Unpublished Disposition, 915 F.2d 1581 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 915 F.2d 1581 (9th Cir. 1990)

Joseph Frank TOCCO, Petitioner-Appellant,v.Sam LEWIS, Attorney General of the State of Arizona,Respondents-Appellees.

No. 89-15784.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 2, 1990.* Decided Oct. 10, 1990.

Before GOODWIN, Chief Judge, and JAMES R. BROWNING and RYMER, Circuit Judges.


Joseph Frank Tocco, an Arizona state prisoner, appeals the district court's dismissal of his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C. § 2253. We review de novo, Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989), and affirm.

* Tocco contends that his guilty plea was not knowing and voluntary because his attorneys misinformed him of (1) the sentence he would receive and (2) the potential civil consequences of his plea. These contentions lack merit.

To comport with due process, a guilty plea must be voluntary and intelligent. Boykin v. Alabama, 395 U.S. 238, 242-43, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). The defendant must be aware of the possible punishment he faces. Id. at 243-44. In assessing the voluntariness of a guilty plea, statements made by the defendant contemporaneously with his plea should be accorded great weight and carry a strong presumption of verity. Chizen v. Hunter, 809 F.2d 560, 562 (9th Cir. 1986) (citing Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977)). A state court's factual determinations that are fairly supported by the record are entitled to a presumption of correctness in a federal habeas corpus proceeding. Evans v. Raines, 800 F.2d 884, 886 (9th Cir. 1986) (citing 28 U.S.C. § 2254(d); Sumner v. Mata, 449 U.S. 539, 101 S. Ct. 764, 66 L. Ed. 2d 722 (1981)).

Here, Tocco alleges that Santos Volpe, his out-of-state counsel, prepared a chart of possible sentences that contained numerous errors and that Tom Henze, his local counsel, failed to review this chart for accuracy. The chart showed a possible maximum sentence of 20 years, a presumptive sentence of 11.25 years, and a minimum sentence of 10 years. Tocco argues that based on this chart and other discussions with Volpe, Tocco believed that under the plea agreement he would receive at most the presumptive sentence of 11.25 years.

After an evidentiary hearing, however, the state trial court determined that Tocco was aware that he could receive consecutive sentences up to a maximum of 20 years imprisonment. The state court's finding is entitled to a presumption of correctness because it is supported by the record. See Evans, 800 F.2d at 886; 28 U.S.C. § 2254(d). First, attorney Henze testified that (1) he had discussed the possibility of consecutive sentences with Tocco and (2) he and Tocco had gone over the plea agreements "paragraph by paragraph."1  Moreover, before accepting his guilty plea, the trial judge informed Tocco that he faced a maximum sentence of 20 years. Tocco responded that he understood the possible sentence and further stated that no promises had been made to him regarding the sentence he would receive. Tocco's statements at the plea hearing are accorded great weight and carry a strong presumption of verity. See Chizen, 809 F.2d at 562. Because the record establishes that at the time he entered his plea, Tocco was aware that he faced a maximum sentence of 20 years and acknowledged that no promises as to the length of his sentence had been made, his plea was voluntary and intelligent. See Boykin, 395 U.S. at 242-44.

Tocco also contends that his plea was not knowing and voluntary because he was not adequately informed of the consequences his plea agreements could have in relation to an earlier civil racketeering action brought by the state against him and his wife. In particular, Tocco contends that he was not informed of the specific dollar amount of damages, fees, and costs he would be liable for in the civil action, and therefore he was not aware of the economic consequences of his guilty pleas.

