JUDGMENT 1. SUMMARYUpon advice of his attorneys, the defendant, in a state trial court in Fulton County, New York, pleaded guilty to a charge of second-degree murder and was convicted on that charge. After having exhausted his state remedies, he filed a petition for writ of habeas corpus in the United States District Court for the Northern District of New York, alleging, insofar as relevant, that his plea was involuntary because he was not aware that intent to cause death was an element of the offence. After protracted proceedings in the District Court, that court held as a matter of law in favour of the defendant-petitioner. This holding was affirmed, without opinion, by the Court of Appeals for the Second Circuit (516 F2d 897).On certiorari, the United States Supreme Court also affirmed. In an opinion by Stevens, J., expressing the view of seven members of the court, it was held that the judgment of conviction was entered without due process of law, since the defendant-petitioner' s plea of guilty was involuntary in that he did not receive adequate notice of the offence.White, J., joined by Stewart, Blackmun, and Powell, JJ., concurred, expressing the view that the defendant' s factual guilt of second-degree murder had never been established in any fashion permitted by the due process clause of the Fourteenth Amendment.Rehnquist, J., joined by Burger, Ch. J., dissented on the ground that, as shown by the totality of circumstances, the defendant pleaded guilty upon the advice of competent counsel and his plea was voluntary as a matter of constitutional law. OPINION OF THE COURTMr. 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 offence. 2. The case arises out of a collateral attack on a judgment entered by a state trial court in Fulton County, New York in 1965. Respondent, having been indicted 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 appeal. 3. In 1970, respondent initiated proceedings in the New York courts seeking to have his conviction vacated on the ground that his plea of guilty was involuntary. Respondent, having been indicted 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 appeal. 3. In 1970, respondent initiated proceedings in the New York courts seeking to have his conviction vacated on the ground that his plea of guilty was involuntary. The state courts denied relief on the basis of the written record. 2 Having exhausted his state remedies, 3 in 1973, respondent filed a petition for writ of habeas corpus in the United States District Court for the Northern District of New York. 4 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 offence. 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 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 be imposed." 1. On August 7, 1970, he filed both a "Notice of Motion to Withdraw Guilty Plea" and Q "Petition for Writ of Error Coram Nobis." 2. 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. 3. The order denying his petition for a writ of error coram nobis 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, 33 App Div 2d 1012 (3d Dept 1972) ; on July 6, 1972, the New York Court of Appeals denied permission to appeal. 4. Federal jurisdiction was invoked under 28 USC ?? 2241 et seq. (28 USCS ?? 2241 et seq.) 4. On March 7, 1972, the Appellate Division affirmed without opinion, People v. Morgan, 33 App Div 2d 1012 (3d Dept 1972) ; on July 6, 1972, the New York Court of Appeals denied permission to appeal. 4. Federal jurisdiction was invoked under 28 USC ?? 2241 et seq. (28 USCS ?? 2241 et seq.) 4. Upon remand the District Judge heard the testimony of several witnesses including respondent, the two lawyers who had represented him in 1965, the prosecutor, 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. 5. At the conclusion of the hearing, the District Court made only two specific findings of fact. 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 respondent "was not advised by counsellor 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 must be set aside. 6 This holding was affirmed, without opinion, by the Court of Appeals. 5. Memorandum Decision and Order dated October 29, 1974, pp. 4-5, App. pp. 116a-117a. 6. "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 counsellor 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 Court, '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 facts.' McCarthy v. United States, 394 US 459, 466 = (22 Led 2d 418 = 89 SCt 1166) (1969) . As stated by the Supreme Court, '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 facts.' McCarthy v. United States, 394 US 459, 466 = (22 Led 2d 418 = 89 SCt 1166) (1969) . Based upon the foregoing, I hold as a matter of lay; 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 unconstitutional. . . . . . . . . . . The District Court ordered that respondent be discharged from custody '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 . . . .. . . . . . 7. United States ex rel. Henderson v. Morgan, 516 F2d 897 (CA2 1975 ). I6. 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, 1976, respondent killed Mrs. Ada Francisco in her home. 7. When we 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 labourer 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.88. At the evidentiary hearing in the District Court respondent's attorney testified: "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 but the allegation was that he hit her fortyfive times with the knife." (Emphasis added.) App 67a. Apart from that hearsay, there is no evidence in the record to indicate whether the defendant struck or stabbed Mrs. Francisco many times. He didn't tell me that but the allegation was that he hit her fortyfive times with the knife." (Emphasis added.) App 67a. Apart from that hearsay, there is no evidence in the record to indicate whether the defendant struck or stabbed Mrs. Francisco many times. The indictment charged that defendant "stabbed and cut Ada Francisco with a dangerous knife, thereby inflicting divers wounds and injuries....."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 then 19 years old and substantially below average intelligence.99. His functioning I. Q. was reported by examiners as in the range between 68 and 72. 