Opinion
247-2009.
Decided November 15, 2010.
Hon. Derek P. Champagne, Franklin County District Attorney, Franklin County Courthouse, Malone, New York.
Brian P. Barrett, Esq., Attorney for Defendant, Lake Placid, New York.
Defendant filed the instant motion, pursuant to Criminal Procedure Law § 220.60 (3), to withdraw the guilty plea entered in open court on June 7, 2010. Defendant claims that he had the ineffective assistance of counsel based upon several alleged grounds, that his plea was induced by the threat of a "phantom federal prosecution", and, simply, that he is innocent. The People have filed answering papers opposing the requested relief.
Procedural History
Defendant was originally charged by Indictment I-115-2008 with murder in the second degree, arson in the second degree, assault in the first degree, hindering prosecution in the first degree, criminal possession of a weapon in the second degree, and criminal use of a firearm in the first degree. He was arraigned before this Court, on Indictment I-115-2008, on December 15, 2008. Subsequently, defendant was additionally charged with one count of murder in the second degree by Indictment I-128-2008 and arraigned thereon on January 15, 2009.
Several conferences with this Court were conducted with regard to those two indictments and various motions were filed. Ultimately, the People moved to re-present the matters and this Court granted that motion by Order dated November 24, 2009. As a result, defendant was charged by the instant, superseding indictment, charging him with two counts of murder in the second degree, arson in the second degree, and burglary in the first degree. Defendant was arraigned before this Court on December 22, 2009.
An omnibus motion was filed in this matter and, by Decision and Order of this Court dated March 18, 2010, the matter was scheduled for trial on June 14, 2010. On June 7, 2010, defendant, in open court, pleaded guilty to one count of manslaughter in the first degree and burglary in the first degree in full satisfaction of the pending indictment. Sentencing was scheduled for August 9, 2010, and later adjourned by this Court to August 23, 2010.
On November 28, 2008, a notice of appearance was filed on Indictment I-115-2008 listing Attorney H. Dana VanHee and Attorney James McGraw as counsel for defendant. On January 15, 2009, a notice of appearance was filed on Indictment I-128-2008 listing Attorney VanHee, and on January 26, 2009, a second notice of appearance was filed on this indictment naming both attorneys VanHee and McGraw. On December 22, 2009, a notice of appearance was filed on Indictment I-116-2009 naming Attorney VanHee as counsel for the defendant, and on March 8, 2010, a second notice of appearance was filed for Attorney McGraw.
On August 23, 2010, Brian P. Barrett, Esq., appeared and filed with the Court a fully executed substitution of attorney form substituting Attorney Barrett as counsel for defendant. At that time this Court conducted a conference in chambers wherein Attorney Barrett requested an adjournment of the scheduled sentencing in order to file a motion with the Court withdrawing defendant's plea. The request was granted, after this Court voiced its displeasure with the fact that both the substitution of counsel and request for an adjournment were made on the morning that sentencing was scheduled to take place. Defense counsel was given until the close of business on September 3, 2010, to file and serve any motions, and the People were advised that any response thereto was to be filed and served no later than the close of business on September 10, 2010.
The Late Filing of the Instant Motion
First, this Court will address the People's position that this motion should be denied in its entirety for the simple fact that it is late. It is apparent that, although this Court made it very clear to counsel that this motion was to be filed and served on or before September 3, 2010, such was not done, without explanation, until five days later on September 8, 2010. Five days, under the circumstances present here, is a long time. The People requested, and were granted, a five day extension within which to respond to the motion. As such, the People have suffered no prejudice and, although this Court is not pleased with defense counsel's seeming ambivalence, the motion will not be denied on this basis.
Defendant's Motion to Withdraw His Plea
Criminal Procedure Law § 220.60 (3) provides that it is left to the Court's discretion whether to grant a motion to withdraw a guilty plea.
"Trial judges are vested with discretion in deciding plea withdrawal motions because they are best able to determine whether a plea is entered voluntarily, knowingly and intelligently. It follows that a motion to withdraw a guilty plea will not be granted merely for the asking, for as we have observed in another context, a guilty plea generally marks the end of a criminal case [and is] not a gateway to further litigation'" ( People v Alexander, 97 NY2d 482, 485, citing People v Taylor, 65 NY2d 1, 5).
1. Ineffective Assistance of Counsel a. Denied Attorney of Choice
Defendant makes several arguments for withdrawing his plea which generally appear to be couched in terms of an ineffective assistance of counsel claim. First, defendant argues that he was wrongfully denied his counsel of choice. Defendant claims that when he was first charged with these crimes in late November of 2008, he hired Attorney James McGraw to represent him. Defendant further provides that Attorney H. Dana VanHee was also involved in his representation and that he believed that VanHee was an attorney who worked for Attorney McGraw.
