Respondent was indicated for first-degree murder, but, by
agreement with the prosecution and on counsel's advice, respondent
pleaded guilty to second-degree murder and was sentenced.
Subsequently, after exhausting his state remedies in an
unsuccessful attempt to have his conviction vacated on the ground
that his guilty plea was involuntary, respondent filed a habeas
corpus petition in Federal District Court, alleging that his guilty
plea was involuntary because, inter alia,
he was not aware
that intent to cause death was an element of second-degree murder.
The District Court ultimately heard the testimony of several
witnesses, including respondent and his defense counsel in the
original prosecution; and the transcript of the relevant state
court proceedings and certain psychological evaluations of
respondent, who was substantially below average intelligence, were
made part of the record. On the basis of the evidence thus
developed, the District Court found that respondent had not been
advised by counsel or the state court that an intent to cause death
was an essential element of second-degree murder, and, based on
this finding, held that the guilty plea was involuntary, and had to
be set aside. The Court of Appeals affirmed.
Since respondent did not receive adequate notice
of the offense to which he pleaded guilty, his plea was
involuntary, and the judgment of conviction was entered without due
process of law. The plea could not be voluntary in the sense that
it constituted an intelligent admission that he committed the
offense unless respondent received "real notice of the true nature
of the charge against him, the first and most universally
recognized requirement of due process." Smith v. O'Grady,
312 U. S. 329
312 U. S. 334
Where the record discloses that defense counsel did not purport to
stipulate that respondent had the requisite intent or explain to
him that his plea would be admission of that fact, and he made no
factual statement or admission necessarily implying that he had
such intent, it is impossible
Page 426 U. S. 638
to conclude that his plea to the unexplained charge of
second-degree murder was voluntary. Pp. 426 U. S.
516 F.2d 897, affirmed.
STEVENS, J., delivered the opinion of the Court, in which
BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN, and POWELL, JJ.,
joined. WHITE, J., filed a concurring opinion, in which STEWART,
BLACKMUN, and POWELL, JJ., joined, post,
p. 426 U. S. 647
REHNQUIST, J., filed a dissenting opinion, in which BURGER, C.J.,
p. 426 U. S.
MR. JUSTICE STEVENS delivered the opinion of the Court.
The question presented is whether a defendant may enter a
voluntary plea of guilty to a charge of second-degree murder
without being informed that intent to cause the death of his victim
was an element of the offense.
The case arises out of a collateral attack on a judgment entered
by a state trial court in Fulton County, N.Y., in 1965. Respondent,
having been indicated on a charge of first-degree murder, pleaded
guilty to second-degree murder and was sentenced to an
indeterminate term of imprisonment of 25 years to life. He did not
In 1970, respondent initiated proceedings in the New York courts
seeking to have his conviction vacated on
Page 426 U. S. 639
the ground that his plea of guilty was involuntary. [Footnote 1
] The state courts denied
relief on the basis of the written record. [Footnote 2
] Having exhausted his state remedies,
] in 1973,
respondent filed a petition for writ of habeas corpus in the United
States District Court for the Northern District of New York.
] He alleged that
his guilty plea was involuntary because he was not aware (1) of the
sentence that might be imposed upon conviction of second-degree
murder, or (2) that intent to cause death was an element of the
offense. Based on the state court record, the Federal District
Court denied relief. The Court of Appeals reversed summarily and
directed the District Court
"to conduct an evidentiary hearing on the issues raised by
petitioner, including whether, at the time of his entry of his
guilty plea, he was aware that intent was an essential element of
the crime and was advised of the scope of the punishment that might
Upon remand the District Judge heard the testimony of several
witnesses including respondent, the two lawyers who had represented
him in 1965, the prosecutor,
Page 426 U. S. 640
and respondent's mother. In addition, the transcript of the
relevant state court proceedings and certain psychological
evaluations of respondent were made a part of the record.
At the conclusion of the hearing, the District Court made only
two specific findings of fact. [Footnote 5
] First, contrary to respondent's testimony, the
court expressly found that he was advised that a 25-year sentence
would be imposed if he pleaded guilty. Second, the court found that
"was not advised by counsel or court, at any time, that an
intent to cause the death or a design to effect the death of the
victim was an essential element of Murder 2nd degree."
On the basis of the latter finding, the District Court held "as
a matter of law" that the plea of guilty was involuntary and had to
be set aside. [Footnote 6
Page 426 U. S. 641
This holding was affirmed, without opinion, by the Court of
Appeals. [Footnote 7
Before addressing the question whether the District Court
correctly held the plea invalid as a matter of law, we review some
of the facts developed at the evidentiary hearing.