8. Respondent was indicted for first: degree murder and arranged on April 15, 1965. Two concededly competent attorneys were appointed to represent him. The indictment, which charged that he "wilfully" 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. 9. 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." 10 10. App 52a. They therefore endeavored to have the charge reduced to manslaughter but the prosecution would agree to nothing less than a 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 offences, but, as the District Court found, did not explain the required element of intent. 10. 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. 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 offence of second-degree murder, no indication that the nature of the offence 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 offence, particularly noting that respondent "meant no harm to the lady" when he entered her room with the knife.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 sentence. 11. The attorney described the incident, in part, in these words: "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 these factors together, the one idea in his mind was to take his money and get away as far as he could to avoid being transferred back. "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 (7) 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," 12. 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 the death of his victim was an element of the offence of second-degree murder. The District Judge did not indicate whether or not he credited mony.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. II13. 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 offence 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. 14. We assume, as petitioner argues, that the prosecutor had overwhelming evidence of guilt available. We also accept petitioner's characterisation 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 of support the judgment of guilt unless it was voluntary in a constitution sense. We assume, as petitioner argues, that the prosecutor had overwhelming evidence of guilt available. We also accept petitioner's characterisation 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 of support the judgment of guilt unless it was voluntary in a constitution sense. 13 and clearly the plea could not be voluntary in the sense that it constituted an intelligent admission that he committed the offence unless the defendant received "real notice of the true nature of the charge against him, the first and most universally recognised requirement of due process." Smith v. O'Grady, (1940) 312 US 329, 223 = 85 Led 859 = 61 S Ct 572. 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 US 458, 464-465 = 82 Led 1461 = 58 S Ct 1019 = 146 ALR 357 , or because he has such an incomplete under- standing of the charge that his plea cannot stand as an intelligent admission of guilt, Without adequate notice of the nature 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 US 329 = 85 Led 859 = 61 S Ct 572. 15. 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".14 That element of the offence might have been proved by the objective evidence even if respondent's actual state of mind was consistent with innocence or manslaughter. 16 But even if such a design to effect death would almost inevitably have been inferred from evidence that respondent repeatedly stabbed Mrs. Francisco, if is nevertheless also true that a jury would not have been required to draw that inference. 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, if is nevertheless also true that a jury would not have been required to draw that inference. 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 murder.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 premeditation."Although respondent was found competent to stand trial, that finding would not of course, foreclose a defence of temporary insanity.16. The offence of manslaughter in the first degree was defined to include a killing "in the heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon." See- ? 1050.17. "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 as given." Thomas v. People, 67 NY 218 (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 of N. Y., 53 NY 164, 179 (1873) . "......., jury has the right to find from the results produced an intention to effect it." People v. Cooke, 292 NY 185, 189 = (54 NE 2d 357, 359) (1944) . "......., jury has the right to find from the results produced an intention to effect it." People v. Cooke, 292 NY 185, 189 = (54 NE 2d 357, 359) (1944) . "The jury was not bound to presume an intent to kill from an intentional stabbing." Id., at 190.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 voluntary. 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 elements of the offence to which an accused person pleads guilty. 18 We think petitioner's fears are exaggerated. 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 offence; 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.18. 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 offence 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 murder.19. 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 murder.19. Since respondent did not receive adequate notice of the offense to which he pleaded guilty, his plea was in- voluntary and the judgment of conviction was entered without due process of law.20. Affirmed. SEPARATE OPTIONS 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 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 judge who concludes after trial that the elements of the crime have been proven beyond a reasonable doubt. The second is by the defendant's own solemn admission "in open court that he is in fact guilty of the offense with which he is charged: " Tollett v. Henderson, (1973) 411 US 258, 267=36 Led 2d 235=93 S Ct 1602 , i.e., by plea of guilty. The Court has repeatedly emphasised that "a guilty plea for federal purposes is a judicial admission of guilt conclusively establishing a defendant's factual guilt." (Emphasis added.) Lefkowitz v. Newsome, (1975) 420 US 283, 299 = (43 Led 2d 196 = 95 S Ct 886) (dissenting opinion of White, J.). We said in Brady v. United States, 397 US 742,748 = 25 Led 2d 747 = 90 S Ct 1463 , "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". We said in Brady v. United States, 397 US 742,748 = 25 Led 2d 747 = 90 S Ct 1463 , "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, (1970) 397 US 759-772 = (25 Led 2d 763 = 90 S Ct 1441) , we said the defendant is "convicted on his counselled admission in open court that he committed the crime charged against him"; and "a conviction after a plea of guilty normally rests on the defendant's own admission in open court that he committed the acts with which he is charged." Id., at 766 = 25 Led 2d 763 =90 S Ct 1441. (Emphasis added).1 1. 