UNITED STATES of America, Appellee, v. Christopher WARD, Defendant, Appellant.
No. 06-2354.
United States Court of Appeals, First Circuit.
Decided Feb. 29, 2008.
Heard Oct. 5, 2007.
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Steven H. Breslow, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, and Randall E. Kromm, Assistant United States Attorney, was on brief, for appellee.
Before LIPEZ and HOWARD, Circuit Judges, and OBERDORFER,* Senior District Judge.
LIPEZ, Circuit Judge.
Focusing on deficiencies in a state court plea colloquy on the issue of voluntariness, Christopher Ward challenges on appeal his sentence of 120 months in prison for several drug-related convictions. Ward argues that his sentence is unreasonable as a matter of law because the district court relied on unconstitutional prior state convictions as the basis for a mandatory sentence enhancement under
After considering Boykin and cases decided in its wake, we conclude that the record of the state court proceeding in this case contained sufficient evidence to permit the district court to find that Ward entered his state plea voluntarily, and hence the mandatory sentence enhancement applied.
I.
We recite Ward‘s background from the Presentence Report prepared in conjunction with his federal sentencing. The facts are largely undisputed, and we specifically note where Ward contests the statement of facts offered in the report.
Ward was born in 1986 to a mother who had been using cocaine and methadone. Hospital records reveal positive tests for cocaine, barbiturates, and hepatitis B antibodies on his umbilical cord. At eighteen months, Ward was adopted by Mary Little, whom he believes is a relative of his mother. Ward has not remained in contact with his birth mother, and believes that she died in 2003 from complications related to AIDS; in addition, he does not know his father. Raised in the Mason Square area of Springfield, Massachusetts, a low-income neighborhood plagued by violence, drugs, and gangs, Ward was arrested at age sixteen for receiving a stolen motor vehicle, a charge that was subsequently dropped by the authorities.
* Of the District of the District of Columbia, sitting by designation.
In May 2003, Ward was arrested by the Springfield Police Department on the drug charges that serve as the basis for the sentence enhancement Ward challenges in this appeal. Specifically, on the basis of separate incidents, Ward was charged with several counts of felony drug possession and distribution, three counts of drug violation near a school zone or park, and one count each of resisting arrest and refusing to identify oneself to the police. In February 2004, Ward and his attorney reached an agreement with the prosecutors to have the school zone drug violations nol prossed in return for Ward‘s plea of guilty to the remaining charges. The parties did not agree on any sentence recommendation to be offered to the court. Ward accepted the deal and pleaded guilty to the charges in the Springfield Division of the Massachusetts State District Court.
Prior to accepting Ward‘s plea, the court conducted a colloquy to determine whether his plea would be entered knowingly and voluntarily, and if there was a sufficient factual basis for the plea.
Court: Okay Mr. Ward, how old are you sir?
Ward: Seventeen.
Court: How far have you gone in school?
Ward: I‘m in the eleventh grade.
Court: Have you had any alcohol or drugs today that would in any way interfere with your ability to understand this matter?
Ward: No.
Court: Do you suffer from any mental illness, disease or defect that would in any way interfere with your ability to understand this matter?
Ward: No.
Court: Do you understand that you‘re giving up your right to a trial by a jury?
Ward: Yes.
Court: You‘re giving up your right to confront and cross examine the witnesses against you and you‘re giving up the right against self-incrimination. Do you understand those rights?
Ward: Yes.
Court: Do you understand that you‘re giving them up here today?
Ward: Yes.
Court: Do you understand that if you‘re not a citizen of the United States, conviction of this offense may have consequences with regard to deportation, exclusion from admission to the United States or denial of naturalization? Do you understand that sir?
Ward: Yes.
Court: In other words, if you‘re not a citizen ... this only applies if you‘re not a citizen of the U.S., but it would affect your immigration, naturalization, and deportation status. Have you had enough time to discuss this matter with your attorney?
Ward: Yes.
Ward: Yes.
Court: Are you satisfied that he‘s given you his best professional advice?
Ward: Yes.
Court: There are not agreed recommendations; I‘m free to impose whatever penalty I see fit. But if I should exceed the recommendation your attorney makes, this is what they were referring to earlier, I would allow you to withdraw your admission and go to trial in front of another judge or jury. Do you understand that?
