Lead Opinion
Jackie Evans appeals from the district court’s denial of his application for a writ of habeas corpus. The principal ground for the appeal and the only one worth discussing is that the district court should have held an evidentiary hearing to determine whether the failure of Evans’ counsel to advise Evans that he might have a defense of intoxication either constituted ineffective assistance of counsel or made Evans’ plea of guilty involuntary.
At 4:30 one morning Evans entered a police station and asked the radio operator, Lonbom, to call Detective Azbill for him. Lonbom told Evans to call Azbill himself, using a telephone in another office. Evans left but returned shortly and placed a steak knife against Lonbom’s neck and told him to call Azbill and tell him to come to the station. Lonbom did аs told. When Azbill arrived, Evans told him to unload his gun and place the gun and cartridges on the counter; Azbill complied. Evans then told Azbill to go and get a police report on him. Azbill again did as told. When he returned he noticed that Evans had reloaded Azbill s gun and was holding it. Azbill expressed some concern about this turn of events but Evans assured Azbill that he was afraid of guns and never used them Evans let Lonbom leave the station, and Evans and Azbill then spent an hour and a half discuss-mg the contents of the police report and alsothe question of Eyansvisitation rights with his daughter. _ Azbill told Evans he thought he could bring the daugnter to the station and Evans told him that that was what he wanted Azbill brought the child to the station, where Evans spoke with her privately for a while and was then arrested He was charged with a variety of offenses under Illinois law, and m 1978 pleaded guilty and was sentenced to 9% years m prison.
Although Evans told his lawyer that he had been extremely drunk during the incident at the police station, the lawyer advised him that he had no defense of intoxication, and it is this advice of which Evans principally complains. There is debate in the briefs over whether intoxication *s a defense under Illinois law to the crimes which Evans was charged, but the state concedes that it is to at least one (unlawful restraint), and for purposes of this appeal we shall assume (without decid™S) that it is to all. We still do not think that Evans is entitled to a hearing on his claim of ineffective assistance of counsel, For it is apparent from the facts narrated above, none of which Evans disputes, that no competent counsel would have advised Eva^ ,to risk a trial in which his defense would have been “toxication.
Intoxication as such is not a defense to a criminal charge; many crimes are committed by people who are under the influence of alcohol. The only relevance of intoxication is that it may prevent the perpetrator from forming the intent required by law for the commission of the particular crime. The offenses with which Evans was charged were armed violence, unlawful restraint, and forcible detention. See Ill.Rev.Stat.1983, ch. 38, §§ 33A-2, 10-3> 10-4. “Armed” violence is the commissjon 0f a fe]ony while armed with a dangerous weap0n. Forcible detention and unlawfuj restraint are felonies, and hence possible predicates of an armed-violence charge, Porcible detention is committed when a person armed with a dangerous weapon “holds an individual hostage without lawful au. thority for the оf obtaining performance b a third n of demands made by the pergon holdi the hogta „ Unlawful regtraint ig committed when one «knowingly without legal authority detains another» Forcible detention requires that the offender be able to form ^ ¡ntent to obtain performance of his demands by a third person, and it is plain that Evans had and indeed fu]fi]Ied that b taking Lonbom bogtage in order to get Azbm to talk to him. It is also apparent that Evans could not have believed that he had the legal authority to hold a knife to Lonbom’s throat, and therefore was also able to form the intent required to commit unlawful re-straint. It is not as if Evans, perhaps suffering from delusions, believed that
Thus, with respect to both the forcible-detention and the unlawful-restraint charges, and hence with respect to the armed-violence charge as well, a defense of intoxication would have been at best a theoretical possibility. The uncontested facts of the incident out of which the criminal charges grew made it inconceivable that a jury would have acquitted Evans because he was too intoxicated to form the intent required to commit these crimes. See People v. Primmer,
All this is so plain that no lawyer in his right mind would have advised Evans to go to trial with a defense of intoxication, especially when he could if convicted on all charges have bеen sentenced to 120 years in prison. Evans’ argument thus reduces to the proposition that his lawyer should have told him that he had at least a theoretical defense of intoxication, should have explained to him the unlikelihood that the defense would be accepted in a trial, but should have left to him the ultimate decision whether to raise the defense. That might well have been the better course but the only issue for us is whether Evans’ conviction should be set aside on the ground that he was denied “reasonably effective assistance of counsel,” Strickland v. Washington, —U.S. —,
It is not enough, moreover, for Evans to show that his lawyer unreasonably failed to raise the intoxication defense. The Supreme Court has now made clear that, “Conflict of interest claims aside [and none is made here], actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice.” Strickland v. Washington, supra,
As our discussion of the Morgan case should make apparent, it changes merely the form, and not the substance, of the argument for Evans to contend that by not telling him that he had a defense of intoxication his lawyer made his plea of guilty involuntary. A voluntary choice presupposes some knowledge of the consequences of the choice, and a plea of guilty may therefore be held to be involuntary if the defendant was not informed by his lawyer of his defenses to the criminal charges. See, e.g., Clay v. Director, Juvenile Division,
United States v. Frye,
The judgment denying Evans’ petition for a writ of habeas corpus is
Affirmed.
