IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 86,325
LEVOI D. EASTERWOOD,
Appellant,
v.
STATE OF KANSAS,
Appellee.
SYLLABUS BY THE COURT
Under the facts of this case, we hold: (1) The record established a sufficient factual basis for the defendant's pleas of guilty to felony murder, aggravated robbery, and one count of kidnapping; (2) the defendant was sufficiently informed by the court and his counsel of the possible penalties he faced before entering his pleas; (3) the defendant, who had the opportunity to challenge his felony-murder charge but knowingly and willingly waived that right and opportunity in order to take advantage of a favorable plea agreement involving the dismissal of five charges and two separate offenses, is bound by his plea agreement; and (4) the defendant is not entitled to have his pleas set aside in a collateral attack of his convictions to benefit from a favorable, nonretroactive ruling in a later separate appeal by a different party on the precise legal issue which the defendant willingly waived.
Appeal from Wyandotte district court; JOHN J. BUKATY, JR., judge. Opinion filed April 19, 2002. Affirmed.
Sarah Ellen Johnson, assistant appellate defender, argued the cause, and Rebecca Woodman, assistant appellate defender, and Steven R. Zinn, deputy appellate defender, were with her on the briefs for appellant.
Michael A. Russell, assistant district attorney, argued the cause, Nick A. Tomasic, district attorney, and Carla J. Stovall, attorney general, were with him on the brief for appellee.
The opinion of the court was delivered by
LARSON, J.: This K.S.A. 60-1507 appeal raises the question of whether a criminal defendant who has had the opportunity to challenge his felony-murder charge but knowingly waived that right and pled guilty to felony murder and other charges in order to obtain a favorable plea agreement is entitled to collaterally attack his convictions to benefit from a favorable ruling in a later appeal by a different party on the precise legal issue which he willingly waived.
We hold the defendant is bound by his plea agreement and receives no benefit from the later ruling which we do not apply retroactively, and we affirm the trial court.
We first set forth in detail the factual background, procedural history, and timing of the events which bring this question before our court.
In late November 1995, LeVoi D. Easterwood, and his cousin, Anthony Birch, entered an Osco store in Kansas City, Kansas, late in the evening. Both were armed with guns. They hid in the back of the store until closing. When the store closed, they came out from their hiding place and proceeded to rob the store.
They forced the store manager to open the safe and hand over approximately $1,500. They held five other employees captive and moved the parties toward the back of the store in order to complete the robbery. One of the employees later gave a statement identifying Easterwood as saying to Birch that they should kill all the witnesses.
At Birch's request, the store manager opened the back door where they were confronted by Kansas City police officers. Easterwood ran to the front of the store where he found three more police officers. He dropped his gun.
Birch shot at the police officers near the back of the store, who returned fire killing Birch. Easterwood ran to a nearby cemetery, where he was captured and arrested.
Easterwood was charged in December 1995 with felony murder, K.S.A. 21-3401 (off-grid person felony), aggravated robbery, K.S.A. 21-3427 (severity level 3 person felony), and six counts of kidapping, K.S.A. 21-3420 (severity level 3 person felony). Attorney James F. Foster was appointed to defend Easterwood.
A preliminary hearing was held. A motion to suppress a confession was filed and argued. A motion to dismiss contended the felony-murder statute was unconstitutionally vague. Plea negotiations were held. During the selection of the jury to try the case, a plea agreement was reached.
Easterwood executed a Petition to Enter a Plea of Guilty, in which he stated:
A. He was 25 years of age and had completed 14 years of schooling.
B. He acknowledged he was not under any limitation, understood the charges against him, had fully informed his lawyer of all facts and had been counseled on all possible defenses.
C. He stated he had been informed of the maximum sentence that could be entered. He agreed to plead guilty to felony murder, aggravated robbery and one count of kidnapping. The State and defendant agreed to request 20 years' sentence of Life with parole eligibility after 15 years plus 5 years. It was stated in paragraph 12 that "no additional charges filed in Wy. Co. in relation to statement given."
D. In printed language, paragraph 14, which was agreed to by Easterwood, stated:
"14. I know that the court will not permit anyone to plead 'Guilty' who maintains he/she is innocent, and with that in mind, and because I am 'Guilty' and not innocent, I wish to plead 'Guilty' and respectfully request the court to accept my plea."