Attached to the People's response to this motion are affidavits signed by both attorneys VanHee and McGraw. It is apparent that defendant's recollection of the hiring of counsel in late 2008 differs from the recollections of attorneys VanHee and McGraw. Defendant's former attorneys both claim that the defendant asked Attorney VanHee to represent him in this matter and defendant consented to VanHee's request that Attorney McGraw additionally represent him as co-counsel. Defendant argues that he wanted Attorney McGraw to represent him and Attorney Barrett's affirmation provides,
"[h]ad the defendant known that he was going to be represented by Van Hee rather than McGraw or a member of the McGraw Firm, then the defendant would have declined to enter into such an agreement for representation".
The record of this Court does not bear this out. On January 15, 2009, the defendant was arraigned on Indictment I-128-2008. At the commencement of the arraignment the following exchange took place:
"THE COURT: This is in the matter of the People of the State of New York against Richard H. Oakes. The record should reflect that the People are present and represented by Chief Assistant District Attorney John D. Delehanty. The defendant is present and appears with Dana Vanhee who I understand is appearing of counsel to Mr. McGraw who is the attorney of record.
MR. VANHEE: Your Honor, I should be the attorney of record on this. We were sharing responsibility for the file. I do not appear, I occasionally make appearances for Mr. McGraw. I'm no longer employed by him in any capacity, and I am no longer designated as of counsel on the letterhead. I operate an independent law office just for the record."
As such, the defendant cannot now, some twenty months later, convincingly claim upset and surprise that Attorney VanHee is not employed by Attorney McGraw. What puzzles this Court even more, however, is that current defense counsel, Attorney Barrett, was present in Court on January 15, 2009, when this exchange took place. In fact, Attorney Barrett was with the defendant and Attorney VanHee in the courtroom at that time. Attorney Barrett was asked what role he played in this matter. He responded as follows:
"MR. BARRETT: Judge, I was working with Mr. McGraw and Mr. Vanhee on this case. Again, I have my own independent firm. I don't know if you want me to put one in as well as co-counsel.
THE COURT: . . . we look to Mr. Vanhee who filed a Notice of Appearance as the attorney of record, and we'll direct everything to him and expect responses from him unless he in some particular manner directs your assistance."
This Court did not require Attorney Barrett to file a notice of appearance in this matter, and no such document was filed until very recently, as referenced above. It is troubling, however, that both Attorney Barrett and the defendant have submitted sworn documents to this Court that defendant was somehow duped by attorneys VanHee and McGraw and had no knowledge that they did not work out of the same office. This Court's record clearly establishes otherwise and this prong of defendant's motion is without merit. Indeed, it approaches the frivolous.
b. "Phantom" Federal Prosecution
Defendant's second argument regarding ineffective assistance of counsel is that Attorney VanHee tricked or coerced defendant into pleading guilty by the use of the specter of a "phantom" federal prosecution. He argues that he met with Attorney VanHee at the courthouse on June 7, 2010, and, for the first time, was advised of a potential federal prosecution. In his Affirmation in support of the motion counsel for defendant provides that,
"[c]learly the assertions of Attorney Van Hee to the defendant on June 7, 2010 was a ploy to get the defendant to plea. It goes without saying that tricking' your client into taking a plea is ineffective assistance of counsel."
In support of his argument that the threat of federal prosecution never existed, defendant attaches as an exhibit to his moving papers a March 11, 2010, letter from the United States Department of Justice, Criminal Division, to him. Counsel for defendant cites this letter as an indication to defendant that "this matter is an issue of State jurisdiction". This exhibit appears to be taken out of context.
The March 11, 2010, letter is in response to correspondence from the defendant to the United States Department of Justice. It is unclear precisely what "matter" the attached letter refers to. It appears that defendant wrote to the United States Department of Justice seeking federal assistance of some kind. If defendant's initial correspondence to the United States Department of Justice were included as an exhibit, it would be clear what the March 11, 2010, letter refers to. The letter does not, in any way, refer specifically to this criminal transaction or proceeding. Without additional information, this exhibit does nothing to convince this Court that a potential federal prosecution never existed.
At the time defendant's plea was placed on the record before this Court, the District Attorney, in his capacity as a Special Assistant United States Attorney, placed a verbal authorization on the record that, upon defendant's plea, there would be no federal prosecution of defendant in relation to this matter. He further provided that this commitment would be put in writing by the United States Attorney for the Northern District of New York, Richard Hartunian.