Dissenting Opinion
dissenting.
The majority treats this as a simple case, indeed as an open-and-shut case. I do not believe this is a fair way to treat it. Because the majority gives such short shrift to the factual and procedural circumstances which make this for me a difficult case, I find it necessary to address them in some detail.
The allegations of Evans’ petition for post-conviction relief are substantially identical to those of his petition for a writ of habeas corpus. Evans, twenty years old at the time of his guilty plea, alleged that he had a history of alcoholism, severe depression, suicidal tendencies and psychomotor
Evans allegedly was informed by counsel that there was a strong possibility that thе judge would refuse to accept the plea if Evans continued to maintain that he had no recollection of the events in question.
Evans stated in an affidavit accompanying his petition that he still did not remember committing the crimes to which he pleaded guilty. In sum, Evans alleged that counsel made no effort to investigate the practicability of an intoxication, “blackout” or automatism defense, and coerced Evans into leading the trial court to believe that he recalled the events giving rise to the charges.
Evans did not receive an evidentiary hearing on the allegations of his post-conviction petition in the state courts, although he maintained that such a hearing was necessary to determine whether a “blackout” or automatism defense was viable or practicable and stated that Doctor Kiley was willing to testify that Evans’ memory lapse was real; that during the events at the police station Evans was in a “semi-fugue state”; and that “his mind was not controlling his actions.” The state trial judge determined that the transcript of the guilty plea proceeding refuted Evans’ “blackоut” defense, stating that,
His attorney, in his presence at the arraignment, without refutation by the defendant, said that he had just learned that the defendant remembered everything the evening of the occurrence. And the defendant volunteered to the court that he never pointed a gun at Mr. Azbill and that the defendant asked Azbill if he would like to leave the police station.
The state appellate court determined that Evans’ allegation that his attorney informed him intoxication was not a possible defense to any of the crimes with which he was charged was supported by the record.
Assuming, arguendo, that the defendant was so intoxicated that he could not form the required intent for four of the charges against him [the two counts of forcible detention and the armed violence counts based upon the forcible detention counts], the fact remains that he was also charged with four general intent felony charges, including two class “X” felonies.4
The appellate court added that not only was Evans’ claim of intoxication conclusory and unsupported by affidavits, but Evans’ “voluntary” statements at the guilty plea proceeding explaining some of the factual bases of the incident belied his contention that he was so intoxicated he could not remember committing the crimes with which he was charged. Although apparently conceding that intoxicatiоn was a possible defense to four of the charges against Evans and finding that Evans was informed to the contrary by counsel, the state appellate court did not proceed to apply the Illinois legal standard of ineffective assistance to the facts. Rather, the appellate court determined that Evans’ “voluntary” statements at the guilty plea proceeding refuted his defense of intoxication. These “voluntary” statements apparently were used to buttress the state court’s implicit determination that any erroneous advice given by counsel on the availability of an intoxication defense did not substantially prejudice Evans.
Evans fared no better in the federal district court. The decision of the district court gave only cursory attention to Evans’ claim. After quoting selected passages from the Supreme Court’s discussion in Sumner v. Mata,
[a] reading of the record presently before this Court clearly reveals that the question of the voluntariness of the petitioner’s guilty plea because of coercion and ineffective assistance of counsel was squarely presented to both the state trial and appellate courts and ruled upon adversely to the petitioner. Based upon the Sumner case, supra, and a consideration of the total record before this Court the petitioner has failed to establish an entitlement to the relief sought here.
Apparently, the district court viewed the ultimate issue whether Evans’ guilty plea was constitutionally valid as a question of fact and deferred to the state courts’ rulings on the issue. I think this approach is unsupportable.
This court has held that the question whether a plea of guilty is entered knowingly, intelligently and voluntarily is a mixed question of law and fact “that requires the application of legal principles to the historical facts.” Nash v. Israel,
Presented with an inadequate determination by the district court that leaves us with nothing to review, the majority attempts to do what the district court failed to do. Focusing solely on the stated factual basis for Evans’ plea of guilty, the majority proceeds to apply the federal standard of ineffective assistance of counsel to what are characterized as “undisputed” facts.