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 US 25, 37 = (27 Led 2d 162 = 91 S Ct 160 = 56 Ohio Ops 2d 85 ): "While 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." and held that where "a defendant intelligently concludes that his interests 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 innocence. North Carolina v. Alford, 400 US 25, 37 = (27 Led 2d 162 = 91 S Ct 160 = 56 Ohio Ops 2d 85) . (Emphasis added). North Carolina v. Alford, 400 US 25, 37 = (27 Led 2d 162 = 91 S Ct 160 = 56 Ohio Ops 2d 85) . (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., at 28-29 = (27 Led 2d 162 = 91 S Ct 160 = 56 Ohio Ops 2d 85), Alford 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. 21. 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 trial court has found that he was not told and did not know that intent to kill was an element of the offence with which he was charged.This case is unusual in that the offence to which the defendant pleaded was not charged in the indictment. The indictment charged first-degree murder. The defendant pleaded guilty to the included offence 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. The indictment charged first-degree murder. The defendant pleaded guilty to the included offence 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 US 459, 467 n 20 = (22 Led 2d 418 = 89 S Ct 1166) . 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 such that a judgment of conviction may validly be entered against him.22. 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 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 offence 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, (1969) 395 US 238 = (23 Led 2d 274 = 89 S Ct 1709) ; and it is on his admission that he is in fact guilty that his conviction will rest. 23. 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. 24. 23. 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. 24. The dissent concedes that the conviction in this case was entered in violation of the United States Constitution. 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 State in this case and is, in any event, untenable. In order to escape application of a constitutional rule to a particular criminal case, on non-retroactivity 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 charges 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, (1969) 394 US 459 = (22 Led 2d 418 = 89 S Ct 1166) , 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, (1969) 395 US 238 = (23 Led 2d 274 = 89 S Ct 1709) , 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, (1970) 397 US 742 = (25 Led 2d 747 = 90 S Ct 1463) , which observed in dictum in a footnote "the 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, (1969) 395 US 238 = (23 Led 2d 274 = 89 S Ct 1709)" p 749 n 6 = 25 Led 2d 747 = 90 S Ct 14.63 . However, new rules of constitutional law are not established in dicta in footnotes. 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 e. 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. Mr. Justice Rehnquist, with whom the Chief Justice joins, dissenting. 25. 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 counselled plea of guilty should be "the totality of the circumstances," ante, p -, 49 Led 2d 114. But the Court's holding can be justified only if the Constitution requires that "a ritualistic litany of the formal legal elements of an offence (be) read to the defendant," ante, p -, 49 Led 2d 114, a requirement which it purports to eschew.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, (1969) 394 US 459=(22 Led 2d 418 = 89 S Ct 1166) , 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, (1969) 394 US 831 = (23 Led 2d 16 = 89 S Ct 1498). 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 counsellor by the court, is clear.26. Halliday v. United States, (1969) 394 US 831 = (23 Led 2d 16 = 89 S Ct 1498). 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 counsellor by the court, is clear.26. McCarthy extended the definition of voluntariness to include an "un-understanding of the essential elements of the crime charged, including the requirement of specific intent.....," 394 US 459 = (22 Led 2d 418 = 89 S Ct 1166). But prior to McCarthy, and to this Court's decision of a related issue in Boykin v. Alabama. (1969) 395 US 238 (23 Led 2d 274 = 89 S Ct 1709) , the gene- rally accepted standard for a valid guilty plea in federal courts was set forth in Machibroda v. United States, (1962) 368 US 487, 493 = (7 Led 2d 473 = 82 S Ct 510) , which in turn relied on Kercheval v. United States, (1927) 274 US 220, 223 = (71 Led 1009 = 47 S Ct 552) . 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 in Machibroda: "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 ad- vice and with full understanding of the consequences." 27. 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 relies. 28. 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 defence attorneys. 28. 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 defence attorneys. While McCarthy v. United States, supra , expands the notion of "voluntariness" to include the concept that a defendant must have an "understanding of the essential elements of the crime charged, including the requirement of specific intent. ......." 394 US at 471 = (22 Led 2d 418 = 89 S Ct 1166), in order for a plea in the federal courts to be valid under Fed Rule Crim. Proc., p. 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. 