DUKES v. WARDEN, CONNECTICUT STATE PRISON
No. 71-5172.
Argued March 21, 1972
Decided May 15, 1972
Brennan, J., delivered the opinion of the Court, in which Burger, C. J., and Stewart, White, Blackmun, Powell, and Rehnquist, JJ., joined. Stewart, J., filed a concurring opinion, post, p. 257. Marshall, J., filed a dissenting opinion, in which Douglas, J., joined, post, p. 259.
James A. Wade argued the cause and filed briefs for petitioner.
John D. LaBelle argued the cause and filed a brief for respondent.
Mr. Justice Brennan delivered the opinion of the Court.
On May 16, 1967, petitioner, on advice of counsel, pleaded guilty in the Superior Court of Hartford County, Connecticut, to charges of narcotics violation and larceny of goods. On June 16, 1967, before being sentenced, he informed the court that he had retained new counsel and desired to withdraw his plea and stand trial. The court refused to permit him to withdraw his plea and sentenced him to a term of five to 10 years on the narcotics charge and to a term of two years on the larceny charge. The Connecticut Supreme Court affirmed this conviction on his direct appeal challenging the voluntariness of his plea, State v. Dukes, 157 Conn. 498, 255 A. 2d 614 (1969), and the United States District Court for the District of Connecticut denied his application for federal habeas corpus relief sought in Civil Action No. 13029. He then brought this state habeas corpus action in the Superior Court for Hartford County, and attacked the voluntariness of his plea under the Federal Constitution on a ground not raised either on his direct appeal or in his action for federal habeas corpus relief. He alleged that a conflict of interest arising from his lawyer’s representation of two girls with whom petitioner had been charged in an unrelated false pretenses case was known to the judge who sentenced him and rendered his plea involuntary and unintelligent. After a full hearing, the Superior Court denied relief. The Supreme Court of Connecticut affirmed, 161 Conn. 337, 288 A. 2d 58 (1971). The Supreme Court stated that, although the petition for state habeas relief alleged that the guilty plea was not voluntary and intelligent on several grounds, “[o]n appeal, however, [petitioner] has asserted in essence only that he was denied the effective assistance of counsel, which rendered his plea involuntary . . . .” 161 Conn., at 339, 288 A. 2d, at 60. We granted certiorari. 404 U. S. 937 (1971).
The two girls were represented by Mr. Zaccagnino of the firm of Zaccagnino, Linardos, & Delaney in the false pretenses case, and petitioner by another lawyer, when petitioner retained the firm to defend him in the narcotics and larceny case. There were also charges pending against petitioner in New Haven and Fairfield counties. He also faced the possibility of prosecution as a second offender, having been convicted in state court in 1961 of breaking and entry and assault.
Petitioner, accompanied by Mr. Zaccagnino, appeared on May 9, 1967, to plead to the narcotics and larceny charges. The lawyer advised him to plead guilty if a plea bargain could be negotiated whereby the State’s Attorney would consolidate all outstanding charges in and out of Hartford County and agree not to prosecute petitioner as a second offender, but to recommend a sentence of five to 10 years on the narcotics charge, two years on the larceny charge, and concurrent sentences on all the other charges. Under Conn. Gen. Stat. Rev. § 54-17a (1958) the New Haven County and Fairfield County charges would be transferred to Hartford County for disposition only if the State’s Attorney of the counties consented and petitioner pleaded guilty to the charges. When petitioner refused to accept this advice, Mr. Zaccagnino asked the court to be relieved as petitioner’s counsel. The court denied the request but accepted petitioner’s plea of not guilty and continued the trial to the next day so that petitioner might try to retain another lawyer. As petitioner went to the corridor outside the courtroom, however, Hartford police officers arrested him on still another charge. Petitioner attempted suicide at the police station to which he was taken and was hospitalized for several days. Accordingly the trial date was postponed to May 16.