Then, in the role of fact finder, the majority determines that no jury would have acquitted Evans on the ground that he was too intoxicated to form the intent required to commit the crimes. Having taken for granted the futility of an intoxication defense, the majority proceeds to the question whether counsel’s assistance was ineffective because he failed to inform Evans that an intoxication defense was a possibility. The majority thinks not, but the answer is uninformed by any analysis of counsel’s actual advice. And, the majority says any incompetence was harmless not only because the defense was infeasible but because the “additional information” that Evans claims he should have received from counsel “would not have led him to аlter his plea.”
The decision whether to plead guilty or proceed to trial is one that remains at all times with the defendant personally. Boykin v. Alabama,
The efforts that counsel is required to make in order to effectively advise his client how to plead to charges are only modestly demanding. Certainly, the plenary investigation of the factual and legal bases for the charges required when the case is to go to trial is not demanded at the pleading stage of the proceedings. Counsel’s investigatory efforts must, however, be sufficient to enable him to discharge his duty to provide the defendant with an understanding of thе law in relation to the facts and to advise him meaningfully of his options. See United States v. Frye,
A rational and informed decision to plead guilty cannot be made by a defendant who lacks knowledge of his options and the potential consequence of pursuing one rather than another. Although I do not believe that counsel is obliged to inform a defendant of every technical or evidentiary defense that might be raised at trial, counsel has a responsibility to investigate potential affirmative defenses. Id.; Lee v. Hopper,
The majority refrains from suggesting that counsel’s advice reflects “informed, professional deliberation,” United States v. Bosch,
The majority would leave with counsel plenary authority to define his client’s options. It concludes that, if counsel deems infeasible the only affirmative defense available in principle to his client, counsel may unilaterally determine that his client has no options. Although the majority concedes that the better course is for counsel to inform his client that the defense is theoretically available, explain that the defense is unlikely to be pursued successfully and leave to the client the ultimate decision whether to raise the defense, the majority decides that counsel’s failure to take these steps does not constitute ineffective assistance.
In fact, the hypothetical ineffective assistаnce of counsel claim which the majority addresses bears no resemblance to the case actually before the court. The majority’s conclusion presupposes that counsel was aware of the theoretical availability of the defense and had engaged in investigatory efforts sufficient to satisfy himself that the defense was infeasible.
To my knowledge, this circuit has not addressed the issue whether ineffective assistance of counsel may be harmless in the context, not of trial, but of a challenge to the voluntariness or intelligence of a plea of guilty. We necessarily have not determined what the appropriate inquiry into prejudice must be. Indeed, the Supreme Court only recently made clear exactly what standard is to be applied in the context of a trial. Strickland v. Washington, —U.S. —,
In Strickland, the Supreme Court anаlyzed the question of prejudice in terms of the purpose of the sixth amendment guarantee of counsel, which is “to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the pro
show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
At the pleading stage of the adversary criminal process, when the accused must determine whether he is to exercise or to waive his right to defend, there is need for counsel to assist the accused in making a rational, intelligent and voluntary choice and to insure that he is treated fairly by the state. The test for whether counsel’s acts or omissions have prejudiced the accused must serve the purpose of insuring that the waiver of constitutional rights that attends a plea of guilty is voluntary, knowing and intelligent.
The majority concludes that any incompetence on the part of Evans’ counsel was not prejudicial for two reasons: (1) it is inconceivable that a jury trial, at which Evans raised a defense of intoxication, would have resulted in his acquittal; and (2) the “additional information” that Evans claims counsel should have given him “would not have led him to alter his plea.”
I believe that, in the context of a guilty plea, the inquiry whether counsel’s acts or omissions have prejudiced the defendant should not focus on whether there is a reasonable probability that the defendant would have been acquitted had he chosen to proceed to trial. This prong of the majority’s test is unworkable in the case of a guilty plea because the reviewing court has no trial record to review and consequеntly no way of evaluating the effect of counsel’s errors in relation to the case as actually presented by the prosecution. To attempt to predict the outcome of a trial in a case in which no investigation of potential affirmative defenses has been made and the court has before it only the factual basis for the plea of guilty (which is merely the prosecution’s summary of what it would attempt to prove at trial) is an exercise in “unguided speculation.” Holloway v. Arkansas,
Further, the majority forgets that the issue with respect to the voluntariness of the plea is not whether the defendant would have been convicted but whether he knowingly and intelligently waived his right to go to trial. The majority treats this case as if the issue were the sufficiency of the evidence, not the voluntariness of the pleа. This is simply wrong. Even guilty defendants have a right to go to trial, and a waiver of that right, to be effective, must be voluntary.