On April 6, 1965, respondent killed Mrs. Ada Francisco in her
When he was in seventh grade, respondent was committed to the
Rome State School for Mental Defectives where he was classified as
"retarded." He was released to become a farm laborer and ultimately
went to work on Mrs. Francisco's farm. Following an argument, she
threatened to return him to state custody. He then decided to
abscond. During the night he entered Mrs. Francisco's bedroom with
a knife, intending to collect his earned wages before leaving; she
awoke, began to scream, and he stabbed her. [Footnote 8
] He took a small amount of money, fled
in her car, and became involved in an accident about 80 miles away.
The knife was found in the glove compartment of her car. He was
promptly arrested and made a statement to the police. He was
Page 426 U. S. 642
then 19 years old, and substantially below average intelligence.
Respondent was indicated for first-degree murder and arraigned
on April 15, 1965. Two concededly competent attorneys were
appointed to represent him. The indictment, which charged that he
"willfully" stabbed his victim, was read in open court. His lawyers
requested, and were granted, access to his written statement and to
earlier psychiatric reports. A new psychiatric examination was
requested and ordered.
Respondent was found competent to stand trial. Defense counsel
held a series of conferences with the prosecutors, with the
respondent, and with members of his family. The lawyers "thought
manslaughter first would satisfy the needs of justice." [Footnote 10
] They therefore
endeavored to have the charge reduced to manslaughter, but the
prosecution would agree to nothing less than second-degree murder
and a minimum sentence of 25 years. The lawyers gave respondent
advice about the different sentences which could be imposed for the
different offenses, but, as the District Court found, did not
explain the required element of intent.
On June 8, 1965, respondent appeared in court with his attorneys
and entered a plea of guilty to murder in the second degree in full
satisfaction of the first-degree murder charge made in the
indictment. In direct colloquy with the trial judge, respondent
stated that his plea was based on the advice of his attorneys, that
he understood he was accused of killing Mrs. Francisco in Fulton
County, that he was waiving his right to a jury trial, and that he
would be sent to prison. There was no discussion of the elements of
the offense of second-degree
Page 426 U. S. 643
murder, no indication that the nature of the offense had ever
been discussed with respondent, and no reference of any kind to the
requirement of intent to cause the death of the victim.
At the sentencing hearing a week later, his lawyers made a
statement explaining his version of the offense, particularly
noting that respondent "meant no harm to that lady" when he entered
her room with the knife. [Footnote 11
] The prosecutor disputed defense counsel's
version of the matter, but did not discuss it in detail. After
studying the probation officer's report, the trial judge pronounced
At the evidentiary hearing in the Federal District Court,
respondent testified that he would not have pleaded guilty if he
had known that an intent to cause
Page 426 U. S. 644
the death of his victim was an element of the offense of
second-degree murder. The District Judge did not indicate whether
or not he credited this testimony. [Footnote 12
Petitioner contends that the District Court applied an
unrealistically rigid rule of law. Instead of testing the
voluntariness of a plea by determining whether a ritualistic litany
of the formal legal elements of an offense was read to the
defendant, petitioner argues that the court should examine the
totality of the circumstances and determine whether the substance
of the charge, as opposed to its technical elements, was conveyed
to the accused. We do not disagree with the thrust of petitioner's
argument, but we are persuaded that, even under the test which he
espouses, this judgment finding respondent guilty of second-degree
murder was defective.
We assume, as petitioner argues, that the prosecutor had
overwhelming evidence of guilt available. We also accept
petitioner's characterization of the competence of respondent's
counsel and of the wisdom of their advice to plead guilty to a
charge of second-degree murder. Nevertheless, such a plea cannot
support a judgment of
Page 426 U. S. 645
guilt unless it was voluntary in a constitutional sense.
] And clearly
the plea could not be voluntary in the sense that it constituted an
intelligent admission that he committed the offense unless the
defendant received "real notice of the true nature of the charge
against him, the first and most universally recognized requirement
of due process." Smith v. O'Grady, 312 U.
, 312 U. S.
