender, I’m amazed he wouldn’t know about Act 93 but I could understand how he might not know about a prior conviction.

Jack T. Lassiter:

–Well, yes.

It surprises me also.

William H. Rehnquist:

Mr. Lassiter, couldn’t your client have amended his habeas corpus petition if at the time you were objecting to the Magistrate’s report it appeared to you that it had not said enough on the subject of whether he would have entered this plea had the advice been correct?

Jack T. Lassiter:

I believe he could, and as I say i raised that in the objections.

William H. Rehnquist:

But it’s not in any verified way.

Jack T. Lassiter:

That’s correct.

William H. Rehnquist:

You certainly can’t speak for him.

Jack T. Lassiter:

Well, that would be my error, that that was not done.

William H. Rehnquist:

So, we really don’t know that by his statement.

We don’t know that he would not have entered exactly the same plea even if he had received the correct advice.

Jack T. Lassiter:

Not based on the allegations that appear in the original petition.

I think that is correct.

William H. Rehnquist:

Well, not based on any other statement by him in the record, isn’t that correct?

Jack T. Lassiter:

It does not appear at page 8 and 9 in his allegations.

Justice Stevens, you raised a question a moment ago concerning what the Court said about the defendant being required to serve one-third.

I would like to clear this up.

There is some misunderstanding about that.

Whatever the Circuit Court Judge would have said at that time would have had no effect on the potential parole eligibility date of the petitioner.

It was strictly controlled by Act 93 and that would have been set once he reached the Department of Corrections.

Jack T. Lassiter:

I believe that that was probably just a result of having at that time some of the judges continuing to do that, because prior to the enactment of Act 93 if one was under the age of 21 and he would be immediately parole eligible upon being sent to the Arkansas Department of Corrections as a first offender, and the judge could make him serve one-third less good time by saying he had to serve a third.

I think that was just force of habit.

His statement that he was to do one-third would have had no effect whatsoever on the amount of time that he was to serve.

Sandra Day O’Connor:

Mr. Lassiter, assuming that the Court were to feel that the allegation somehow rose to the level that a hearing would be appropriate, what standard should be applied to determine, what legal standard should be applied to determine the ineffectiveness of assistance claim in a plea bargain situation?

Jack T. Lassiter:

I think we can take Strickland v. Washington and place it on this situation and ask, first of all, was counsel diligent in his representation of the defendant, did he breach some duty owed, some investigatory duty or some other duty owed to the defendant, and we would ask that question first.

Petitioner would testify–

Sandra Day O’Connor:

Or perhaps ask first whether there was prejudice.

Jack T. Lassiter:

–That’s the second problem with the test, and the prejudice here would be that he would not have entered the plea except for this advice and that he waived his right to go to trial.

Sandra Day O’Connor:

If the facts appear that he had made such–

Jack T. Lassiter:

Yes, of course.

John Paul Stevens:

–May I ask one other… I’m sorry to take so much of your time, but your brief refers to the previous Florida conviction.

Where in the record do we know exactly what the Florida conviction is for and when it was entered?

Jack T. Lassiter:

It doesn’t appear.

John Paul Stevens:

It does not appear?

Jack T. Lassiter:

No, I don’t–

John Paul Stevens:

Well, is it conceivable… I’m not suggesting this happened, that the defense counsel knew about the Florida conviction but the prosecutor and the judge didn’t and he thought it would be a little smarter not to mention it?

Is that possible, consistent with what we know in the record?

Jack T. Lassiter:

–It’s possible but it would have been very ill-advised because the Department of Correction would have caught it once he arrived there.

John Paul Stevens:

Yes, but on the other hand, maybe if they’d known… I don’t know what that conviction was.

It might have been something that might have made the prosecutor ask for a more severe sentence.

I just don’t know, and if you get a hearing that you’ve asked for, the testimony will be presented by your client about his conversation with a now deceased lawyer, a kind of unsatisfactory state of affairs.

