Opinion
Case No. 02-40072-01-RDR
December 31, 2003
ORDER
This order is intended to address issues raised during the sentencing hearing conducted on December 30, 2003. Defendant was sentenced pursuant to his pleas of guilty to Count 3 of the indictment (interference with commerce by robbery in violation of 18 U.S.C. § 1951) and Count 4 of the indictment (brandishing a weapon during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)). The guilty pleas were made on the condition that defendant could appeal various issues to the Tenth Circuit Court of Appeals. Defendant was sentenced by the court to a term of 41 months on Count 3 of the indictment and a consecutive term of 7 years on Count 4 of the indictment. Counts 1 and 2 of the indictment were dismissed.
At the beginning of the sentencing hearing defendant, who was proceeding pro se, addressed the court regarding "affidavits" he filed on September 24, 2003 and December 4, 2003 and other issues. These issues included a claim of being pressured into making a guilty plea, not being allowed witnesses at trial, claims of unfairness by the undersigned judge, objections to the presentence report, and his desire to withdraw his guilty plea. In addition to the comments the court made during the sentencing hearing which addressed the two "affidavits" and the request to withdraw the guilty pleas, the court would add the following.
On September 18, 2003 the court issued an order which authorized trial subpoenas for approximately ten witnesses that defendant requested for the trial. The court authorized the subpoenas even though defendant had a few days earlier informed the court that he did not want any trial subpoenas. The court also denied the issuance of subpoenas to certain persons identified by defendant. The court stands upon our stated reasons for denying those requested subpoenas.
The court would also refer back to our comments on September 17, 2003 in addressing a motion to recuse filed by defendant. See also, Doc. No. 225. The court does not believe there has been any unfairness which has placed undue pressure or duress upon defendant in this matter.
During the sentencing hearing, defendant did not dispute the court's statements that he had an opportunity to be interviewed regarding the presentence report and to review the presentence report. Nor did defendant deny that he had the opportunity to go over the presentence report with his standby counsel. None of the comments made by defendant during the hearing specified a factual or legal inaccuracy in the report.
The court would reiterate that defendant did not set out a fair and just reason for withdrawing his guilty plea in all the comments that he made during the sentencing hearing and, therefore, withdrawal should not be permitted under FED.R.CRIM.P. 11(d). Under the factors listed in U.S. v. Jones, 168 F.3d 1217, 1219 (10th Cir. 1999) and discussed in some detail during the sentencing hearing, there is no proper reason for allowing the pleas to be withdrawn. Defendant's opportunity to have a trial was at hand when he made the guilty pleas. A jury had been picked and the trial had progressed into the government's case-in-chief. Having turned down two appointed counsel, defendant was proceeding as his own counsel with the assistance of a standby attorney. Defendant was advised of his rights and possible penalties orally and in writing. The presentence report procedure was explained. The fact that he may have faced a more severe penalty if he had not pleaded guilty or that the trial was not proceeding the way he wished, does not amount to unfair duress or coercion. Although defendant has complained of receiving improper advice from standby counsel or the court, he has not described in any detail what was improper or incorrect about the advice. This case is more than 18 months old. The government has had to prepare for trial more than once. The witnesses to the robbery have been on notice to be ready to appear in court more than once. The court has already had numerous hearings to prepare for trial and, of course, picked a jury. It would represent a serious inconvenience to the government and a substantial waste of judicial resources if defendant were permitted to withdraw his guilty plea. This is so particularly because defendant has never made a substantial claim of innocence in this matter. Instead, he has focused on constitutional, jurisdictional and procedural defenses in addition to bizarre claims regarding copyright status, commercial law questions and other matters.
Following comments to this effect by the court at the sentencing hearing, defendant addressed the court again concerning the validity of his guilty pleas, his objections to previous rulings of the court, renewed requests for transcripts and, for the first time during the hearing, asked for a continuance.
Regarding the continuance, the court would note that this matter was originally set for sentencing on December 12, 2003, but continued at defendant's request for 18 days. The presentence report has been prepared and available for defendant's review for a number of weeks. During the sentencing hearing, defendant did not identify with any specificity the grounds for requiring a continuance. He did not specify witnesses who could testify at a later time or what they would say. He did not specify arguments or issues he would develop or how this would benefit his defense. Nor did he explain why he was unable to better prepare for sentencing during the three months which have passed since his pleas of guilty. Defendant only mentioned that there were matters regarding downward departures and "issues going on at home" that he needed more time to develop. The court has no grounds to believe that any of these matters would ultimately be relevant and beneficial to defendant. For these reasons, the court denied defendant's request for a continuance.
Regarding transcripts, the court has not ordered transcripts prior to this time either because the transcripts were not requested or because the transcripts were not necessary to the defense of this case. If defendant wishes to request transcripts for the appeal of the case, he may do so.
The court listened to a statement by defendant's mother-in-law regarding the hardship she and her family have faced since defendant's arrest on the charges in this case. To her credit, she has undertaken to care for defendant's sons. This has been very difficult for her. The court has sympathy for defendant's family and realizes that many problems are caused by the incarceration of fathers and mothers. The court acknowledges that family hardships can sometimes provide a grounds for a downward departure. We also acknowledge that U.S.S.G. § 5H1.6 provides that: "Family ties and responsibilities and community ties are not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range." After considering the comments of defendant and his mother-in-law, the court was not convinced that this case fell outside the heartland of cases before the court and that a downward departure was justified.
Near the end of the sentencing hearing, defendant submitted a written "motion to suppress guilty plea agreement, and the continuence (sic) of sentencing." The court directed that the motion be filed. The motion states in writing the remarks defendant made orally during the sentencing hearing and presents no new issue for the court's decision. The motion was and is denied.
At the end of the sentencing hearing, the court affirmed over defendant's objection the government's motion to destroy evidence at the end of the appeals process in this case. The court reminded defendant of his rights to appeal and directed the Clerk of the Court at defendant's request to file a notice of appeal on defendant's behalf. The court also terminated the appointment of defendant's standby counsel with regard to the prosecution of defendant's appeal, although the court permitted standby counsel to continue to consult with defendant regarding other matters. Defendant objected that this was unfair. The court informed defendant that he could petition the Tenth Circuit Court of Appeals for appointment of counsel to prosecute the appeal if he wished to do so.
IT IS SO ORDERED.