The charge of second-degree murder was never formally made. Had
it been made, it necessarily would have included a charge that
respondent's assault was "committed with a design to effect the
death of the person killed." [Footnote 14
] That element of the offense might have been
proved by the objective evidence even if respondent's actual state
of mind was consistent with innocence [Footnote 15
] or manslaughter. [Footnote 16
] But even if such a design to effect
death would almost inevitably have been inferred from evidence that
respondent repeatedly stabbed Mrs. Francisco, it is nevertheless
also true that a jury
Page 426 U. S. 646
would not have been required to draw that inference. [Footnote 17
] The jury would have
been entitled to accept defense counsel's appraisal of the incident
as involving only manslaughter in the first degree. Therefore, an
admission by respondent that he killed Mrs. Francisco does not
necessarily also admit that he was guilty of second-degree
There is nothing in this record that can serve as a substitute
for either a finding after trial, or a voluntary admission, that
respondent had the requisite intent. Defense counsel did not
purport to stipulate to that fact; they did not explain to him that
his plea would be an admission of that fact; and he made no factual
statement or admission necessarily implying that he had such
intent. In these circumstances, it is impossible to conclude that
his plea to the unexplained charge of second-degree murder was
Petitioner argues that affirmance of the Court of Appeals will
invite countless collateral attacks on judgments entered on pleas
of guilty, since frequently the record will not contain a complete
enumeration of the
Page 426 U. S. 647
elements of the offense to which an accused person pleads
guilty. [Footnote 18
think petitioner's fears are exaggerated.
Normally, the record contains either an explanation of the
charge by the trial judge or at least a representation by defense
counsel that the nature of the offense has been explained to the
accused. Moreover, even without such an express representation, it
may be appropriate to presume that, in most cases, defense counsel
routinely explain the nature of the offense in sufficient detail to
give the accused notice of what he is being asked to admit. This
case is unique, because the trial judge found as a fact that the
element of intent was not explained to respondent. Moreover,
respondent's unusually low mental capacity provides a reasonable
explanation for counsel's oversight; it also forecloses the
conclusion that the error was harmless beyond a reasonable doubt,
for it lends at least a modicum of credibility to defense counsel's
appraisal of the homicide as a manslaughter, rather than a
Since respondent did not receive adequate notice of the offense
to which he pleaded guilty, his plea was involuntary and the
judgment of conviction was entered without due process of law.
On August 7, 1970, he filed both a "Notice of Motion to Withdraw
Guilty Plea" and a "Petition for Writ of Error Coram Nobis."
The written record included the transcript of his original
arraignment on the first-degree-murder charge on April 15, 1965,
transcript of proceedings relating to the impaneling of a jury on
June 7, 1965, transcript of the proceedings on June 8, 1965, when
he pleaded guilty to second-degree murder, the sentencing hearing
on June 15, 1965, an affidavit by the prosecutor, and certain
psychological evaluations of respondent.
The order denying his petition for a writ of error coram
was entered by the Trial Division of the Supreme Court
of New York on May 29, 1971. On March 7, 1972, the Appellate
Division affirmed without opinion, People v. Morgan,
App.Div.2d 1012, 330 N.Y.S.2d 1018; on July 6, 1972, the New York
Court of Appeals denied permission to appeal.
Federal jurisdiction was invoked under 28 U.S.C. § 2241 et
Memorandum Decision and Order dated Oct. 29, 1974, pp. 4-5, App.
"In connection with petitioner's second claim, however, I find
that he was not advised by court or counsel prior to his plea of
the elements required to be established for any degree of homicide,
nor was he aware of the same; particularly, I find that petitioner
was not advised by counsel or court, at any time, that an intent to
cause the death or a design to effect the death of the victim was
an essential element of Murder 2nd degree. As stated by the Supreme
"a guilty plea is an admission of all the elements of a formal
criminal charge, it cannot be truly voluntary unless the defendant
possesses an understanding of the law in relation to the
"McCarthy v. United States, 394 U. S.
, 394 U. S. 466
upon the foregoing, I hold as a matter of law that petitioner's
plea of guilty was not intelligently or knowingly entered and was,
therefore, involuntary. Accordingly, petitioner's plea of guilty to
Murder 2nd degree must be set aside as involuntary and
The District Court ordered that respondent be discharged from
"unless the State of New York takes such steps as are necessary
to return [him] to Fulton County for rearraignment; said
rearraignment is to be held within 60 days of the date hereof. . .
516 F.2d 897 (CA2 1975).
At the evidentiary hearing in the District Court, respondent's
"The Court: I inferred that he struck her, not cut her, didn't
use the knife?"
"The Witness: Not at first. She didn't stop screaming, and then
he used the knife many times. He didn't tell me that,
the allegation was that he hit her forty-five times with the
(Emphasis added.) App. 67a.
Apart from that hearsay, there is no evidence in the record to
indicate whether the respondent struck or stabbed Mrs. Francisco
many times. The indictment charged that respondent "stabbed and cut
Ada Francisco with a dangerous knife, thereby inflicting diverse
wounds and injuries. . . ." Id.