Jack T. Lassiter:

I would have to assume that… again, we would speculate here, but I would have to assume that the prosecutor was aware of that because routinely they run an FBI check on people that are charged with serious crime.

John Paul Stevens:

Well, is it your suggestion the prosecutor didn’t know about Law 93 either?

If he knew about it… I find it rather surprising that trained lawyers in the criminal… in prosecuting criminal cases wouldn’t know of the existence of that statute.

Isn’t that fairly common?

Jack T. Lassiter:

Yes, it certainly is, and that’s one of the first things that your client wants to know if you are negotiating a plea.

So, criminal defense attorneys are, and certainly should be, well aware of the defect of Act 93 because everybody wants to know that.

If you’re going to negotiate a plea they want to know when is the earliest possible date that they could be released.

I think we could show at a hearing by putting on attorneys that this kind of advice is extremely important during the course of representing a client when negotiating a plea.

I think that we could prove that rather easily and I think we could show that if an attorney misadvises in this manner that it would be a breach of a duty owed a client, and a breach of diligence, which was, I think, the term used in Strickland v. Washington.

Jack T. Lassiter:

We are asking for a hearing here on the allegations in this case that the advice by counsel was not speculative in nature but positive.

Warren E. Burger:

I suppose we can assume that the testimony of the prisoner, who is not here, would be just as it is set out in your brief, that is, that he was misadvised?

Jack T. Lassiter:

Yes, Your Honor.

Warren E. Burger:

And the lawyers… suppose the lawyer says, no, that’s not so, contrary testimony?

What have we got except a decision on credibility?

Jack T. Lassiter:

That’s where it would lodge, at that point.

That’s what you’d have.

William H. Rehnquist:

Well, except the lawyer’s dead.

Jack T. Lassiter:

That’s correct.

Warren E. Burger:

I’m speaking of the general rule of cases that you would make out of this?

Jack T. Lassiter:

That’s right, it would simply be the lawyer’s testimony against the Petitioner’s.

Byron R. White:

Well, that wouldn’t be the end of it, even if you believed him.

Jack T. Lassiter:

That’s correct, in that you would have to show that he wouldn’t have entered the plea unless–

Byron R. White:

Wouldn’t the ineffectiveness claim really boil down to the same issue as the voluntariness of the confession?

Jack T. Lassiter:

–Yes, I believe so, voluntariness of the plea.

Byron R. White:

Of the plea, yes.

Jack T. Lassiter:

Yes, I think so.

William H. Rehnquist:

Did the State ever raise in its defense of this kind of provision the habeas rules that allows dismissal of habeas where the delay in bringing it in has prejudiced the State’s ability to defend against the claim?

Jack T. Lassiter:

I would like to point out that the initial circuit court pleading which Mr. Hill filed, which he styled a Mr. Patterson’s death.

I would like to save what time I have left for rebuttal, Your Honor.

Warren E. Burger:

Very well.

Mr. Attorney General.

John Steven Clark:

Mr. Chief Justice, may it please the Court, the facts in this case are simple and direct.

It is true that Mr. Hill was charged with murder one and theft of property.

It is also important for this record to remember that on April 6th, 1979, the defendant in this case entered into a plea agreement.

In that specific agreement, in which the plaintiff waived, knowingly waived and informedly waived his constitutional rights to a trial, to confront witnesses, to testify in his own behalf, that document, executed by the defendant with the help of his counsel, in fact is a form which they complete together.

On that form the defendant entered “zero” as to prior convictions, without… with assistance of counsel.

That same day the defendant and his counsel appeared before the trial court in order to enter his voluntary plea of guilty.

The Court inquired as to the terms of the plea agreement, specifically if it was accurate, specifically if the defendant had relied upon any promises, threats or other offers from the prosecution, specifically as to whether the defendant was satisfied with representation of counsel, and specifically if the defendant had any other comments that he would like to offer to the Court.