A guilty-plea hearing was held after the plea agreement was reached. The facts as previously stated herein were recited by counsel and Easterwood. A detailed plea colloquy was held, five kidnapping charges were dismissed, and Easterwood pled guilty to felony murder, aggravated robbery, and one count of kidnapping. The trial court said:
"Mr. Easterwood, I am gonna accept your plea of guilty to those three charges because I find that your plea was freely, voluntarily and because you are, in fact, guilty as charged, not out of ignorance, fear, inadvertence or coercion and with full understanding of its consequences. I further find you have admitted the essential elements of the crime charged and that you are mentally competent here in open court this April 22nd, 1996."
The sentencing hearing was held on June 6, 1996. The parties asked the sentencing court to sentence Easterwood as agreed to in the plea agreement. The judge stated that he assumed a hard 40 sentence was not involved. Easterwood's counsel responded that because the plea was to felony murder, there would be a life sentence and his client would be eligible for parole after serving 15 years but the plea agreement required a 5-year sentence in addition to that. Easterwood was asked if he wished to address the court, and he said:
"Yes. I am fully aware of the crimes that I committed and I'm prepared to pay for those crimes. I apologize to the victims and also my family for what I've done. I'm not an ignorant man. I'm well educated so I understand the circumstances, everything that happened, and I would just hope that the court would agree to the pre-ordained sentence and stick to that.
"That's pretty much all I have to say, Your Honor."
The sentencing judge followed the plea agreement and sentenced Easterwood to life with eligibility for parole after 15 years on the felony-murder conviction and consecutive sentences of 51 months for the aggravated robbery conviction and a downward departure to 9 months for the kidnapping conviction. Easterwood began serving his sentence, and no appeal was taken.
Nothing further occurred until February 3, 2000, when Easterwood challenged his convictions by filing a K.S.A. 60-1507 action in which he alleged ineffective assistance of counsel, he was improperly informed of the potential penalties, insufficient evidence to support a finding of guilt of felony murder, violations of K.S.A. 22-3210 by accepting his pleas without specifically finding that he knew the elements of the crimes charged, and various constitutional violations.
The judge who had sentenced Easterwood appointed counsel to represent him and held a 60-1507 hearing in which Easterwood and his trial counsel, James Foster, both testified.
In response to questions asked about the plea negotiations, Foster stated:
"Q. Okay. The felony murder in this case, was it somewhat unusual because of the factual -- the facts in this case?
"A. It was, Judge, because the -- the individual -- the deceased I think was a relative of Mr. Easterwood's, and he was also involved in a robbery -- in a -- in an aggravated robbery charge a Osco Drug Store. He was killed by he police when they went to investigate. I think a large number of police officers arrived at Osco and, during the I guess trying to capture the relative, ended up shoot -- the police ended up shooting him. So it wasn't a typical felony murder type case in which an innocent bystander might have been killed during the commission of a robbery or something on those lines.
"Q. And had you done any research into the case law into this matter in your defense of Mr. Easterwood?
"A. Yes, I did, and I gave -- I don't recall if I actually gave Mr. Easterwood a copy of a case that I got from the Kansas Reports. I know I discussed it with him if I didn't and I gave the name, and the cite, and -- and a - -- I can't remember if I asked him if they had access to law books, but I think I actually gave him a copy of the case on felony murder in which Justice Locket wrote a dissenting opinion, and it was the closest type of case that I could find that -- it was a difficult case. In my mind, it was difficult pleading someone to the felony murder, because I did not believe that that was the purpose of the felony murder rule
"Q. Di-
"A. -- but I found a case and -- that -- that I think was as close as possible. Justice Lockett was -- wrote a dissenting opinion, even though they found a person guilty of felony murder in the -- in the most similar situation that with Mr. Easterwood, the possibility if he were convicted, he'd have a right to appeal, and there was several judges who had dissented in the opinion, so he might have a chance on appeal on that issue. But the problem was, he was -- in a fairly -- fairly strong case against him on all the other charges, so that even if he won the felony murder case he was in front of Dexter -- Judge Dexter Burdette. You were going to a- -- the prosecution was asking for consecutive sentences. It w- -- he was just in a no-win situation.
"Q. Okay, so up to the plea, were -- were you and Mr. Easterwood talking about that if -- even if he was convicted, that you would have an appeal right at least to whether the facts in this case supported a conviction for felony murder?