His functioning I.Q. was reported by examiners as in the range
between 68 and 72.
The attorney described the incident, in part, in these
"He awakened Mrs. Francisco for the purpose of obtaining the
money which was rightfully his, and which he had a right to. Of
course, it was an unusual hour to do it, but he had returned home
late, and he had been threatened with that other thing on the part
of Mrs. Francisco of returning him to the Rome School. So I assume,
putting all of those factors together, the one idea in his mind was
to take his money and get away as far as he could to avoid being
"Now, Mrs. Francisco was awakened. Apparently he had stayed
there in the house, and she had no fear of him, because her bedroom
was open. There was no door on it. No locks at all. So when he
awakened her, instead of responding to him, she merely started to
scream. Now, I assume if she had talked to him that night in a
normal tone, this thing would never have happened. But the minute
she screamed, of course with his uncontrollable and ungovernable
temper, and the idea in mind of perhaps she may awaken the people
who were living in the other apartment of the house -- there was a
man and his wife who were working there for Mrs. Francisco and
living in the house -- in order to stop the screaming and in the
excitement and tension of it all, the assault occurred and as a
result Mrs. Francisco met her death."
Record on Appeal 32-33.
Of course, respondent's testimony on this point was
hypothetical. The lawyers were certainly familiar with the intent
requirement and evidently were satisfied that the objective
evidence available to the prosecutor was sufficiently strong that
the requisite intent could be proved beyond a reasonable doubt;
accordingly, had this precise issue been discussed with respondent,
his lawyers no doubt would have persisted in their advice to plead
guilty. It follows that even if respondent's testimony at the
hearing was given in complete good faith, there is no way one can
be sure that he would have refused to enter the plea following
advice expressly including a discussion of this precise question.
Indeed, we assume that he probably would have pleaded guilty
anyway. Such an assumption is, however, an insufficient predicate
for a conviction of second-degree murder.
A plea may be involuntary either because the accused does not
understand the nature of the constitutional protections that he is
waiving, see, e.g., Johnson v. Zerbst, 304 U.
, 304 U. S.
-465, or because he has such an incomplete
understanding of the charge that his plea cannot stand as an
intelligent admission of guilt. Without adequate notice of the
nature of the charge against him, or proof that he, in fact,
understood the charge, the plea cannot be voluntary in this latter
sense. Smith v. O'Grady, 312 U. S. 329
In 1965, murder in the second degree was defined as follows by
former New York Penal Law § 1046:
"Such killing of a human being is murder in the second degree,
when committed with a design to effect the death of the person
killed, or of another, but without deliberation and
Although respondent was found competent to stand trial, that
finding would not, of course, foreclose a defense of temporary
The offense of manslaughter in the first degree was defined to
include a killing "[i]n the heat of passion, but in a cruel and
unusual manner, or by means of a dangerous weapon." See
"The fact that the prisoner plunged this pointed knife into what
he knew to be a vital part of the body must raise a presumption
that he intended to take life. Its natural result would be to
destroy life, and he must be presumed to have intended the natural
consequence of his act just as if he had aimed at the heart of the
deceased and fired a gun. It was not charged that the evidence was
conclusive, but simply that it was presumptive, and it was left to
the jury to determine the fact upon the evidence under the charge
Thomas v. People,
67 N.Y. 218, 225 (1876).
"The intention may be inferred from the act, but this, in
principle, is an inference of fact to be drawn by the jury, and not
an implication of law to be applied by the court."
Stokes v. People,
53 N.Y. 164, 179 (1873). "[The] jury
has the right to find from the results produced an intention to
effect it." People v. Cooke,
292 N.Y. 185, 189, 54 N.E.2d
357, 359 (1944). "[T]he jury was not bound to presume an intent to
kill from the intentional stabbing." Id.
at 190, 54 N.E.2d
There is no need in this case to decide whether notice of the
true nature, or substance, of a charge always requires a
description of every element of the offense; we assume it does not.
Nevertheless, intent is such a critical element of the offense of
second-degree murder that notice of that element is required.
MR. JUSTICE WHITE, with whom MR. JUSTICE STEWART, MR. JUSTICE
BLACKMUN, and MR. JUSTICE POWELL join, concurring.
There are essentially two ways under our system of criminal
justice in which the factual guilt of a defendant may be
established such that he may be deprived of his
Page 426 U. S. 648
liberty consistent with the Due Process Clause of the Fourteenth
Amendment to the United States Constitution. The first is by a
verdict of a jury which, or a decision of a judge who, concludes
after trial that the elements of the crime have been proved beyond
a reasonable doubt. The second is by the defendant's own solemn
admission "in open court that he is, in fact, guilty
the offense with which he is charged," Tollett v.