The defendant said no.

John Steven Clark:

I submit to you that the central issue in this case–

John Paul Stevens:

General Clark, just so I can find it in the record, the plea agreement is the one on 28 and 29 of the joint appendix, and where is it that he says “no” as the prior convictions?

I just want to be make sure I–

John Steven Clark:

–Your Honor, on the plea agreement, it is a form and there is a space which says “prior convictions”.

There is a space.

John Paul Stevens:

–Would you just tell me where it is in the record so I can look at… is it 28 and 29?

John Steven Clark:

Yes, sir, it is.

It is not–

John Paul Stevens:

Well, then where is the part about the “zero”?

John Steven Clark:

–In the second paragraph, in the first sentence, Your Honor:

“You are charged with a felony and with zero prior convictions. “

That “zero” is not underscored but it was a blank on the plea agreement itself, Your Honor.

I see.

John Steven Clark:

The simple issue, I submit to the Court in this case, is whether the Court of Appeals erred in finding that the Petitioner was not constitutionally entitled to an evidentiary hearing in a collateral attack of his voluntary guilty plea.

I submit to you, the Court of Appeals did not make error.

This Court on several occasions has emphasized the validity and importance of plea bargaining process, and likewise stated, for the plea bargaining process to work, a guilty plea must be accorded a great measure of finality.

In this instance, the truthfulness and the accuracy of this guilty plea, this voluntary guilty plea, is evidenced by the record.

I submit that generally speaking, parole eligibility is not a direct but rather a collateral consequence of any guilty plea.

It is unnecessary to advise the defendant who desires to plead guilty as to parole eligibility, and the fact that the defendant is misadvised does not in itself per se negate that voluntary plea.

In fact, we have found in the Federal Criminal Rules of Procedure, Rule 11, that the… we have stated in the comments that not only is the question as advise as to when someone might make parole or be parole eligible, but whether, and that is true in Arkansas as there is no requirement to advise as to parole eligibility.

In the case at bar the record clearly demonstrates, I submit to this Court, that parole eligibility was not a part of the plea bargain, and that this Petitioner was not wrongfully induced to plead guilty based on some assertion.

I would further submit to this Court that a better rule of law is that even if the defendant was ill-advised or misinformed as to what the precise eligibility is to be for parole, that fact alone does not take away from guilt or the desire to enter a plea of guilty.

There must be some demonstration of prejudice.

John Paul Stevens:

Just while I’ve got it on my mind, does the record tell us of anywhere that we might have missed as to what the nature of the Florida conviction was, when it occurred, what the offense was and so forth?

John Steven Clark:

Your Honor, the record does not.

The offense, however, was aggravated assault and breaking and entering, of which he was convicted in ’77 and served until ’78, at which time he came to Arkansas.

John Paul Stevens:

I see.

Thank you.

And the Government knew that when this plea bargaining was going on?

John Steven Clark:

Your Honor, I do not know that the Government knew that.

Thurgood Marshall:

Have you ever seen the Government negotiate without a rap sheet?

John Steven Clark:

Your Honor, I have not, but in this instance the rap sheet that we had came from the Arkansas State Police.

Whether it was complete or not, I do not know.

The allegation… the need for finality in the criminal justice process is imperative, I submit to you, particularly when those challenges come from some collateral attack some years later, and are only allegations of ineffective assistance of counsel.

This allegation has become a very common vehicle for those incarcerated to seek relief by simply placing the system and their attorney on trial by realizing their petition as petitioner, at worst cases merely the status quo,

“I voluntarily entered my plea of guilty, I made an informed decision to waive my rights and was sentenced, but maybe I can receive a more favorable sentence later if I will file this collateral attack on that sentence. “

In particular, I submit to you today, what troubles me about this case is that the so-called inducement to plea asserted by Petitioner is actually only that individual’s unilateral expectation, an expectation which rarely, as in this case, if ever can be tested by any objective standard, and which submits virtually every guilty plea, and in Arkansas there are some 10,000 entered each year, to attack collaterally at any time when the defendant upon incarceration determines that his expectations, whatever they may have been, that being denied a right to vote would not have occurred, or being denied the right to hold a hunting licence or a barber’s licence would not have occurred.