Ward: Yes.
Per the court‘s request, Assistant District Attorney Leahy then summarized the facts in the police report. Upon completion of the recitation, the Court stated the following:
Court: Mr. Ward, you‘re admitting to four counts of distribution of cocaine and one count of distribution of marijuana and one count of resisting arrest. Correct sir?
West (Ward‘s attorney): I believe three counts of distribution of cocaine, Judge.
Leahy: One was possession with intention to distribute cocaine.
West: Possession with intent.
Court: Okay, thank you. Is that what occurred sir on those respective dates?
Ward: Yes.
Court: I find that you freely, voluntarily, and willingly waived your rights and admitted to sufficient facts in the complaint.
Assistant District Attorney Leahy then gave the Court a summary of the facts in connection with a separate drug possession charge and various motor vehicle offenses. Upon completion of the recitation, the colloquy continued as follows:
Court: Is that what occurred on that date sir?
Ward: Yes.
Court: On this matter I also find that you freely, voluntarily, and willingly waived your rights and admitted to sufficient facts.
The Court accepted Ward‘s plea and sentenced him to one year of probation.
In addition to and contemporaneously with the colloquy, Ward, Ward‘s attorney, and the sentencing judge signed a preprinted waiver of rights in connection with the plea hearing. The document included the disposition of each crime charged against Ward and language addressing the constitutional rights Ward waived by pleading guilty. Additionally, the waiver form included specific language concerning the voluntariness of the plea. The relevant portion of the form signed by Ward states:
My guilty plea or admission is not the result of force or threats. It is not the result of assurances or promises, other than any agreed-upon recommendation by the prosecution as set forth in Section I of this form. I have decided to plead guilty, or admit to sufficient facts, voluntarily and freely.
In addition, Ward‘s counsel certified on the form that he had explained to Ward the consequences of his waiver, “so as to enable the defendant to tender his or her plea of guilty or admission knowingly, intelligently and voluntarily.” Lastly, the judge signed the waiver form, attesting that “after an oral colloquy with the defendant, the defendant has knowingly, intelligently and voluntarily waived all of his or her rights as explained during these proceedings and as set forth in this form.” The language of the waiver indicates that
In July 2005, Ward was arrested for selling crack cocaine on several occasions to an undercover Massachusetts state trooper. A federal grand jury returned an indictment with two counts of possession with intent to distribute and distribution of crack cocaine in violation of
In May 2006, prior to being sentenced on these federal charges, Ward filed a motion for a new trial in Springfield District Court on the 2003-2004 state charges,2 claiming that the state trial court had failed to comply with
On August 8, 2006, the state court denied Ward‘s motion and made no findings in support of its decision. The federal district court held a sentencing hearing after the state court‘s denial and concluded that the prior convictions were not impaired by any constitutional violation. The previous convictions triggered a mandatory minimum sentence under
Ward now appeals the sentence, asserting that the district court committed reversible error by denying his motion to exclude the prior state court convictions as the basis for a sentence enhancement pursuant to
II.
The federal enhancement statute upon which the government relied,
Based solely on the state court record of the plea proceeding, with no additional evidence bearing on the voluntariness of Ward‘s plea offered by either party, the district court found that “the record from the transcript [was] more than adequate to support the voluntariness and all of the other criteria that is attached to a plea proceeding.” We review this legal determination de novo.7 See Marshall v. Lonberger, 459 U.S. 422, 431, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983) (“[T]he governing standard as to whether a plea of guilty is voluntary for purposes of the federal Constitution is a question of federal law ... and not a question of fact ....“); see also United States v. Walker, 160 F.3d 1078, 1095-96 (6th Cir.1998) (“[T]he ultimate question whether a plea was voluntary requires a legal conclusion.“).
III.
