Unpublished Disposition, 914 F.2d 263 (9th Cir. 1990)

No. 89-35454.

United States Court of Appeals, Ninth Circuit.

Before KOELSCH, CHOY and BEEZER Circuit Judges.

MEMORANDUM^** 

James Max Stevenson, an Oregon State prisoner, appeals the judgment of the district court dismissing his petition for a writ of habeas corpus.

His several grounds for reversal will be discussed seriatim.

1. That the district court erred in finding he, Stevenson, knowingly and voluntarily agreed to a "stipulated facts" trial.

The state court record flatly contradicts this contention. It affirmatively shows that Stevenson, upon being arraigned, was carefully, correctly and at length advised by the trial judge of the nature of such procedure, how it would differ from the full-blown conventional trial, what rights Stevenson was relinquishing and the maximum penalty should the finding be "guilty." And upon concluding this explanation the trial judge asked, "Do you understand?" Stevenson replied "yes".

In short, the record is clear that the district court's explanation comports with the "prophylactic rule" this court announced in Quiroz v. Wawrzaszek, 749 F.2d 1375, 1377 (9th Cir. 1984), cert. denied, 471 U.S. 1055 (1985).

2. That the trial court merely advised Stevenson of the maximum permissible penalty (i.e., "20 years imprisonment or a fine of $100,000.00, or both") should he be found guilty, without explaining what options were available to the court.

He relies upon the proposition announced in plea-of-guilty cases to the effect that an accused is entitled to pre-plea advice from the court on the subject of consequences of a plea.

It is unnecessary here to decide whether a consent to submit on stipulated facts is the functional equivalent of a guilty plea. As stated in Quiroz: " [w]ithout regard to the status of a submission as a matter of law, we agree that the due process protections for the waiver of constitutional rights apply equally to the submission procedure used here as they would to the entry of a plea of guilty." Id. at 1377. The rule is settled that Federal due process requires that an accused be made fully aware of the direct consequences of a guilty plea. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir. 1986) (citing Brady v. United States, 397 U.S. 742, 755 (1970)), cert. denied, 484 U.S. 870 (1987).

However, it should be noted that "consequences" is not all inclusive. As pointed out by this court: " ' [a] defendant is entitled to be informed of the direct consequences of the plea,' although it is not necessary to inform him of 'all possible collateral consequences.' " United States v. Wills, 881 F.2d 823, 825 (9th Cir. 1989) (quoting Torrey v. Estelle, 842 F.2d 234, 235 (9th Cir. 1988)). If the matter is discretionary, it is a "collateral," not a "direct" consequence. Wills, supra, at 825.

The supposed deficiency urged by Stevenson falls in the "collateral-consequence" category.

Stevenson was sentenced to a term of imprisonment not to exceed 20 years. And, pursuant to Or.Rev.Stat. Sec. 144.110, the trial court imposed a mandatory minimum term of actual imprisonment of ten years. Section 144.110(i) provides in part that in any felony case, the court may impose a minimum term of imprisonment of up to one-half of the sentence it imposes. Thus the mandatory minimum sentence given Stevenson was discretionary and a "collateral consequence." The judge was not required to give it, indeed he could not have forecasted what discretionary action he might take.

3. That Stevenson's trial counsel was ineffective.

Stevenson's mere assertion is not evidence; the record does not show any act of failure to act by counsel that would permit, let alone require, a finding that his trial counsel rendered anything other than reasonably effective assistance. See Quiroz, supra, at 1378.

4. Lastly, that the prosecutor violated the plea agreement.

Here again the record lacks any evidence to refute the lower court's findings to the contrary. The prosecutor's statements, although not couched precisely in the same verbiage as the stipulation, did not depart from it as to any material matter or to any significant degree.

Judgment affirmed.