Vittitoe v. State

For the Court:

Our law provides that the trial judge must advise one wishing to plead guilty to a criminal offense of the minimum mandatory penalty provided by law for the charge at issue. This appeal presents the question whether compliance with that rule is a requisite to a valid and enforceable plea of guilty.

The question is presented by Joseph D. Vittitoe who on May 31, 1983, in the Circuit Court of Coahoma County, Mississippi, entered a plea of guilty to a charge of armed robbery. Upon his plea the Court adjudged Vittitoe guilty and sentenced him to a term of twenty-five years imprisonment. Vitti-toe has applied for post-conviction relief, Miss.Code Ann. § 99-39-5(l)(f) (Supp.1989) and states that, when he entered his plea,

I was expecting the court to be lenient since I was a first offender and with no prior criminal record, and I was expecting probation or shock probation of maybe one or two years.

Mississippi law requires a minimum sentence of three years upon conviction of the crime of armed robbery. Miss.Code Ann. § 97-3-79 (Miss.1989); see Malone v. State, 486 So.2d 367, 369 (Miss.1986) (“three years imprisonment is the most lenient lawful sentence for armed robbery”).

At his post-conviction hearing Vittitoe testified that, had he known of this fact, he would not have pleaded guilty.

Q. Were you aware at the time you entered the guilty plea of the mandatory three-year sentence that accompanies the charge of armed robbery?

A. No, sir.

Q. If you had been aware of that mandatory term of three years, would that have affected your decision in whether or not you pled guilty?

A. Yes, sir.

Q. And, what effect, if any, would it have had?

A. I would not have made the plea of guilty, and I would have exercised my constitutional right to be tried before a jury of my peers.

We may not here invoke our common experience that persons in custody and seeking post-conviction relief often present quite fanciful views of the facts, for nothing in the record suggests Vittitoe’s testimony is devoid of candor.

Before a person may plead guilty to a felony he must be informed of his rights, the nature and consequences of the act he contemplates, and any other relevant facts and circumstances, and, thereafter, voluntarily enter the plea. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). The question necessarily involves issues of fact. Sanders v. State, 440 So.2d 278, 283 (Miss.1983). Over the years the law has provided a number of criteria’ for judging charges of involuntariness, such as the quality of the advice of counsel, Leatherwood v. State, 539 So.2d 1378, 1388 (Miss.1989).

Rule 3.03, Miss.Unif.Crim.R.Cir.Ct. Prac. (1979, as amended), supplies such a benchmark. That rule provides, in relevant part, as follows:

Advice to the Defendant. When the defendant is arraigned and wishes to plead guilty to the offense charged, it is the duty of the trial court to address the defendant personally and to inquire and determine:

B. That the accused understands the nature and consequences of his plea, and the maximum and minimum penalties provided by law; ....

In the face of Vittitoe’s charge that he had not been advised of the mandatory three-year minimum sentence, the Circuit Court made the following statement:

BY THE COURT:

All right, sir. The Court does not argue with that, and for the record the Court will make a finding at this time that the movant was not advised of the minimum sentence he could receive, and he was not advised that he would servé his sentence without probation or parole for ten years. That is, by the Court itself.

BY MR. WEBSTER: [Counsel for Vitti-toe]

I understand that to be a finding of fact by the Court, those two items?

BY THE COURT:

That is correct.

A canvas of state law authority reveals no fewer than two dozen eases holding that guilty pleas made with ignorance of a minimum or mandatory minimum sentence are unenforceable. Representative of these cases is Perez v. State, 449 So.2d 407 (Fla.App.1984), which states:

In particular, the record reflects that the defendant was not advised ... on the possible minimum mandatory penalties which could be imposed. Such advice is necessary in order that a guilty or nolo contendere plea may be intelligently and voluntarily entered. See State v. Wilson, 395 So.2d 520 (Fla.1981).

449 So.2d at 408.

In this circumstance, many state courts presume that the omission resulted in prejudice to the accused; that is, he would not have pled guilty if he had known of the mandatory minimum sentence. See, e.g., People v. Evans, 132 Mich.App. 239, 347 N.W.2d 28, 29 (1984) (“failure to inform a defendant of a mandatory minimum sentence requires reversal”). The case of State v. Hazel, 275 S.C. 392, 271 S.E.2d 602, 603 (1980) is illustrative of this approach:

It is elementary that in order for a defendant to knowingly and voluntarily plead guilty, he must have a full understanding of the consequences of his plea ... Upon the facts of this case, appellant’s plea was not knowing because it was entered without an understanding of the mandatory punishment for the offense to which she was pleading.

Most of these cases recognize that any claim of prejudice may be rebutted by evidence that the defense counsel informed the accused of any mandatory minimum penalty, Underwood v. State, 214 Kan. 633, 522 P.2d 457, 458 (1974), or that the accused was apprised of the range of penalties at a prior hearing. People v. Ray, 130 Ill.App.3d 362, 84 Ill.Dec. 167, 170, 471 N.E.2d 933, 936 (1984).

Here we have no need of resort to presumptions. Without contradiction the Circuit Court did not advise Vittitoe of the mandatory minimum sentence, nor is there evidence that he knew of it from any other source. What we have is a first offender who says he did not know of the three-year mandatory minimum and nothing in the way of rebuttal. In the ease before the Court today, the Circuit Court reviewing the plea found as a fact that, when accepting Vittitoe’s guilty plea, it did not inform him of the mandatory minimum sentence. Additionally, however, when reviewing Vit-titoe’s motion to withdraw his plea, the Court found as a fact that Vittitoe was indeed ignorant of the mandatory minimum sentence at the time he pled guilty.