In Boykin v. Alabama, an African-American defendant was indicted on five counts of common law robbery for a series of armed robberies that occurred in Mobile, Alabama. Three days after Boykin received appointed counsel, he was arraigned and pleaded guilty to all of the charges. He was sentenced to death on each of the counts. The record of the proceeding revealed that “the judge asked no questions of petitioner concerning his plea, and [the] petitioner did not address the
With scant recognition of its dual audience, Boykin simultaneously speaks to judges who accept guilty pleas and judges who later review challenges to the constitutional adequacy of those pleas, either on direct appeal or in collateral proceedings.9 Boykin reminds trial judges that a defendant‘s plea of guilty “must be based on a ‘reliable determination on the voluntariness issue which satisfies the constitutional rights of the defendant.‘” Id. at 242, 89 S.Ct. 1709 (quoting Denno, 378 U.S. at 387, 84 S.Ct. 1774). Boykin reminds judges reviewing challenges to the constitutional adequacy of a plea proceeding that due process requires that the record of the proceeding contain sufficient evidence to support the trial court‘s decision to accept the plea.10 Id. at 243, 89 S.Ct. 1709 (“We cannot presume a waiver ... from a silent record.“); see Brady v. United States, 397 U.S. 742, 747 n. 4, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970) (“The new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily.“).
Given this new element, with its focus on the adequacy of the record that memorializes the plea proceeding, the fact of voluntariness cannot be inferred by a reviewing court from a silent or otherwise inadequate record. Instead, due process requires that there be an “affirmative showing” in the record to support that determination. Boykin, 395 U.S. at 242, 89 S.Ct. 1709; see Hanson v. Phillips, 442 F.3d 789, 801 (2d Cir.2006) (“It may well be that [the defendant], in fact, understood his alternatives, but we are unable to conclude so based on this record, and it is the trial court‘s responsibility to ensure ‘a record adequate for any review that may be later sought.‘” (quoting Boykin, 395 U.S. at 244, 89 S.Ct. 1709)). Indeed, the Supreme Court highlighted in Boykin the
Despite Boykin‘s requirement of an “affirmative showing” in the record that a plea was knowing and voluntary, Boykin does not address the contours of that showing. In arguing that the record of the state plea proceeding was inadequate, Ward takes his cue from Justice Harlan‘s dissent in Boykin. See 395 U.S. at 245, 89 S.Ct. 1709 (“The Court thus in effect fastens upon the States, as a matter of federal constitutional law, the rigid prophylactic requirements of Rule 11 of the Federal Rules of Criminal Procedure.“). He suggests that the contours of the Boykin showing are defined (that is, constitutionalized) by the requirements of
Supreme Court decisions contemporaneous with Boykin preclude any argument that Boykin constitutionalized Rule 11. Two months prior to Boykin, the Supreme Court stated that “the procedure embodied in Rule 11 has not been held to be constitutionally mandated.” McCarthy, 394 U.S. at 465, 89 S.Ct. 1166 (rejecting a guilty plea because a district judge had failed to comply with the requirements of
Even if Boykin did not constitutionalize Rule 11, it unmistakably held that a trial court must produce a record adequate for a reviewing court to conclude that the constitutional requirements of a plea have been met. See Hanson, 442 F.3d at 800 (“While we recognize that no particular form or script is required and that state courts have considerable leeway to establish a record in whatever reasonable manner they see fit, Boykin established that the record of a guilty plea must affirmatively disclose that the defendant made his plea intelligently and voluntarily.“). Such a record may consist of a defendant‘s explicit answers during the plea colloquy to inquiries concerning the defendant‘s understanding of the nature of the charges, the consequences of pleading guilty to the charges, and the rights being waived. That plea colloquy might be supplemented by the completion of a printed waiver form that also addresses the constitutional elements of a plea. A specific script, a set of magic words, or even certain types of inquiries are not required.13 See, e.g., Siegel v. New York, 691 F.2d 620, 626 (2d Cir.1982) (“Rather than mandating a specific catechism, in determining voluntariness and intelligence, due process requires only that the courts provide safeguards sufficient ‘to insure the defendant what is reasonably due in the circumstances.‘” (quoting Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971))); see also Leval, supra, at 1272 n.71 (citing numerous cases for the proposition that Boykin, despite language in the opinion, did not require an oral colloquy to explicitly demonstrate waiver of the three specific constitutional rights addressed in the opinion).
With this understanding of Boykin in mind, we assess whether the district court concluded correctly that the record of Ward‘s state court proceeding was “more than adequate to support” the finding that Ward entered his state plea voluntarily.
IV.
