BUTZNER, Circuit Judge:
Ray S. Bailey was sentenced to life imprisonment in 1936 upon a plea of guilty to murder. Now Bailey challenges the validity of his plea, which was entered after the chief of police and the state's solicitor promised in writing they would recommend parole or pardon after Bailey had served a term not exceeding ten years. We hold that Bailey's arraignment was defective and the record fails to establish he understood the consequences of his plea. We remand the case for proceedings consistent with this opinion.
Bailey applied for a writ of habeas corpus in 1964 in the Court of Common Pleas for Richland County, South Carolina.
A policeman, attempting to thwart a bank robbery, was killed in 1932 in Greenville, South Carolina. A few days later Bailey was charged with murder. Following an unsuccessful fight against extradition from North Carolina,
The mainstay of the prosecution's case was a witness named Corea, who identified Bailey as the murderer of the policeman. Corea was sentenced to prison for robbery and refused to testify unless he was pardoned. The South Carolina solicitor who was prosecuting the case knew that another eyewitness was unable to identify Bailey positively. He also knew a number of witnesses would support Bailey's alibi. The solicitor suggested to Bailey's lawyer that Bailey plead guilty "with a recommendation to mercy."
The defense attorney advised Bailey that if he did not participate in the shooting he should not plead guilty. The attorney explained that the plea arrangement meant a life sentence would be imposed, and it did not mean the Governor would have to grant parole or pardon. He added that ordinarily the Governor would give great weight to the recommendation of the solicitor and the chief of police.
Bailey withdrew his original plea and pleaded guilty with recommendation to mercy. He was sentenced to life imprisonment. No one mentioned the agreement. No inquiry was made to determine whether Bailey's plea was voluntary or whether he understood the charges against him and the consequences of his plea. In the state habeas hearing the solicitor testified that he believed the trial judge was not aware of the agreement.
Bailey's lawyer placed the statement in his safety deposit box. At the expiration of the ten year period, the solicitor, the chief of police, and Bailey's attorney unsuccessfully asked the Governor and the State Parole Board to pardon or parole Bailey.
At the state habeas corpus hearing, Bailey testified that he was not in Greenville at the time the police officer was killed, and that at first he refused to plead guilty. He agreed to change his plea because he was certain any agreement the solicitor made would be carried out. He testified that there wasn't any doubt in his mind that he would be released in ten years.
Bailey was not alone in testifying he believed he would serve only ten years. The assistant solicitor, who investigated the case and was present at the arraignment, testified that "* * * when that plea was entered by that boy, at that time, I was convinced that, after service of these ten years, without doing something in the penitentiary to prevent it, he would have been released. I was convinced of it and I am sure that everybody in the courtroom that knew anything about it was."
Bailey raises several questions about plea bargaining. He does not urge the practice in itself is unconstitutional.
The state habeas judge found Bailey believed he would serve not more than ten years and that the agreement leading to his change of plea "vitiated the voluntary nature of the guilty plea." The Supreme Court of South Carolina concluded this judgment was erroneous.
In Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed. 2d 473 (1962), the Court held:
The voluntariness of Bailey's plea does not depend upon whether he was the victim of a false promise. The question remains: Did the promise, even if fulfilled,
Bailey contends he was denied due process of law because the court did not advise him of the consequences of his plea. In examining whether Bailey fully understood the consequences of his plea, we limit ourselves to the direct consequences — the length of the sentence to be served.
In Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927), the Court said:
No particular form or ritual is required, but it must appear that the defendant understood the consequences of his plea.
Ordinarily there is no great difficulty in ascertaining that the defendant understood the consequences of his plea even when the parties have engaged in plea bargaining. The bargain itself generally is laid before the court through the recommendation and motions of the prosecuting attorney.
The defect in Bailey's arraignment lies in the fact that no one — court or counsel — ascertained that Bailey understood the consequences of his plea. Nevertheless, if Bailey in fact understood, the error was harmless. Gundlach v. United States, 262 F.2d 72 (4th Cir. 1958), cert. denied 360 U.S. 904, 79 S.Ct. 1283, 3 L.Ed.2d 1255 (1959). The state, however, has the burden of proving harmless error. Cf. Munich v. United States, 337 F.2d 356, 360 (9th Cir. 1964).
The result does not depend upon the prisoner's subjective testimony alone. The issue is one of fact, which must be resolved by an examination of "reasonable inferences to be drawn from all the surrounding facts and circumstances."
Aside from Bailey, the only witnesses who knew about the agreement at the time it was made were the solicitor, the assistant solicitor, and Bailey's attorney. The solicitor never discussed the matter with Bailey and consequently could offer no testimony on this issue. The assistant solicitor testified that at the time of the arraignment he was convinced, barring misbehavior, Bailey would be released after ten years. Thus, he tends to corroborate Bailey. The only witness who actually discussed with Bailey the meaning of the agreement was Bailey's attorney. With regard to Bailey's claim, "I accepted a life sentence with the distinct understanding that I would be free in ten years," Bailey's attorney testified, "He may have understood it that way * * * even though I tried to explain to him the circumstances of it, not being a lawyer and not being familiar with legalities and things of that kind. It's possible that Mr. Bailey felt that that would happen." This evidence does not establish whether the state's version or Bailey's version of the plea agreement should be accepted. The evidence demonstrates, however, that the state has not carried its burden of proving harmless error by showing Bailey understood what the state claims to be the consequences of his plea.
Under familiar principles of due process, a guilty plea cannot be accepted unless the defendant understands its consequences. At the arraignment the court made no effort to ascertain what Bailey understood, either through its own efforts or through counsel, and the state has failed to show this error was harmless. The judgment of the district court is reversed and this case is remanded for the issuance of a writ of habeas corpus. Execution of the writ may be stayed for a reasonable time to permit the State of South Carolina to to retry Bailey if it be so advised.
Reversed and remanded.
A comprehensive review of authorities criticizing or supporting plea bargaining is contained in Commonwealth ex rel. Kerekes v. Maroney, 423 Pa. 337, 223 A.2d 699 (1966). The practice, when restricted by prudent safeguards, is approved in Institute of Judicial Administration, ABA, Standards Relating to Pleas of Guilty, Part III (tentative draft 1967); Note, Guilty Plea Bargaining: Compromises by Prosecutors to Secure Guilty Pleas, 112 U.Pa.L.Rev. 865 (1964). The practice is criticized in Curlee, Criminal Law and Procedure, 1966-67 Survey of South Carolina Law, 19 S.C.L.Rev. 30, 34 (1967).
We decline to follow McGrady v. Cunningham, 296 F.2d 600, 96 A.L.R.2d 1286 (4th Cir. 1961), cert. denied, 369 U.S. 855, 82 S.Ct. 944, 8 L.Ed.2d 14 (1962), Now, Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), would require a plenary hearing upon the petitioner's allegations.