These difficult factual determinations concerning the adequacy of counsel and the voluntariness of Evans’ plea simply cannot be determined without a hearing. Because Evans did not receive a full and fair evidentiаry hearing in state court I would remand the ease for this purpose. Townsend v. Sain,
Notes
. In an affidavit accompanying the petition for a writ of habeas corpus, Evans stated that trial counsel had been informed that Evans was an epileptic and that medical records at the Illinois Research Hospital would confirm this. Counsel allegedly failed to review these records.
. The trial judge was told early in the proceedings that Evans was claiming hе had no memory of committing the crimes with which he was charged. The trial judge ordered an evaluation of Evans’ competency to stand trial.
Submitted with the petition for post-conviction relief were the reports of Doctors Sunder-land and Kiley, who had evaluated Evans and found him competent to stand trial. With respect to Evans’ alleged loss of memory,. Kiley’s report stated that:
Jackie's "memory lapse" may indeed be real ... [and] with this man’s background of denial and escape, it is not unlikely that anger plus alcohol could lead to such a “blackout.” One must conclude that Jackie remains responsible for establishing and fostering the conditions which stimulated such a "blackout,” if it did occur.
Sunderland’s report stated that:
His memory is good except that he has an apparent loss of memory for the events for which he is chаrged. This is probably due to the influence of alcohol causing a temporary loss of memory.
. At the guilty plea proceeding, counsel stated: As the Court knows, these are general intent crimes. The very act of doing the act is
. Evans pleaded guilty to two counts of forcible detention, three counts of armed violence, and one count of unlawful restraint. It appears from the record that one count of unlawful restraint and one count of armed violence were dismissed. The four general intent felony charges to which the state appellate court referred apparently were the two unlawful restraint charges and the two armed violence charges based upon them.
. Specifically, the majority notes that the facts of the incident at the police station are not disputed by Evans. Strictly speaking this is true. Evans claims he does not remember the incident and has alleged that he agreed with the factual basis for the plea propounded by counsel at the hearing because counsel informed him the judge would not otherwise accept the plea.
. I would not readily agree with the majority’s thesis that counsel may determine his client’s options even if its hypothesized case were before the court. Counsel’s duty is to inform the defendant of his options and render an assessment of the relative advantages of pursuing one or another. In a case in which only one affirmative defense is available and the facts of the incident suggest to counsel that the issue whether the defense is feasible deserves some investigation, I believe the defendant should be informed of the results of that investigation. To hold otherwise is in effect to permit counsel to decide whether his client should plead guilty.
. The majority apparently relies upon Morgan v. Israel,
Arguаbly, the "acquittal” standard should apply in a case like Morgan, in which the defendant, through his plea, reserved the right to present one specific defense and a trial was held. As pointed out by Judge Posner in Morgan, psychiatric evidence on the issue of insanity is highly probative on the issue of specific intent. A federal habeas court, armed with the record produced at an insanity trial, may be able to make an educated assessment of whether the defendant had a tenable defense based on lack of specific intent to kill. Additionally, in Morgan, the facts of the crimes were brought out at Morgan’s trial on the charges of murdering Mallason’s wife and child. Other circumstances in Morgan also contributed to an informed assessment of Morgan’s chances for acquittal: he had admitted killing Mallason; he never argued that he did nоt intend to do so; he was faced with the Wisconsin law of presumptive intent; and he would not have been permitted to introduce psychiatric testimony on the issue of specific intent. Clearly, then, the prejudice assessment did not rest merely on the tenuous foundation of the factual basis for Morgan’s plea.
Finally, Morgan did not challenge the voluntariness of his plea on the ground that he received ineffective assistance of counsel. Morgan was fully informed of his options, the strength of the government’s case was assessed, and the affirmative defense of insanity was investigated, decided upon by Morgan, and pursued, albeit unsuccessfully.
. I would not equate the "practicability” of a defense with a "reasonable probability” of success. Rather, I use the term "practicable” in the sense of "possible of implementation.” The appropriate question is whether it is possible, i.e., neither necessarily probable nor impossible, that the defense could have been pursued suc- ■ cessfully.
. I do not agree with the state courts that Evans was not entitled to an evidentiary hearing because his "voluntary statements" at the guilty