"A. That's correct.
"Q. And had you conveyed that or spoke -- had you and Mr. Easterwood discussed this during this entire time?
"A. Yes.
"Q. And what was his feelings as to what you should do --
"A. Uh --
"Q. -- if you recall?
"A. I mean, he -- he didn't -- like any -- any person charged with a crime and not sure -- he didn't want -- necessarily want to plead to felony murder and -- and the other charge; but there weren't any alternatives, other than going to trial and maybe getting all charges run consecutive, getting a larger sentence --"
Foster, in later questions, explained his concern regarding consecutive sentences being entered and the difficulty of the case:
"Q. Okay. What -- you had indicated that -- that you felt this was a difficult case of felony murder to plead because of the circumstances, and you've also indicated, you know, you hoped the jury may disregard it. In your experience, do you think that this would also have been a difficult case for the jury to convict on?
"A. I don't think so, and -- and the reason I -- one of the main reasons I was concerned about it is, one of the witnesses had given a statement that -- i- --identifying Mr. Easterwood as stating to the other the deceased that they should kill all the witnesses
"Q. Uh-huh.
"A. -- which, in my opinion, if they heard that, the Court was going to do everything in their power to run the sentences consecutive
"Q. Uh-huh. Okay.
"A. -- if he's convicted."
As to other crimes with which Easterwood was charged, Foster testified as follows:
"Q. Okay. Was Mr. Easterwood charged in any other cases besides the one we're here talking about today, the 95CR2297?
"A. Originally, he was charged with two other aggravated robberies."
Foster and Easterwood offered conflicting testimony on the movant's claim that he was told a "hard 40" could be assessed. Foster stated he had told Easterwood that his sentence would exceed 40 years if he was found guilty of all charges and all sentences were run consecutively. Easterwood said Foster had told him he could be subject to a hard 40 sentence.
There were questions by Easterwood's counsel about whether the double-double rule in guideline sentencing would apply. It was argued this might have limited the time served to 32 years.
When asked why he changed his mind during jury selection and decided to plead, Easterwood stated that he believed he could be sentenced to as much as 49 years as opposed to the offered 20 years. He admitted that the "the state's evidence was pretty strong. And I -- I figured that I was going to get convicted of felony murder as well regardless of the defense ." He admitted that while Foster recommended the plea, Foster did not coerce him in any manner. Easterwood admitted that he made the decision that day to accept the plea.
The court questioned Easterwood's appointed counsel as to whether Easterwood understood the risk that if his requested relief was granted and all the charges were placed back against him and he was allowed to go to trial that he could be sentenced to a longer term than what he had already been sentenced to. Counsel stated that had been explained to Easterwood several times and that he was willing to take that risk. Easterwood confirmed this statement.
In ruling on the K.S.A. 60-1507 motion, the court stated there was a very strong factual statement to support guilty findings on the charges of aggravated robbery and kidnapping of six people. As to the charge of felony murder, the defense that both felons were trying to surrender might have been an arguable point to the jury but was not a legal defense upon which the court could direct a verdict. The court did mention that "there's probably a strong likelihood that -- that a jury would convict [Easterwood]" on the charge of felony murder.
The court found that Easterwood had ample time to consider the plea, that it was properly agreed to, that the trial court and his counsel had told Easterwood he was possibly facing a longer sentence than under the plea agreement, and that Easterwood knowingly elected to "take the plea."
The court found that counsel's stating the sentence could have exceeded 40 years was not ineffective assistance, even though the court believed the minimum sentence would have been 32 years if run consecutively. The court found that Easterwood determined on his own to accept the plea agreement rather than submit his defense to the jury. The court said:
"You had the right to do so. You elected not to do it, and you elected not to do it when you knew what the possible sentences were that were -- going to be recommended; and for that reason, I am going to deny your petition at this time."
A journal entry of this order was filed October 4, 2000, and a notice of appeal was filed on October 13, 2000.
Easterwood's 60-1507 court-appointed counsel was allowed to withdraw and the appellate defender's office was appointed to take the appeal. The issues for appeal are those raised by the 60-1507 motion, the evidence presented at the hearing, and the rulings of the trial judge.