If he asserts, then, that because of his expectation he can challenge, collaterally challenge the voluntariness of that plea and be entitled to an evidentiary hearing because of his own individual expectations, and this instance has been stated before clearly, a competent and dedicated and respected public defender, now deceased, cannot be heard as to what in fact did go on in terms of contradicting or supporting the Petitioner’s case.

But in this instance we have a record that demonstrates that that competent and dedicated public defender, who in my opinion did know the law, saw from the defendant an assertion that there were zero prior convictions.

William H. Rehnquist:

General Clark, on page 16 of the joint appendix, there begins what apparently is the State’s response to the federal habeas petition, and which appears to be a transcript of a proceeding before the district court, or at least the State’s version of what happened before the Arkansas trial court.

On page 18, the paragraph towards the bottom of the page, after the indented observation where the Court says something, and this apparently is the State’s paraphrase, it says,

“The Trial Judge then stated that Petitioner would be required to serve at least one-third of his sentence before becoming eligible for parole. “

Now, is that contested in any way that you know of by opposing counsel?

John Steven Clark:

No Your Honor, it is not contested by opposing counsel.

I would further submit to this Court that though I recognize there will be those who would appear at this bar and argue that parole was the only factor to be considered by the defendant in pleading guilty, “When do I get out”, if you will, that a better rule of law and policy requires that you take into consideration two very important factors, and those are simply these, and must be remembered and balanced against that assertion: the multiplicity of imponderables that can affect parole, not the least of which is the conduct of the defendant or changes in regulations or policy, perhaps, by policy making bodies.

I submit that as in this case, when this Petitioner pled guilty voluntarily and in an informed way waived those constitutional rights that are protected, and was sentenced to 35 years which was the agreed recommended sentence, he is not, and I repeat not, constitutionally entitled to serve anything less than 35 years.

Sandra Day O’Connor:

Are there any circumstances, in your view, when an attorney’s erroneous legal advice on parole eligibility could rise to the level of establishing ineffective assistance of counsel?

John Steven Clark:

Your Honor, I have considered that question carefully.

It would be my opinion that perhaps you could make the case where the erroneous advice, or such an inducement to the plea, and on the record the defendant indicated that this was a material fact, to the Court, that,

“I wanted this Court to consider. “

and therefore if the Court did not consider it you might make such a case.

But, in this instance the record is devoid of such an assertion.

Byron R. White:

Wouldn’t it, in any event, have to undermine the voluntariness of the plea?

John Steven Clark:

Yes, Your Honor.

I think it would have to undermine the voluntariness, as I have determined that voluntariness to be, the informed waiver of those rights.

Byron R. White:

What if the defendant’s lawyer just advised him that parole is available and usually, if you behave yourself, it will be one-third, and it turns out that for this crime parole just isn’t available at all, which is true of some crimes?

John Steven Clark:

Yes, Your Honor, it is.

In that instance, if in fact because of that representation, and it was an inducement to that plea, the defendant thinking he would make parole when in fact he could not, you may have prejudice that attaches that allows such a hearing.

Byron R. White:

If those were the facts in this case, would you say that he was entitled to a hearing or not?

I thought your submission was that misadvice about parole really shouldn’t amount to a constitutional violation at all.

John Steven Clark:

It is my submission, Your Honor, that misadvice does not amount to a constitutional violation unless prejudice attaches in some form, that is, there was no voluntary waiver.

Byron R. White:

But you would say… if the facts in my example were the facts of this case, would you say that this gentleman should have been given the hearing?