Tocco's contentions fail because the record establishes that he was aware that under the plea agreements he faced civil penalties and possible forfeiture of his property pursuant to Arizona's civil racketeering statute and other forfeiture statutes. Indeed, Tocco's plea agreements contained express language regarding such civil penalties and the possible forfeiture effects of the pleas. Moreover, the record shows that (1) counsel Henze explained each paragraph of the plea agreement to Tocco and (2) the language regarding the civil consequences of the plea was the result of bargaining by Tocco's counsel at his request. Accordingly, the state appellate court's finding that Tocco was informed of the potential civil consequences of his plea is supported by the record and is entitled to a presumption of correctness. See Evans, 800 F.2d at 886; 28 U.S.C. § 2254(d).2 


Tocco contends that his guilty plea was not voluntary because one of his attorneys subjected him to psychological pressure to plead guilty instead of going to trial. This contention is meritless.

To determine the voluntariness of a guilty plea, we examine the totality of the circumstances. Brady v. United States, 397 U.S. 742, 749, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970). "Acts that might constitute coercion if done by the court or a prosecutor may not rise to that level if done by others. Mere advice or strong urging by third parties to plead guilty based on the strength of the state's case does not constitute undue coercion." Iaea v. Sunn, 800 F.2d 861, 867 (9th Cir. 1986) (citations omitted).

Here, Tocco argues that attorney Volpe exerted undue psychological pressure on him to plead guilty by (1) informing Tocco that he would be unable to represent him at trial on certain dates due to previously scheduled commitments, and (2) telling Tocco that the ongoing criminal proceedings were hurting his family and ruining his daughters' lives, and that although his family would not directly admit their distress to Tocco, they were losing their resolve to support his defense. Tocco does not dispute the accuracy of this information. Accordingly, as the district court correctly ruled, the fact that Volpe told Tocco about potential scheduling conflicts and relayed the actual misgivings of Tocco's family about the case does not constitute undue coercion. See id.


Tocco contends that he received ineffective assistance of counsel and that but for his counsels' deficient performance, he would not have pleaded guilty. This contention lacks merit.

To demonstrate ineffective assistance of counsel, a defendant must show that his counsel's performance was both deficient and prejudicial to his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A mere inaccurate prediction of the sentence a defendant might receive upon pleading guilty does not constitute ineffective assistance of counsel. Iaea, 800 F.2d at 865.

Here, Tocco argues that his counsel misinformed him of the possible sentence he faced, failed to adequately inform him of the civil consequences of his plea, and subjected him to undue psychological pressure. As discussed above, the record does not support any of these contentions. Accordingly, Tocco's claim of ineffective assistance of counsel fails because he has not shown that his counsels' performance was deficient. See Strickland, 466 U.S. at 687. Moreover, attorney Volpe's inaccurate prediction that Tocco would receive the presumptive sentence of 11.25 years does not rise to the level of a gross mischaracterization of the likely outcome of the case and thus does not constitute ineffective assistance of counsel. See Iaea, 800 F.2d at 865.


Tocco contends that the state trial judge's refusal to recuse himself before the hearing on his motion to withdraw the guilty pleas deprived him of due process, the right to call witnesses, and the right to an impartial tribunal. This contention is meritless.

Tocco alleges that he moved to disqualify the trial judge because there was evidence that the judge had participated improperly in the plea negotiations. Therefore, Tocco argues that (1) he had a right to call the judge as a witness at the hearing on the motion to withdraw the plea, and (2) because he had participated in the plea negotiations, the judge was biased against Tocco's motion to withdraw the plea. This argument fails because the record does not support Tocco's allegation that the trial judge improperly participated in or influenced the plea negotiations. Accordingly, the district court correctly ruled that the trial judge's denial of Tocco's motion to recuse himself did not violate any of Tocco's constitutional rights.



The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


Although Volpe's testimony at the evidentiary hearing at times conflicted with that of Henze, the state trial court accorded greater weight to Henze's testimony. The relative credibility of the witnesses was a determination properly made by the trial court. See Evans, 800 F.2d at 886


Tocco cites no authority for the proposition that the trial judge in the criminal actions was required to inform him of the specific dollar amount of the penalties he faced in the civil action. Indeed, it would have been impossible for the judge who took Tocco's guilty plea to determine a specific dollar amount because under Arizona law, the amount of damages, fees, and costs are determined in a separate civil proceeding