The Circuit Court nevertheless held “the failure to inform movant of the minimum sentence before or after the time of the entrance of his guilty plea does not rise to the level of a constitutional violation ...” It is true that the voluntariness rule is of constitutional origins, Boykin v. Alabama, supra, but this hardly suggests that all criteria for voluntariness must similarly be of constitutional proportions. Rule 3.03 is a valid rule of law, emanating from a governmental source empowered to enforce it. That Rule 3.03 may not be of constitutional status hardly renders it less enforceable. It is one of this state’s important expressions of what an accused should know before he waives trial and pleads guilty. It forms the context for our consideration whether Vittitoe’s plea of guilty was freely and voluntarily given. See Coleman v. State, 483 So.2d 680 (Miss.1986); Sanders v. State, 440 So.2d 278 (Miss.1983); Rogers v. State, 243 Miss. 219, 136 So.2d 331 (1962).

We consider only the plea process. Cf. Leatherwood v. State, 539 So.2d 1378, 1384-85 (Miss.1989). Whether Vittitoe may have been found guilty had he gone to trial and what sentence may thereupon have been imposed are matters legally beyond our ken. Because Vittitoe was ignorant of the mandatory minimum sentence for the charge to which he was pleading and stated that he would not have pled had he known this information, it cannot be said that his plea was “voluntarily and intelligently made.” This being the case, Vittitoe may of right withdraw his plea of guilty, enter a plea of not guilty and be given a trial.

In sum, we hold that Vittitoe has established that he was not advised of the minimum penalty as required by Rule 3.03(3)(B). This fact is established as a matter of law by more than a mere preponderance of the evidence. See McClendon v. State, 539 So.2d 1375, 1378 (Miss.1989); Leatherwood v. State, 539 So.2d 1378, 1381 n. 4 (Miss.1989). The Circuit Court’s failure to observe the rule’s mandate at the plea hearing renders Vittitoe’s plea involuntary as a matter of law. The Circuit Court erred in the proceedings below when it refused to vacate Vittitoe’s plea of guilty. We reverse the judgment below, restore Vittitoe’s plea of not guilty to the indictment for armed robbery, and remand for such further proceedings as may be appropriate.

DENIAL OF MOTION TO SET ASIDE GUILTY PLEAS REVERSED, RENDERED AND REMANDED.

PRATHER, SULLIVAN, ANDERSON and BLASS, JJ., concur.

HAWKINS, P.J., dissents with separate written opinion, joined by ROY NOBLE LEE, C.J., and DAN M. LEE, P.J.

PITTMAN, J., not participating.

. Carter v. State, 291 Ala. 83, 277 So.2d 896, 897 (1973); State v. Price, 715 P.2d 1183, 1186 (Alaska App.1986); State v. Escalante, 148 Ariz. 298, 714 P.2d 468, 471 (App.1986); McDaniel v. State, 288 Ark. 629, 708 S.W.2d 613, 615 (1986); In re Birch, 10 Cal.3d 314, 110 Cal.Rptr. 212, 216, 515 P.2d 12, 16 (1973); People v. Chippewa, 713 P.2d 1311, 1313-14 (Colo.App.1985); D’Amico v. Manson, 193 Conn. 144, 476 A.2d 543, 550 (1984); Gaston v. United States, 535 A.2d 893, 896-97 (D.C.App.1988); Wells v. State, 396 A.2d 161, 162 (Del.1978); Perez v. State, 449 So.2d 407, 408 (FIa.App.1984); State v. Williams, 68 Haw. 498, 720 P.2d 1010, 1012 cert. den., 479 U.S. 933, 107 S.Ct. 406, 93 L.Ed.2d 358 (1986); People v. Louderback, 137 Ill.App.3d 432, 91 Ill.Dec. 944, 946, 484 N.E.2d 503, 505 (1985); Jones v. State, 478 N.E.2d 676, 678 (Ind.1985); State v. Sisco, 169 N.W.2d 542, 547 (Iowa 1969); Noble v. State, 240 Kan. 162, 727 P.2d 473, 476 (1986); People v. Jones, 410 Mich. 407, 301 N.W.2d 822, 824 (1981); State v. Trott, 338 N.W.2d 248, 253 (Minn.1983); Griffin v. State, 684 S.W.2d 425, 427 (Mo.App.1984); State v. Cavanaugh, 207 Mont. 237, 673 P.2d 482, 484 (1983); State v. Clark, 217 Neb. 417, 350 N.W.2d 521, 524-25 (1984); White v. State, 99 Nev. 760, 670 P.2d 576, 577 (1983); State v. Regan, 209 N.J.Super. 596, 508 A.2d 1149, 1155 (1986); State v. Montler, 85 N.M. 60, 509 P.2d 252, 253 (1973); Commonwealth v. Reagan, 348 Pa.Super. 589, 502 A.2d 702, 707 (1985); State v. Hazel, 275 S.C. 392, 271 S.E.2d 602, 603 (1980); Ex Parte Smith, 678 S.W.2d 78, 79 (Tex.Crim.App.1984); State v. Harris, 41 Wash.App. 561, 705 P.2d 280, 282 (1985).