Henderson, 411 U. S. 258
411 U. S. 267
(1973) (emphasis added), i.e.,
by a plea of guilty. The
Court has repeatedly emphasized that "a guilty plea for federal
purposes is a judicial admission of guilt
establishing a defendant's factual guilt." Lefkowitz v.
Newsome, 420 U. S. 283
420 U. S. 299
(1975) (WHITE, J., dissenting) (emphasis added). We said in
Brady v. United States, 397 U. S. 742
397 U. S. 748
"central to the plea and the foundation for entering judgment
against the defendant is the defendant's admission in open court
that he committed the acts charged in the indictment."
In McMann v. Richardson, 397 U.
, 397 U. S. 773
(1970), we said that the defendant who pleads guilty is "convicted
on his counseled admission in open court that he committed the
crime charged against him"; and that
"[a] conviction after a plea of guilty normally
on the defendant's own admission in open court that he committed
the acts with which he is charged."
at 397 U. S. 766
Page 426 U. S. 649
The problem in this case is that the defendant's guilt has been
established neither by a finding of guilt beyond a reasonable doubt
after trial nor by the defendant's own admission that he is, in
fact, guilty. The defendant did not expressly admit that he
intended the victim's death (such intent being an element of the
crime for which he stands convicted); and his plea of guilty cannot
be construed as an implied admission that he intended her death,
because the District Court has found that he was not told and did
not know that intent to kill was an element of the offense with
which he was charged. [Footnote
Page 426 U. S. 650
Accordingly, the best that can be said for the judgment of
conviction entered against the defendant is that it rests on strong
evidence -- never presented to a trier of fact -- or that it rests
on the judgment of his lawyer that he would probably be convicted
of second-degree murder if he went to trial. It should hardly need
saying that a judgment of conviction cannot be entered against a
defendant, no matter how strong the evidence is against him, unless
that evidence has been presented to a jury (or a judge, if a jury
is waived) and unless the jury (or judge) finds from that evidence
that the defendant's guilt has been proved beyond a reasonable
doubt. It cannot be "harmless error" wholly to deny a defendant a
jury trial on one or all elements of the offense with which he is
charged. Similarly, it is too late in the day to permit a guilty
plea to be entered against a defendant solely on the consent of the
defendant's agent -- his lawyer. Our cases make absolutely clear
that the choice to plead guilty must be the defendant's: it is he
who must be informed of the consequences of his plea and what it is
that he waives when he pleads, Boykin v. Alabama,
395 U. S. 238
(1969); and it is on his admission that he is, in fact, guilty that
his conviction will rest.
In this case, the defendant's factual guilt of second-degree
murder has never been established in any fashion permitted by the
Due Process Clause of the Fourteenth Amendment.
The dissent concedes that the conviction in this case was
entered in violation of the United States Constitution.
Page 426 U. S. 651
The dissent argues, however, that to set this defendant's
conviction aside is to apply a new constitutional rule
retroactively. The argument was not made by the petitioner in this
case and is, in any event, untenable. In order to escape
application of a constitutional rule to a particular criminal case,
on nonretroactivity grounds, the State must point to a judicial
decision occurring after the operative facts of the case in
question clearly establishing the rule. The constitutional rule
relevant to this case is that the defendant's guilt is not deemed
established by entry of a guilty plea unless he either admits that
he committed the crime charged or enters his plea knowing what the
elements of the crime charged are. If this is a new rule, created
since the defendant entered his plea, I am at a loss to know what
case, other than this one, established it. McCarthy v. United
States, 394 U. S. 459
(1969), did not do so. That case involved only a construction of
Fed.Rule Crim.Proc. 11, and has no application to the States.
Boykin v. Alabama, supra,
did not do so. It does not
mention the method of establishing the defendant's factual guilt.
The only case which arguably addresses the issue in this case is
Brady v. United States, 397 U. S. 742
397 U. S. 749
n. 6, which observed in dictum:
"[T]he importance of assuring that a defendant does not plead
guilty except with a full understanding of the charges against him
. . . was at the heart of our recent decisions in McCarthy v.
United States, supra,
and Boykin v. Alabama,
395 U. S.
However, new rules of constitutional law are not established in
dicta in footnotes. Either a new constitutional rule is being
established in this
case -- in which event, we will have
to address at some future time the question whether this rule is
retroactive -- or, as I believe to be true, this case rests on the
long-accepted principle that a guilty plea must provide a
Page 426 U. S. 652
trustworthy basis for believing that the defendant is, in fact,
guilty. If so, then the principle will and should govern all
similar cases presented to us in the future. In any event, the
judgment of the court below should be affirmed, and I join the
opinion of the Court.