29. A perusal of cases in the Courts of Appeals decided before McCarthy, supra, and Boykin, supra, indicates that, at least in the case where the defendant is counselled, there was no requirement that every element of the offence be explained to or admitted by the defendant 2 or even in every case that the consequences of the plea be enunciated. E.g., United States v. Cariola, 323 F 2d 180 (CA3 1963) ; McGrady v. Cunningharn, 296 F 2d 600 (CA4 1961), cert denied, (1962) 369 US 855 = (8 Led 2d 14 = 82 S Ct 944) ; Kennedy v. United States, 259 F 2d 883 (CA5 1958), cert denied, 359 US 994 = (3 Led 2d 982 = 79 S Ct 1126) ; United States v. Swaggerty, 218 F 2d 875 (CA 7 1965), cert denied, (1954) 349 US 959 = (99 Led 1282 = 75 S Ct 889) ; see discussion in Halliday, supra, 394 US at 833 = (23 Led 2d 16 = 89 S Ct 1498). 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 and McCarthy, respondent's plea was "voluntary" as that term was understood before the decisions in those cases.The Court disclaims such a holding Ante, p -n 18, 49 Led 2d 115. 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 and McCarthy, respondent's plea was "voluntary" as that term was understood before the decisions in those cases.The Court disclaims such a holding Ante, p -n 18, 49 Led 2d 115. 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 specific proof.In Brady v. United States, 397 US 742, 755 = (25 Led 2d 747 = 90 S Ct 1463) (1970) , the Court, in dealing with a pre-McCarthy guilty plea held that the "standard of voluntariness for guilty pleas" is that "a plea of guilty, entered by one fully aware of any commitments made to him by the court, prosecutor or his own counsel must stand unless induced by treats (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 (e.g., bribes)" (citations omitted). 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, p -, 49 Led 2d 114) citing the pre-Boykin case of Smith v. O'Grady, (1941) 312 US 329 = (85 Led 859 = 61 S Ct 572) . 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." 312 US at 334 = (85 Led 859 = 61 S Ct 572). The Court further observed that Smith's plea was involuntary because he had not received any "real notice of the true nature of the true 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. 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 offence and sentence which one is pleading, which respondent received. 30. 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. This inquiry, in turn, depends upon the sort of advice reasonably competent counsel would have been expected to give him, see Brady v. United States, (1970) 397 US 142, 756-757= (25 Led 2d 747 = 90 S Ct 1463) , and McMann v. Richardson, (1970) 397 US "159, 770 = (25 Led 2d 763 = 90 S Ct 1441) . Thus the test 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 horn book, 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 court. 31. The Court states that it "accepts petitioner's characterisation of the competence of respondent's counsel and of the wisdom of their advice to plead guilty to a charge of second degree murder." Ante, p --, 49 Led 2d 114. 32. 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 counsel withstand retrospective examination in a post-conviction hearing." 397 US at 770 = (25 Led 2d 763 = 90 S Ct 1441). In this case, counsel advised his 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 his client would not be interested. App 57a. Now, 11 years later, this Court concludes that counsel's decision was an error of constitutional magnitude. 33. In this case, counsel advised his 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 his client would not be interested. App 57a. Now, 11 years later, this Court concludes that counsel's decision was an error of constitutional magnitude. 33. Respondent was originally indicted for the crime of first-degree murder, and that indictment charged that in April 1965, he had "wilfully, feloniously and with 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." App 85a, Respondent's attorney at the habeas hearing testified that respondent: had stabbed his victim "many times" (App 67a), which suggests that experienced counsel would not consider the "design to effect death" issue to be in various dispute. The habeas judge, in deciding that there was a 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." App. at 78a. 34. 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 second degree murder. 35. 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. 35. 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. 36. There are intimations in the Court's opinion that the vice which it finds in the guilty plea is not that respondent was not informed of all the elements of the offence, but that instead he did not admit to all of those elements. Ante, p -, 49 Led 2d 115. But it is quite clear under our decision in North Carolina v. Alford, (1970) 400 US 25 = (27 Led 2d 162 = 91 S Ct 160 = 56 Ohio Ops 2d 85) , that the- latter fact, standing alone, is not sufficient to invalidate a guilty plea. In Alford the defendant not only was not asked to admit to a certain element of the offense, as here, but affirmatively denied having 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. In Alfred 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 ad- vantage." 400 US, at 31 = (27 Led 2d 162 = 91 S Ct 160 = 56 Ohio Ops 2d 85). 37. Thus the fact, relied upon by the Court, ante, pp -, 49 Led 2-d 115, that a jury would not have been required to infer the requisite intent from the facts admitted at the guilty plea is not significant. Alford, at his guilty plea, presented complete defense to the crime by stating that he had not shot anyone. 400 US at 28 n 7 = (27 Led 2d 162 = 91 S Ct 160 = 56 Ohio Ops 2d 85). 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. 38. 400 US at 28 n 7 = (27 Led 2d 162 = 91 S Ct 160 = 56 Ohio Ops 2d 85). 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. 38. The "totality of the circumstances" in this case show 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 charing "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. 39. 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. *******