In deciding whether there is an affirmative showing of voluntariness in the state court record of Ward‘s plea, we ex-
The parties acknowledge on appeal that the state court record supports a determination that Ward (1) had an understanding of the charges against him; (2) was aware of the consequences of his guilty plea; and (3) was competent to make such a plea. They contest, however, whether the state court record contains sufficient evidence to permit the district court to find that he entered his guilty plea to the state charges voluntarily, free of coercion, force, threats, or undue promises. Ward contends that the plea was constitutionally deficient because the state court never inquired generally whether his plea was a free and voluntary act, nor specifically whether it was the product of coercion, undue promises, or threats. Additionally, he argues that neither the presence of counsel on his behalf nor the signed waiver form remedy the deficiencies in the plea colloquy. Finally, he claims that his age and unfamiliarity with the plea process provide additional support for vacating the district court‘s sentencing decision, with its reliance on the state court convictions.
The government responds that the district court was correct to reject Ward‘s claim of unconstitutionality. Acknowledging that the state court failed to explicitly address in its colloquy whether Ward‘s plea was a free and voluntary act, the government nonetheless asserts that, based on the totality of the circumstances surrounding the plea, the record was sufficient to support the district court‘s voluntariness determination. Specifically, it argues that the text of the colloquy engaged in by the court and Ward, the presence of adequate counsel on Ward‘s behalf, and the written waiver signed by Ward, his attorney, and the presiding judge, offer adequate support for the district court‘s determination that the plea was entered voluntarily.
We agree with the government that the record supports the district court‘s inference that Ward‘s plea was freely and voluntarily entered. In reaching this conclusion, we rely on the waiver form signed by Ward contemporaneously with the plea proceeding, the factual circumstances surrounding the plea, the text of the colloquy itself, which contains no evidence suggesting that Ward‘s actions were the product of any force, coercion, undue promises, or threats, and Ward‘s failure to supply evidence of such influences to the district court, as he was entitled to do.14
The text of the plea proceeding offers additional support for our conclusion. The record of the plea does not suggest that Ward was impaired in any manner that would impede his ability to understand or respond to the questions posed by the judge. Ward did not hesitate when acknowledging the rights he was waiving or when admitting to the factual basis of the crimes he was charged with committing. He never asked the judge to repeat a question or statement. Also, Ward never halted the colloquy to pose a question to his attorney or seek his advice on any matter. Neither Ward nor his counsel objected or otherwise responded when the trial judge, on all charges, found that Ward had “freely, voluntarily, and willingly waived [his] rights and admitted to sufficient facts.”
Ward cites his age and inexperience in the criminal justice system to support his claim that the plea colloquy was inadequate on the voluntariness issue. These factors would be more relevant if Ward was claiming that the plea colloquy was deficient in its explanation of the nature of the charges, the constitutional rights being waived, or the consequences of the plea. Such explanations at the plea hearing itself are essential to a knowing plea. Age and inexperience seem less relevant to the is-
V.
Boykin requires that the record of a guilty plea contain an affirmative showing that there was a voluntary waiver by the defendant of his constitutional rights. Although compliance with a state version of Rule 11 in a state plea proceeding will almost surely constitute such an affirmative showing, see
Although the plea colloquy between the state trial court and Ward did not contain specific questions addressing the voluntary nature of Ward‘s plea, all of the relevant circumstances—the detailed colloquy between the court and Ward on issues other than voluntariness, the clarity and directness of Ward‘s responses, the involvement of effective counsel on Ward‘s behalf throughout the proceedings, the written waiver signed by Ward, his counsel, and the court, and the failure of Ward to produce any evidence of force, coercion, threats, or undue promises—convince us that the district court ruled correctly that the state court record permits an inference that Ward entered his guilty plea to the state charges voluntarily. Put another way, the record of the state proceedings includes the affirmative showing required by Boykin that Ward‘s plea was entered voluntarily. Given this showing, the district court was entitled to impose a sentence that included the statutory enhancement.
Affirmed.
OBERDORFER, Circuit Judge, concurring.
The majority amply establishes that the state-court record affirmatively showed that Ward‘s plea entered here was voluntary and legal. I write simply to register my discomfort with the heavy sentences of imprisonment (most recently 10 years mandatory) beginning when he was a 17-
Notes
A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.