There exists what may be viewed as a third method of
establishing a defendant's factual guilt. We have permitted
judgment to be entered against a defendant on his intelligent plea
of guilty accompanied by a claim of innocence. We said in North
Carolina v. Alford, 400 U. S. 25
400 U. S. 37
"[W]hile most pleas of guilty consist of both a waiver of trial
and an express admission of guilt, the latter element is not a
constitutional requisite to the imposition of criminal penalty. An
individual accused of crime may voluntarily, knowingly, and
understandingly consent to the imposition of a prison sentence even
if he is unwilling or unable to admit his participation in the acts
constituting the crime."
We held that, where
"a defendant intelligently
concludes that his interests
require entry of a guilty plea and the record before the judge
contains strong evidence of actual guilt,"
a plea may be accepted even if accompanied by protestations of
(Emphasis added.) However, in that case,
the defendant pleaded guilty to second-degree murder after
acknowledging that his "counsel had informed him of the difference
between second- and first-degree murder." Id.
400 U. S. 28
is based on the fact that the defendant could
intelligently have concluded that, whether he believed himself to
be innocent, and whether he could bring himself to admit guilt or
not, the State's case against him was so strong that he would have
been convicted anyway. Since such a defendant has every incentive
to conclude otherwise, such a decision made after consultation with
counsel is viewed as a sufficiently reliable substitute for a jury
verdict that a judgment may be entered against the defendant.
Plainly, a defendant cannot "intelligently" reach that conclusion
if he does not know the elements of the crime to which he is
pleading, and therefore does not know what the State has to prove;
and his ignorant decision to plead guilty under such circumstances
is not a reliable indication that he is, in fact, guilty.
This case is unusual in that the offense to which the defendant
pleaded was not charged in the indictment. The indictment charged
first-degree murder. The defendant pleaded guilty to the included
offense of second-degree murder, the elements of which were not set
forth in any document which had been read to the defendant or to
which he had access. See McCarthy v. United States,
394 U. S. 459
394 U. S. 467
n. 20 (1969). In those cases in which the indictment is read to the
defendant by the court at arraignment or at the time of his plea,
his plea of guilty may well be deemed a factual admission that he
did what he is charged with doing, so that a judgment of conviction
may validly be entered against him.
MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins,
The Court's opinion affirms a judgment which directs the release
on federal habeas of a state prisoner who, on advice of counsel,
pleaded guilty in the New York State courts 11 years ago to a
charge of second-degree murder. The Court declares its agreement
with petitioner's contention that the test for reviewing the
constitutional validity of a counseled plea of guilty should be
"the totality of the circumstances," ante
at 426 U. S. 644
But the Court's holding can be justified only if the Constitution
requires that "a ritualistic litany of the formal legal elements of
an offense [be] read to the defendant," ibid.,
requirement which it purports to eschew. [Footnote 3/1
] The Court accomplishes this result by
imposing on state courts, as a constitutional requirement, a
definition of "voluntariness" announced by this Court in
McCarthy v. United States, 394 U.
(1969), in which the Court interpreted a
provision of the Federal Rules of Criminal Procedure. Yet that case
has been held to have only prospective application even as to the
federal courts. Halliday v. United States, 394 U.
extended the definition of voluntariness to
include an "understanding of the essential elements of the crime
charged, including the requirement of specific
Page 426 U. S. 653
intent . . . ," 394 U.S. at 394 U. S. 471
But, prior to McCarthy,
and to this Court's decision of a
related issue in Boykin v. Alabama, 395 U.
(1969), the generally accepted standard for a
valid guilty plea in federal courts was set forth in Machibroda
v. United States, 368 U. S. 487
368 U. S. 493
(1962), which, in turn, relied on Kercheval v. United
States, 274 U. S. 220
274 U. S. 223
(1927). Though these were federal cases, certainly no more
stringent a standard could be applied as a matter of constitutional
law on federal habeas review of state convictions. The Court said
"'Out of just consideration for persons accused of crime, courts
are careful that a plea of guilty shall not be accepted unless made
voluntarily after proper advice and with full understanding of the
368 U.S. at 368 U. S. 493
quoting Kercheval, supra
at 274 U. S.