Petitioner did not engage new counsel but appeared for trial on May 16 represented by Mr. Delaney, partner of Mr. Zaccagnino who was engaged in another court. Petitioner now showed interest in a plea bargain, and Mr. Delaney and the State’s Attorney engaged in negotiations, which were interrupted from time to time while Mr. Delaney consulted with petitioner. A plea bargain on the terms Mr. Zaccagnino had urged petitioner on May 9 to accept was finally struck, and petitioner withdrew his not-guilty plea and entered the guilty plea he now attacks. The State’s Attorney had misgivings because of petitioner’s expressed dissatisfaction with Mr. Zaccagnino the week before, and the following occurred:
“[State’s Attorney]: . . . The record also ought to appear that Mr. Delaney is here with him today and he is in the office of Mr. Zaccagnino. I think the Court might inquire with respect to the representation since there had been some indication that counsel had asked to withdraw the other day.
“The Court: Well now, Mr. Dukes, I want to be sure that everything is in order here. . . . Now I want, now Mr. Delaney is here, are you fully satisfied with the services he is rendering you, Mr. Dukes?
“The Accused: Yes, sir.
“The Court: You are. And now you know of course, Mr. Dukes, that — you know of course that the State of Connecticut has the burden of proving you guilty on the charge and you are free to go to trial but you still wish to change your plea, is that correct?
“The Accused: Yes, sir.
“The Court: And do you do this of your own free will, Mr. Dukes?
“The Accused: Yes, sir.
“The Court: And you know the probable consequences of it?
“The Accused: Yes, sir.
“The Court: Very well, and no one has induced you to do this, influenced you one way or the other? You are doing this of your own free will?
“The Accused: Yes.
“The Court: Very well then. We will accept the change of plea.”
The court set June 2, 1967, for sentencing petitioner. But the documents transferring the New Haven County and Fairfield County charges had not arrived, and the presentence report had not been completed, on that day, and the date was therefore continued to June 16, 1967. By coincidence, however, the judge’s calendar for June 2 also listed the case of the two girls who, on Mr. Zac-cagnino’s advice, had pleaded guilty to the false pretenses charges and were to be sentenced. That proceeding did not involve petitioner because the disposition of the charges as to him was part of the plea bargain. In urging leniency for the two girls, Mr. Zaccagnino made statements putting the blame on petitioner for the girls’ plight. These statements are the primary basis of petitioner’s claim of divided loyalty on the part of Mr. Zaccagnino that he alleges rendered his guilty plea of May 16 involuntary and unintelligent. Mr. Zac-cagnino said:
“[B]oth of them came under the influence of Charles Dukes. Now how they could get in a position to come under the influence of somebody like him, if Your Honor pleases, creates the problem here that I think is the cause of the whole situation.
“Both these girls left their homes, came under the influence of Dukes and got involved. I think, Your Honor, though, that the one thing . . . that should stand in their good stead, as a result of their willingness to cooperate with the State Police they capitulated Dukes into making a plea. I think, Your Honor, since I was on both sides of the case, having been on the other side on the other case I can tell Your Honor that it was these girls that because of their refusal ... to cooperate with Dukes and to testify against him that capitulated him into taking a plea on which he will shortly be removed from society . . . .”