The issues changed shortly thereafter because on March 9, 2001, this court filed its opinions in State v. Sophophone 270 Kan. 703, 19 P.2d 70 (2001), and State v. Murphy, 270 Kan. 804, 19 P.2d 80 (2001). The facts in Sophophone were almost identical to Easterwood's situation, with the exception that Sophophone had been in custody for some time when his co-felon was killed by the lawful act of a police officer returning fire. Easterwood was in the process of fleeing from the aggravated robbery when his co-felon Branch was shot. This was a factual difference, but the deaths in both cases resulted from the lawful act of a law enforcement officer. Our precise holding in Sophophone was:
"A felon may not be convicted of felony murder pursuant to K.S.A. 21-3401(b) for the killing of his co-felon, caused not by his acts or actions but by the lawful acts of a law enforcement officer acting in self-defense in the course and scope of his duties in apprehending the co-felon, who was fleeing from an aggravated burglary in which both felons had participated." 270 Kan. 703, Syl. ¶ 6.
The decision in Murphy was similar, but there the death of the co-felon resulted from returned gunfire of a victim, not from the actions of a law enforcement officer. We held:
"[A] felon may not be convicted of felony murder pursuant to K.S.A. 21- 3401(b) for the killing of his co-felon caused not by his acts or actions but by the lawful acts of a victim of aggravated robbery and kidnapping acting in self-defense for the protection of his residence and the occupants thereof." 270 Kan. 804, Syl. ¶ 2.
There was a strong dissent in the Sophophone case by Justice Abbott, which was joined by Chief Justice McFarland and Justice Davis. The same three justices dissented in the Murphy case.
The majority's reasoning adopted the agency approach rather than the proximate cause line of cases, construed the felony-murder statute strictly in favor of the accused. It distinguished and held that its ruling was not inconsistent with State v. Hoang, 243 Kan. 40, 755 P.2d 7 (1988) (the case obviously referred to in attorney Foster's testimony, where Justice Lockett dissented and two other justices joined), or State v. Lamae, 268 Kan. 544, 998 P.2d 106 (2000).
The Sophophone dissent argued that the acts should constitute felony murder -- a result dictated by following Hoang, that the statutory language of K.S.A. 21-3401 should control, and that the cases cited from other jurisdictions more logically followed the proximate cause approach.
With these decisions now available, Easterwood's arguments on appeal, when his brief was filed in August 2001, changed and became:
"(1) Under the Kansas Supreme Court's interpretation of the felony murder statute, Le-Voi D. Easterwood did not commit felony murder, so his conviction should be vacated or his guilty plea withdrawn,
"(2) The trial court erred when it denied Mr. Easterwood's motion to withdraw his plea because the record did not establish a factual basis for a plea of guilty to felony murder,
"(3) The trial court erred when it denied Mr. Easterwood's motion to withdraw his plea because Mr. Easterwood was misinformed abut the possible penalties he faced."
Diligent appellate counsel now argue that the Sophophone and Murphy decisions must be applied retroactively to allow Easterwood to attack his conviction on collateral review because of the decision of the United States Supreme Court in Bousley v. United States, 523 U.S. 614, 140 L. Ed. 2d 828, 118 S. Ct. 1604 (1998). In Bousley, the defendant, who was convicted of using a firearm under 18 U.S.C. § 924(c) (1988), was allowed to challenge that conviction in a collateral proceeding as the result of the Court's ruling in Bailey v. United States, 516 U.S. 137, 144, 133 L. Ed. 2d 472, 116 S. Ct. 501 (1995), which construed 18 U.S.C. §924(c)(1) in a manner which might have had the effect of not covering Bousley's actions.
The State argues that Easterwood's plea of guilty was valid because at the time it was made, Hoang would logically be interpreted to justify Easterwood's felony-murder conviction; language; in State v. Branch & Bussey, 223 Kan. 381, 383-84, 573 P.2d 1041 (1978), pointed to a rule that felony murder existed if the participants could "reasonably foresee or expect that a life might be taken"; Easterwood received a beneficial plea agreement with a lesser sentence than he might otherwise have received; and Kansas has recognized that a court can accept a plea in which the evidence does not support the charge, citing State v Reed, 254 Kan. 52, 865 P.2d 191 (1993). The State further argues these issues were not properly raised in the trial court and may not be raised for the first time on appeal. Finally, the State argues the transcript of the plea hearing clearly shows that Easterwood was fully apprised of the maximum sentences that might be entered for the crimes for which he was charged.