These cases thus set forth a three-pronged test: the plea of
guilty must be made voluntarily, it must be made after proper
advice, and it must be made with full understanding of the
consequences. There can be no doubt that respondent entered his
plea "with full understanding of the consequences," because the
District Court expressly so found. Nor can there be any serious
doubt that respondent's plea was made "voluntarily," as that term
is used in Machibroda
and the previous cases upon which it
There was no contention in the federal habeas court that
respondent's guilty plea was not "voluntary" in the normal sense of
that word. There was no hint of physical or psychological coercion,
and respondent was represented by not one, but two, admittedly
capable defense attorneys. While McCarthy v. United States,
at 394 U. S. 471
expands the notion of "voluntariness" to include the concept that a
defendant must have an "understanding
Page 426 U. S. 654
of the essential elements of the crime charged, including the
requirement of specific intent . . . ," in order for a plea in the
federal courts to be valid under Fed.Rule Crim.Proc. 11, that
decision was held prospective only in Halliday, supra.
Even had it not been, Rule 11 by its terms applies only to
proceedings in federal courts.
A perusal of cases in the Courts of Appeals decided before
and Boykin, supra,
that, at least in the case where the defendant is counseled, there
was no requirement that every element of the offense be explained
to or admitted by the defendant [Footnote 3/2
] or even in every case that the
consequences of the plea be enunciated. E.g., United States v.
323 F.2d 180 (CA3 1963); McGrady v.
296 F.2d 600 (CA4 1961), cert. denied,
369 U.S. 855 (1962); Kennedy v. United States,
883 (CA5 1958), cert. denied,
359 U.S. 994 (1959);
United States v. Swagerty,
218 F.2d 875 (CA7), cert.
349 U.S. 959 (1955); see
at 394 U. S. 833
Thus, unless the Court intends to establish a new and far more
stringent standard for all guilty pleas entered before the 1969
decisions of this Court in Boykin
respondent's plea was "voluntary" as that term was understood
before the decisions in those cases. [Footnote 3/3
Page 426 U. S. 655
But the Court refers to "voluntary in a constitutional sense,"
stating that the term includes the requirement of "real notice
of the true nature of the . . . ' charge," ante at
426 U. S. 645,
citing the pre-Boykin case of Smith v. O'Grady,
312 U. S. 329
(1941). Smith involved an "uneducated" defendant
"without counsel, bewildered by court processes strange and
unfamiliar to him, and inveigled by false statements of state law
enforcement officers into entering a plea of guilty."
at 426 U. S. 334
The Court further observed that Smith's plea was involuntary
because he had not received any "real notice of the true nature of
the charge against him." Ibid.
That is, he was told he was
pleading to "simple burglary," and would receive a 3-year sentence
when, in fact, he was tricked into pleading to "burglary with
explosives" and was sentenced to 20 years. Thus the "notice"
required by Smith
is accurate information as to the
offense and sentence to which one is pleading, which respondent
Since it seems clear under the foregoing analysis that
respondent's plea was "voluntarily made," and since it is
undisputed that it was made with full understanding of its
consequences, the only remaining issue is whether he was "properly
advised," as that term is used in Machibroda, supra.
inquiry, in turn, depends upon the sort of advice reasonably
competent counsel would have been expected to give him, see
Brady v. United States, 397 U. S. 742
397 U. S.
-757 (1970), and McMann v. Richardson,
397 U. S. 759
397 U. S. 770
(1970). Thus, the test
Page 426 U. S. 656
to be applied is not whether respondent's attorneys mechanically
recited to him the elements of the crime with which he was charged
as those elements would have been set forth in black letter law in
a criminal law hornbook, but rather it is a test based on the
practices of reasonably competent attorneys experienced in the
day-to-day business of representing criminal defendants in a trial
The Court states that it
"accept[s] petitioner's characterization of the competence of
respondent's counsel and of the wisdom of their advice to plead
guilty to a charge of second-degree murder."
at 426 U. S.
In McMann, supra,
the Court held that the requirement
that a guilty plea be intelligently made "is not a requirement that
all advice offered by the defendant's lawyer withstand
retrospective examination in a post-conviction hearing." 397 U.S.
at 397 U. S. 770
In this case, counsel advised their client as to the penalty for
second-degree murder, but did not go into "detail" as to the
differences between first- and second-degree murder, believing that
their client would not be interested. App. 57a. Now, 11 years
later, this Court concludes that counsel's decision was an error of
Respondent was originally indicated for the crime of
first-degree murder, and that indictment charged that, in April,
1965, he had
"willfully, feloniously and of malice aforethought, stabbed and
cut Ada Francisco with a dangerous knife . . . and that thereafter
. . . the said Ada Francisco died of said wounds and injuries, said
killing being inexcusable and unjustifiable."