In his motion, defendant argues that this commitment letter never surfaced and that "this alone is a breach of the plea agreement and should require the Court to rescind the defendant's plea and restore him to his prior status." In their response, the People attach a letter dated June 24, 2010, from United States Attorney Hartunian to the Franklin County District Attorney which sets forth the non-prosecution agreement placed on the record on June 7, 2010, by District Attorney Champagne.
A review of this Court's file in this matter reveals a copy of the same letter, marked received by the Court Clerk's office on June 25, 2010. There is no indication that this letter was ever copied to attorneys VanHee, McGraw, or Barrett or to defendant himself. Counsel for defendant should have properly been provided with a copy of this correspondence. This error, however, does not rise to the level making it necessary to vacate defendant's plea. Neither is it a breach of defendant's plea agreement. The June 24, 2010, letter confirms the existence of a possible federal prosecution in this matter and the commitment that defendant's plea on June 7, 2010, removed the potential federal prosecution from the table. Clearly, the record contradicts this particularization of a claim of ineffective assistance of counsel. Once made aware of the potential prosecution, defense counsel had an obligation to discuss the same with his client.
c. Counsels' Conflict of Interest
Next, defendant argues that the representation by attorneys VanHee and McGraw of Randy Square and Carrie Square created a conflict. He further references a letter from this Court to defendant dated April 16, 2010, in this regard. As the letter indicates, at a conference on April 12, 2010, Attorney VanHee disclosed that the defendant had some concerns with regard to the representation of the Squares. Based upon the information provided, this Court did not believe that an absolute conflict existed and relayed this to the defendant. This April 16, 2010, correspondence provided, in part,
"you have retained Mr. VanHee and Mr. McGraw to represent you in the matter pending in this Court. You have every right to continue their representation or to arrange for substitute counsel if you no longer wish them to represent you because you perceive a conflict or for any other reason. The purpose of my letter is to advise you that it is important for you to make a determination as to whether or not Mr. VanHee and Mr. McGraw will continue to represent you or you will seek other counsel."
The letter concluded with the Court providing defendant with the date of May 3, 2010, to make a decision in this regard and to notify the Court. Defendant was advised that he was free to substitute counsel as he saw fit and was encouraged to discuss the matter with attorneys VanHee and McGraw. The Court heard nothing further in this regard from defendant.
First, counsel for defendant states that it was improper for this Court "to opine on a legal issue to a defendant who stands before it." This Court did no such thing. Information was provided to this Court which it had to address. In the April 16, 2010, correspondence, this Court outlined the information it had, advised defendant of his right to the counsel of his choice, provided a time frame within which defendant was to respond, and encouraged defendant to further discuss this issue with his then counsel. Such is the responsibility of the Court.
In his affidavit, defendant states that he believes attorneys VanHee and McGraw "never pushed me to plea until after I found out that they were representing Randy." In his Affirmation in Response, the Assistant District Attorney points out that, in his own affidavit, defendant never states that he wanted to change attorneys at any time. Neither does defendant explain his failure to respond, in any way, to this Court's April 16, 2010, correspondence.
Counsel for defendant goes on in his Affirmation to state that this correspondence from the Court "caused the defendant to continue with his then counsel who thereafter caused the defendant to make an involuntary plea." How this letter "caused" the defendant to remain with attorneys he now claims were pushing him to plead is unclear to say the least.
A review of this Court's file reveals that the defendant, himself, has sent various correspondence to this Court on three separate occasions. The first, received June 25, 2010, was addressed to the Chief Clerk of this Court; the second, received August 23, 2010, was addressed directly to the Court; and the third, received September 9, 2010, was addressed to the Chief Clerk. As such, defendant has demonstrated that he is certainly capable of corresponding with this Court when he chooses. The fact that he failed to so correspond in response to the April 16, 2010, letter regarding his concerns about counsel and representation speaks volumes. This prong of the motion must also be denied.
2. Defendant's Plea as Being Involuntary or Unknowing
Defendant claims that counsel coerced him to enter a guilty plea with the use of the possibility of what defendant claims to be a "phantom" federal prosecution and that the plea was not fully explained to him. At his meeting with Attorney VanHee prior to entering his plea on June 7, 2010, defendant claims that he was first told of the possible federal prosecution, that he was told that he had to decide that day whether to take the plea offer, and that he was told that, if he did not plead guilty, then he would be charged federally, convicted, and sentenced to two life sentences. As discussed above, the potential federal prosecution was real, and counsel for defendant had an obligation to disclose the possibility and potential ramifications to him. Further, defendant provides in his Affidavit in support of the instant motion that,
"I was then brought into the court and Judge Main talked for a while and asked me some questions. I did not know what I was doing or what I was pleading to and I did not understand what Judge Main was talking about. I asked Dana and he whispered to me yes' or no' and that's what I said."