We initially consider the State's argument that the primary issue on which Easterwood now relies was not presented to the trial court and may not be considered for the first time on appeal. See State v. Ninci, 262 Kan. 21, Syl. ¶ 8, 936 P.2d 1364 (1997). We stated in State v. Mincey, 265 Kan. 257, 267, 963 P.2d 403 (1998), that there are three exceptions to this general rule in cases where:
"(1) the newly asserted theory involves only a question of law arising on proved or admitted facts which is finally determinative of the case; (2) questions are raised for the first time on appeal if consideration of the same is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) the judgment of a trial court may be upheld on appeal although that court may have relied on the wrong ground or assigned a wrong reason for its decision. State v. Bell, 258 Kan. 123, 126, 899 P.2d 1000 (1995); see Pierce v. Board of County Commissioners, 200 Kan. 74, Syl. ¶ 3, 434 P.2d 858 (1967)."
Because the Sophophone and Murphy decisions were not filed until after Easterwood's 60-1507 hearing was held, the issues were admittedly not raised below. But, Easterwood has raised contentions of denial of his fundamental rights, the facts surrounding the plea agreement and the reasons therefore were fully developed below, and questions of law appear to exist which will be finally determinative of this case. No good reason appears to us to not consider and resolve the issues that have been raised on appeal, despite the fact that all were not considered by the trial court.
Our standard of review of the trial court's findings of fact is to determine if they are supported by substantial competent evidence and whether the findings are sufficient to support the trial court's conclusions of law. Sampson v. Sampson, 267 Kan. 175, 181, 975 P.2d 1211 (1999). Our review of conclusions of law is unlimited. Lindsey v. Miami County National Bank, 267 Kan. 685, 689-90, 984 P.2d 719 (1999).
As to questions involving alleged ineffective assistance of counsel, the performance and prejudice prongs are mixed questions of law and fact requiring de novo review. State v Sperry, 267 Kan. 287, 297, 978 P.2d 933 (1999). See Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985) (adopting the holdings of Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052, reh. denied 467 U.S. 1267 [1984]). The appropriate standard of review on the question of whether a plea after sentencing should be allowed to be withdrawn "to correct manifest injustice," see K.S.A. 2001 Supp. 22-3210(d), is whether the trial court abused its discretion. State v. Shears, 260 Kan. 823, 829, 925 P.2d 1136 (1996).
We begin our analysis of the issues raised by providing a bit of historical background on how courts have applied civil decisions involving criminal issues retroactively, by noting that K.S.A. 60-1507 proceedings were held in State v. Richardson, 194 Kan. 471, 472-73, 399 P.2d 799 (1965), to be a civil action (citing Heflin v. United States, 358 U.S. 415, 3 L. Ed. 2d 407, 79 S. Ct. 451 [1959]). Richardson teaches that K.S.A. 60-1507 follows the language of a federal statute, see 28 U.S.C. § 2255 (1994), and the body of law developed thereunder should be given great weight in construing K.S.A. 60-1507. 194 Kan. at 472. This is important in Easterwood's appeal, as it is clearly before us on collateral review involving what we believe is a new decision of substantive criminal law which Easterwood declined to challenge when he had the opportunity to do so.
It is also important to point out that the appeal we face does not involve a constitutional rule of criminal procedure, such as this court recently faced in Whisler v. State, 272 Kan. ___ 36 P.3d 290 (2001), and earlier in State v. Neer, 247 Kan. 137, 795 P.2d 362 (1990). The Whisler opinion involved the question of whether Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), which our court followed in State v. Gould, 271 Kan. 394, 23 P.3d 801 (2001), was required to be applied retroactively. Justice Allegrucci, speaking for our unanimous court, reviewed Teague v. Lane, 489 U.S. 288, 103 L. Ed. 2d 334, 109 S. Ct. 1060 (1989), which held a new rule of constitutional criminal procedure is not to be applied retroactively on collateral review unless (1) it places certain kind of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe, or (2) it is a watershed requiring the observance of those procedures that are implicit in the concept of ordered liberty. Whisler, 272 Kan. ___, Syl. ¶ 1. Our opinion in Neer, which we will discuss in detail later, had previously recognized and applied Teague shortly after it was decided. See 247 Kan. at 141-43. The reasoning and decisions behind this now-existing rule involving constitutional rules of criminal procedures are set out in Tribe, American Constitutional Law, § 3-3, pp. 227-35 (3d ed. 2001); 1 LaFave, Israel, and King, Criminal Procedure, § 2.10, pp. 684-702 (2d ed. 1999).