at 85a. Respondent's attorney at the habeas hearing
testified that respondent had stabbed his victim "many times"
at 67a), which suggests that experienced counsel
would not consider the "design to effect death" issue to be in
serious dispute. The habeas judge, in deciding that there was a
Page 426 U. S. 657
factual basis for the entry of the plea, took much the same
approach when he observed:
"The Court: Well the intent, I think there is a factual basis
from the evidence where it, that is the jury would have a right to
infer on the mere fact, I think when he hit her first and then used
the knife, that there were multiple knife wounds, that the jury
could infer, and as a matter of fact, I think from those same facts
the Judge would have to permit the jury to decide as a question of
fact whether there was premeditation on first degree murder, so
that this man was a long way short of being out of the woods."
"So I am satisfied that there was a factual basis for the entry
of the plea."
I do not see how this Court, or any court, could conclude on
this state of the record that respondent was not "properly advised"
at the time he entered his plea of guilty to the charge of
His attorneys were motivated by the eminently reasonable
tactical judgment on their part that he should plead guilty to
second-degree murder in order to avoid the possibility of
conviction for first-degree murder with its more serious attendant
penalties. Since the Court concedes both the competence of
respondent's counsel and the wisdom of their advice, that should be
the end of the matter.
There are intimations in the Court's opinion that the vice which
it finds in the guilty plea is not that respondent was not
of all the elements of the offense, but that,
instead, he did not admit
to all of those elements.
at 426 U. S. 646
But it is quite clear under our decision in North Carolina v.
Alford, 400 U. S. 25
(1970), that the latter fact, standing alone, is not sufficient to
invalidate a guilty plea. In Alford,
Page 426 U. S. 658
not only was not asked to admit to a certain element of the
offense, as here, but affirmatively denied
committed the crime at all. Yet we upheld the guilty plea because,
as here, it was a tactically sound decision for the defendant to
plead to second-degree murder in order to escape the greater
penalties which might result from a first-degree murder conviction.
we placed great weight on the fact that, as in
this case, "the defendant was represented by competent counsel
whose advice was that the plea would be to the defendant's
at 400 U. S.
Thus, the fact, relied upon by the Court, ante
426 U. S.
-646, that a jury would not have been
to infer the requisite intent from the facts
admitted at the guilty plea is not significant. Alford, at his
guilty plea, presented a complete defense to the crime by stating
that he had not shot anyone. 400 U.S. at 400 U. S. 28
2. Respondent admitted the stabbing, but made no statement as to
his intent. Even if he had denied
the intent, this plea
would be valid under Alford.
The "totality of the circumstances" in this case shows that
respondent pleaded guilty to second-degree murder upon the advice
of competent counsel. His plea was in no way the result of physical
or psychological coercion or overreaching by the State, and he was
fully advised as to the consequences of that plea. True, he was not
expressly advised that the "design to effect death" was an element
of the offense to which he was pleading, although the original
first-degree-murder indictment charging "malice aforethought" had
been read to him. Given the finding of the habeas judge that there
was more than ample evidence from which the Jury could have found
that respondent had the requisite intent, I cannot subscribe to the
Court's invalidation of his pre-1969 guilty plea for such an
extremely technical defect.
Page 426 U. S. 659
In adopting the rule it does, the Court opens the door to
countless similarly situated prisoners to withdraw their guilty
pleas many years after they were entered. Since it is unlikely that
prosecutors will be able to reassemble witnesses and evidence at
this late date to try these prisoners, the practical effect of the
Court's ruling will be to release these prisoners who at one time
freely admitted their guilt.
Admittedly the Court does not require that this litany be
performed on the record, but the requirement that it be performed
at some point in the proceedings, whether by counsel or by the
court, is clear.
The Court disclaims such a holding. Ante
426 U. S. 647
n. 18. However, by holding that intent was a "critical element"
here which must be described to the defendant, the Court has
accomplished the same effect, for every crime requires an intent,
and it is no more "critical" an element in this case than in any
other. Indeed, it would seem to be far less significant here,
because it could have been presumed by the jury without any
In Brady v. United States, 397 U.
, 397 U. S. 755
(1970), the Court, in dealing with a pre-McCarthy
plea, held that the "standard as to the voluntariness of guilty
pleas" is that
""[A] plea of guilty entered by one fully aware of the
direct consequences, including the actual value of any commitments
made to him by the court, prosecutor, or his own counsel, must
stand unless induced by threats (or promises to discontinue
improper harassment), misrepresentation (including unfulfilled or
unfulfillable promises), or perhaps by promises that are, by their
nature, improper as having no proper relationship to the
prosecutor's business (