Mr. Zaccagnino appeared on June 16 to represent petitioner in the proceedings to complete the plea bargain. He was surprised to be told by petitioner that petitioner had obtained new counsel and intended to withdraw his guilty plea and stand trial. It appears from petitioner’s cross-examination at the state habeas hearing that he had learned on June 2 of Mr. Zaccagnino’s statements about him when the girls were sentenced. Yet he did not tell Mr. Zaccagnino that this was why he was changing lawyers, nor did he tell the court that this was why he wanted to withdraw his plea. When pressed by the court to give a reason, he answered, “At the time I pleaded, I just came out of the hospital, I think it was a day, and I was unconscious for three days, and I didn’t realize at the time actually what I was pleading to.” His explanation for wanting another lawyer was that he thought an out-of-town lawyer would give him better service: “I would rather have an attorney out of town for certain reasons of the case.” The court refused to permit petitioner to withdraw the plea and heard counsel on the question of the sentence to be imposed. The State’s attorney, despite the collapse of the plea bargain, recommended, and the court imposed, a first offender’s sentence of five to 10 years on the narcotics count and two years on the larceny count; that is the precise sentence the State’s Attorney had agreed to recommend as part of the plea bargain. Mr. Zaccagnino, however, was concerned that petitioner’s unwillingness to go through with the plea bargain left petitioner vulnerable to the prosecution on the outstanding charges in the various counties: “[I]t was a matter that Your Honor would normally , in a situation like this, enter concurrent sentences, if, in fact, it was so recommended by the State’s Attorney; but since [petitioner] doesn’t want to plea to these other matters, I would like to make that note for the record, because I feel at some later date he may have to come back to this court and see Your Honor or see another judge on these other matters now pending before it.”
On this state of facts, the Connecticut Supreme Court concluded that petitioner had not sustained his claim that a conflict of interest on the part of Mr. Zaccagnino rendered his plea involuntary and unintelligent. The court said, 161 Conn., at 344-345, 288 A. 2d, at 62:
“There is nothing in the record before us which would indicate that the alleged conflict resulted in ineffective assistance of counsel and did in fact render the plea in question involuntary and unintelligent. [Petitioner] does not claim, and it is nowhere indicated in the finding, nor could it be inferred from the finding, that either Attorney Zac-cagnino or Attorney Delaney induced [petitioner] to plead guilty in furtherance of a plan to obtain more favorable consideration from the court for other clients. . . . Neither does the finding in any way disclose, nor is it claimed, that [petitioner] received misleading advice from Attorney Zaccag-nino or Attorney Delaney which led him to plead guilty. . . . Moreover, the trial court specifically found that when [petitioner] engaged Zaccagnino as his counsel, he knew that Zaccagnino was representing two defendants in the unrelated case in which he was a codefendant, that he never complained to the court that he was not satisfied with Attorney Zac-cagnino because of this dual representation, that he was not represented at the entry of his plea by Attorney Zaccagnino, that he was represented by Attorney Delaney at the entry of his plea, that he had a lengthy conversation with Attorney Delaney prior to entering his plea which he recalled completely, and that on specific inquiry by the court before he pleaded guilty, he told the court that he was satisfied with the representation by Attorney Delaney. The court did not err in concluding that [petitioner’s] plea was not rendered involuntary and unintelligent by the alleged conflict of interest.”
We fully agree with this reasoning and conclusion of the Connecticut Supreme Court. Since there is thus no merit in petitioner’s sole contention in this proceeding— that Mr. Zaccagnino’s alleged conflict of interest affected his plea — that conflict of interest is not “a reason for vacating his plea.” Santobello v. New York, 404 U. S. 257, 267 (1971) (Marshall, J., concurring and dissenting).
Affirmed.
“Q. ... On June 2nd, weren’t you in Court with Mr. Zaccagnino when your case had to be postponed . . . ?
“A. I’m trying to think of the day that the girls got sentenced, because I was not in Court the day they got sentenced, because I know that I wasn’t in Court that specific day, because that’s when I was told what was said about me, and so forth and so on, in Court, so I’m quite sure I wasn’t in Court that day.” App. to Petitioner’s Brief 162-163 (emphasis supplied).
The state habeas court took evidence on the question whether his plea was involuntary as the product of the after-effects of his suicide attempt and found against petitioner. Petitioner has not sought review on this question. The only issue before us is his claim that the alleged conflict of interest rendered the plea involuntary and unintelligent.
As events proved, all other charges pending in the various counties were dismissed, although after the decision of the Connecticut Supreme Court affirming petitioner’s conviction on direct appeal. Petitioner thus received the benefits of the plea bargain without paying the cost of pleading guilty to the other offenses.
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