As the Assistant District Attorney points out in his Affirmation opposing the motion, such is belied by the record of the plea proceeding. The record clearly reflects that the terms of the plea agreement were recited on the record and that defendant stated that he understood that he was pleading guilty to manslaughter in the first degree and burglary in the first degree. Defendant further admitted to committing those acts. The defendant acknowledged his understanding of the rights that he was giving up by entering the plea and that he had had a sufficient opportunity to discuss the matter with attorneys VanHee and McGraw. Importantly, the following exchange took place on the record:
"THE COURT: Are you offering these pleas of guilty this afternoon as a result of any force or threat or coercion directed at you by anyone?
THE DEFENDANT: No, your Honor.
THE COURT: Are you doing so freely and voluntarily?
THE DEFENDANT: Yes, your Honor."
The record of the plea proceedings on June 7, 2010, clearly reveals that defendant's guilty plea was, in fact, knowingly, intelligently, and voluntarily entered. Any claim to the contrary is belied by defendant's own plea allocution ( People v Turner , 23 AD3d 503 ; People v Bonilla, 285 AD2d 746). As such, this prong of defendant's motion must also be denied.
3. Defendant's Claim of Innocence
In the final prong of defendant's motion to withdraw his guilty plea, defendant claims that he is innocent of the crimes to which he pleaded guilty. In support of this claim, counsel for defendant makes several arguments. First, he argues that defendant's co-defendant, Rhonda Dufoe, although having previously implicated the defendant, has written to defendant and retracted those statements. Attached to defendant's motion are copies of letters that are purportedly from this co-defendant which allege that she previously lied to police. Next, defendant attacks the credibility of two "jailhouse informants" and claims to have never discussed this matter with them. Raising questions, post-plea, about the truthfulness and veracity of a co-defendant and two informants does little to substantiate a claim of innocence and is insufficient to support an application to withdraw a plea.
Defendant further argues that, immediately following his guilty plea on June 7, 2010, he and Attorney VanHee met with an investigator with the New York State Police who questioned him regarding the manslaughter and burglary charges to which he had just pleaded. Defendant claims that he denied taking part in any such criminal activity. As the People point out in their response, the interview was brief because defendant kept changing his answers. This Court has listened to the recording of the interview and finds the recording to be brief and confusing. The defendant does not, however, clearly deny taking any part in the crimes to which he had just pleaded guilty.
Defendant also points to the fact that, two days after the plea was entered, he went to the press and proclaimed his innocence. All of these claims of innocence are unsubstantiated and/or self-serving. Most importantly, they come after the defendant entered a knowing and intelligent plea before this Court. Defendant has provided this Court with nothing more than "buyer's remorse" supported by naked assertions of innocence which are insufficient to support a motion to withdraw a plea of guilty ( People v Carreras, 209 AD2d 350; People v Billings, 208 AD2d 941).
Based upon this Court's review of all of the papers now before it, the defendant's motion will be denied in its entirety, without a hearing. "Only in the rare instance will a defendant be entitled to an evidentiary hearing . . . The defendant should be afforded reasonable opportunity to present his contentions and the court should be enabled to make an informed determination" ( People v. Tinsely, 35 NY2d 926, 927). This Court, at defendant's request, adjourned sentencing in this matter to permit defense counsel time to make the instant written motion. There is nothing in the moving papers which requires a hearing. There is no reason that defendant's pleas of guilty, previously accepted by the Court as knowingly and voluntarily made, should be disturbed.
"The court did not abuse its discretion in denying without a hearing a motion defendant made at sentencing to withdraw his plea of guilty, defendant's bare claims of innocence of the crime charged and ignorance of the consequences of pleading guilty notwithstanding, where the record of the plea proceedings shows that defendant admitted his guilt of the crime charged in the presence of counsel, was carefully advised by the court as to the consequences of pleading guilty, and otherwise entered his plea knowingly and voluntarily" ( People v Lawton, 203 AD2d 141, 142 [internal citations omitted]).
For the reasons set forth herein, it is
ORDERED that defendant's motion to withdraw his plea, pursuant to Criminal Procedure Law § 220.60 (3), be, and the same hereby is, denied, in its entirety; and it is further
ORDERED that the defendant, Richard "Dicky" Oakes, shall appear before this Court for sentencing on the 22nd day of November, 2010, at 9:00 a.m., or as soon thereafter as counsel can be heard.