While the foregoing rules apply to situations involving procedural rules, a different rule applies where substantive law is in issue. "[A]s related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes the punishment therefore; whereas procedural law is that which provides or regulates the steps by which one who violates a criminal statute is tried and punished." State v. Nunn, 244 Kan. 207, Syl. ¶ 9, 768 P.2d 268 (1989); State v. Hutchinson, 228 Kan. 279, Syl. ¶ 8, 615 P.2d 138 (1980). The most common situation where this distinction is in issue relates to statutory changes. See, e.g., State v. Moon, 15 Kan. App. 2d 4, Syl. ¶ 3, 801 P.2d 59 (1990), rev. denied 248 Kan. 998 (1991), where the court stated the general rule that "a statute operates prospectively unless its language clearly indicates a contrary legislative intent. The general rule is modified and the statute is given retroactive effect where the statutory language is merely procedural or remedial in nature."
When an appellate court issues a new rule relating to whether the death of a co-felon at the hands of a lawful act of a law enforcement officer during the commission of an aggravated robbery subjects the surviving co-felon to prosecution for felony murder, that rule involves a question of substantive law and must be so treated in considering its retroactive effect.
Several recent decisions of the United States Supreme Court discuss the precise issue we face: collateral review as to the retroactivity of a decision in one case on the outcome of others. 6 LaFave, Israel, and King, Criminal Procedure, § 28.9, p. 133 (2d ed. 1999), after discussing Teague, under 28 U.S.C. § 2255, states:
"Even if claims of error based upon new procedural rulings may be Teague-barred, claims based on new substantive rulings are not. Specifically, a court may not refuse to hear an applicant's claim that he is entitled to the benefit of a decision the Supreme Court, delivered following his conviction, that the federal criminal statute under which he was convicted does not reach his conduct. In Bousley v. United States, the Court considered whether Teague should be applied to bar relief under § 2255 for a prisoner who, relying on a decision of the Supreme Court holding that the crime he was charged with violating did not reach his conduct, claimed that he was misinformed about the elements of his offense, and as a result, pleaded guilty to a crime he did not commit. The Court rejected the application of Teague to this issue of 'substance' rather than procedure, and concluded that 'it would be inconsistent with the doctrinal underpinnings of habeas review to preclude petitioner from relying on our decision * * * in support of his claims that his guilty plea was constitutionally invalid.'" (Emphasis added.)
With Bousley now being the centerpiece of Easterwood's arguments and his contention that his circumstances fit under its decision, we examine Bousley in more detail. Bousley pled guilty to "knowingly and intentionally us[ing] . . . firearms during and in relation to a drug trafficking crime" in violation of 18 U.S.C. § 924(c). He did not directly appeal the validity of his guilty plea. Several years later, he challenged the factual basis of his plea in a habeas corpus (28 U.S.C. § 2255) motion. The federal district court found the factual basis to be sufficient because at the time of the crime, there were guns in the defendant's bedroom in close proximity to the illegal drugs. The trial court denied the motion, but during the pendency of defendant's appeal, a United States Supreme Court decision was rendered that clarified the phrase "use . . . firearms" to mean "active employment of the firearm." Bailey v. United States, 516 U.S. at 144. Mere placement of a firearm next to drugs was not enough. 516 U.S. at 149. Bousley argued that Bailey should be applied retroactively; however, the Eight Circuit Court of Appeals refused to do so and affirmed the district court. Bousley v. Brooks, 97 F.3d 284, (8th Cir. 1996).
The Supreme Court reversed and remanded. Bousley v. United States, 523 U.S. at 618, 624. The Court first recited the well-accepted rule that "[a] plea of guilty is constitutionally valid only to the extent it is 'voluntary' and 'intelligent.' Brady v. United States, 397 U.S. 742, 748[, 25 L. Ed. 2d 747, 90 S. Ct. 1463] (1970)." 523 U.S. at 618. The Court refused to limit the retroactive application of Bailey, and set forth the following test for determining whether defendant's plea was valid:
"Petitioner nonetheless maintains that his guilty plea was u