John Steven Clark:

The facts of your example, Your Honor, is that there would be no parole but he was advised there could be parole, is that correct?

Perhaps in that instance he is entitled to a hearing, yes, Your Honor.

Byron R. White:

In the district court on his application for habeas?

John Steven Clark:

Yes, Your Honor.

In summary to this Court, I would submit this, that the policy as I have stated, which is a better policy, is one in which the defendant is not constitutionally entitled to information as to parole eligibility, and that the need for finality of judgment should continue to be afforded great weight and a measure of finality when a voluntary plea is challenged on a collateral attack in terms of petition for habeas corpus.

For all those reasons, I submit to you that the decision below should be affirmed.

Sandra Day O’Connor:

Counsel, if a sufficient allegation were made to justify holding the hearing, what standard do you think should be applied, legal standard, to determine the issue?

John Steven Clark:

Your Honor, I think that standard would be–

Sandra Day O’Connor:

Do you agree it should be some adaptation of the Strickland standard?

John Steven Clark:

–Your Honor, it should be some adaptation of the Strickland standard, not necessarily the Strickland standard as to an adversarial proceeding.

I think that standard is that in this instance the defendant was induced to make a decision.

If it shows it was not an informed waiver because of facts upon which he relied, either demonstrated by the prosecution or by the defendant or by the Court, then it’s not the same test as Strickland as to that adversarial nature of the full litigation in terms of a plea of not guilty.

John Paul Stevens:

May I just ask one other question?

John Steven Clark:

Yes, Your Honor.

John Paul Stevens:

I must confess, this keeps troubling me.

Now, your police statement says,

“You are charged with a felony with zero prior convictions. “

And you have told us… well, maybe I shouldn’t ask it because it’s off the record, the conviction is a year or two before.

This was after four months after the plea of not guilty, there was a pretrial proceeding, the plea was changed and so forth.

Is it conceivable that neither the prosecutor nor defense counsel knew this fellow had spent a year in jail right before this incident?

John Steven Clark:

Your Honor, it’s possible although I don’t know that it’s probable.

John Paul Stevens:

It seems improbable.

To whom should the zero… should we hold that against your opponent or against your… I just don’t know.

It didn’t say zero, did it?

John Steven Clark:

Your Honor, he entered a zero into the form.

The form has a “Prior Convictions” blank.

There was a zero actually, physically written in.

By whom?

John Steven Clark:

By the defendant and the defendant’s counsel, prepared by them.

Thank you.

Sandra Day O’Connor:

What should the State do if it knows that that’s wrong, and the State is a party to the plea agreement?

What if the prosecutor had the rap sheet right in front of him and knew that there was a prior conviction, read the agreement, knew the defendant had entered the wrong information?

John Steven Clark:

I think the prosecutor as an officer of the court would have the duty to inform the Court what the correct information was.

Thank you.

Warren E. Burger:

Is there anything further, counsel?

Jack T. Lassiter:

One matter, Mr. Chief Justice.

In regard to the police statement form, I think perhaps we need to talk about that for just a moment, and that’s a space where you have a blank for prior convictions.

I believe the purpose of that, and I think probably what happened here, is to enter the number of prior convictions that the individual is charged under the Habitual Offender Act.

I don’t know that we can conclude too much one way or another by the insertion of a zero there.

I think the language–

Byron R. White:

You don’t dispute that… who put the zero in?

Jack T. Lassiter:

–Well, we don’t know who put it in.

I would imagine–

Byron R. White:

The Attorney General says that the defendant and his counsel did.

Jack T. Lassiter:

–I would imagine counsel did that and then presented it to his client.

Byron R. White:

You imagine it?

I mean, you don’t contest that statement, do you?

Jack T. Lassiter:

No, no.

I wouldn’t contest that.

I don’t know actually lifted the pencil and put it in there.

Byron R. White:

But you don’t claim the prosecutor did?

Jack T. Lassiter:

No, I do not.

That’s all I have.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.