Opinion
Criminal No. 03-00552-01
January 30, 2004
MEMORANDUM AND ORDER
On December 9, 2003, in the midst of a jury trial, Defendant Jose Antonio Rotger Perez entered into a written plea agreement and after a colloquy with the court he pled guilty to five counts of Hobbs Act armed robbery, in violation of 18 U.S.C. § 1951, and five counts of using and carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). Presently before the Court is Defendant's Motion To Withdraw Guilty Plea pursuant to Fed.R.Crim.P. 11(d). For the reasons discussed below, we deny Defendant's Motion To Withdraw Guilty Plea.
I. FACTS AND PROCEDURAL HISTORY
On August 28, 2003, a federal grand jury returned an indictment charging Defendant with five counts of Hobbs Act armed robbery, in violation of 18 U.S.C. § 1951, and five counts of using and carrying a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). These charges stemmed from a series of five armed robberies of small retail stores located throughout the Lehigh County, Pennsylvania area, between May 17, 2003 and May 28, 2003. Defendant was arraigned on September 22, 2003, and pled not guilty.
Defendant elected to have a jury trial. The jury was selected by this Court on Monday, December 8, 2003. Following opening statements by the prosecution and by Defendant's court appointed defense counsel, Mr. Carlos Martin, Jr., Esq., the prosecution proceeded to call three witnesses. Each witness testified on direct and cross-examination, and identified Defendant as the armed robber. Upon hearing these testimonies Defendant decided to plead guilty. After consulting with Mr. Martir, Defendant signed a written plea agreement with the government, and after an extensive colloquy on the record, pled guilty to all counts of the indictment. Defendant was under oath during the plea colloquy. Defendant agreed, inter alia, that he was satisfied with the services of his counsel, that he and his counsel fully discussed the plea agreement, that he was not threatened, promised, or coerced to plead guilty, that he had enough time to consult with his lawyer, and that he was pleading guilty because he was in fact guilty. Satisfied that Defendant entered into the plea agreement voluntarily, knowingly, and intelligently, this Court accepted Defendant's plea of guilty.
The day after the jury was selected, Defendant indicated that he was unhappy with his attorney, but he then changed his mind and decided to proceed with his attorney. Defendant had several prior opportunities to indicate any dissatisfaction with counsel before trial began but he never voiced any objection to the Court or his counsel. During the guilty plea colloquy Defendant confirmed under oath that he was satisfied with the services of his lawyer.
Defendant subsequently submitted a letter to this Court requesting that his plea of guilty be withdrawn and a plea of not guilty be entered on the record in its place. We deemed the letter to be a Motion by Defendant To Withdraw Guilty Plea, and on December 16, 2003 ordered the government to submit a reply within seven days of the Order. The government filed its response on December 22, 2003. Defendant now claims that his counsel and the prosecutor pressured and threatened him into pleading guilty, and further avers that his counsel's ineffective representation rendered his plea involuntary and unknowing. As Mr. Martir and the prosecutor dispute these claims, we scheduled a court hearing on January 15, 2004. At that hearing, Defendant contended that he was dissatisfied with Mr. Martir's representation for a number of reasons, and that Mr. Martir and the prosecutor pressured him into pleading guilty. Following that hearing, this Court ordered that Mr. Martir be relieved, and that Mr. Mark Refowich, Esq., be appointed to replace him as Defendant's new counsel. To resolve the factual disputes associated with Defendant's request to withdraw his guilty plea, we scheduled a further hearing to give Defendant an opportunity to prove that his guilty plea was the consequence of unlawful pressure and the ineffectiveness of his former counsel, Mr. Martir. This hearing was held on January 26, 2003 in open court in Easton, Pennsylvania Defendant and his former counsel at trial and the guilty plea stage, Mr. Martir, were present and offered testimony. In addition, Defendant's present lawyer, Mr. Refowich, and the AUSA Seth Weber were present as well.
II. JURISDICTION
We have jurisdiction pursuant to 18 U.S.C. § 3231.
III. DISCUSSION
A. Standard for Withdrawing Guilty Plea
A defendant is not entitled to withdraw a guilty plea simply on a whim. United States v. Brown, 250 F.3d 811, 815 (3d Cir. 2001). Fed.R.Crim.P. 11(d) sets forth the standard a defendant must meet to enable the court to grant withdrawal of a guilty plea. Rule 11(d) provides that "[a] defendant may withdraw a plea of guilty or nolo contendere: . . . (2) after the court accepts the plea, but before it imposes sentence if: . . . (B) the Defendant can show a fair and just reason for requesting the withdrawal." Fed.R.Crim.P. 11(d). In evaluating the merits of a motion to withdraw a guilty plea, we are obligated to consider three factors: (1) whether the defendant asserts his innocence; (2) the strength of the defendant's reasons for withdrawing the plea; and (3) whether the government would be prejudiced by the withdrawal. United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003); Brown, 250 F.3d at 815; United States v. Huff, 873 F.2d 709, 711 (3d Cir. 1989). The defendant bears the substantial burden of demonstrating that a "fair and just reason" exists for withdrawing the plea. United States v. Issac, 141 F.3d 477, 485 (3d Cir. 1998): see United States v. Hyde, 520 U.S. 670, 117 S.Ct. 1630, 137 L.Ed.2d 935 (1997) ("After the defendant has sworn in open court that he actually committed the crimes, after he has stated that he is pleading guilty because he is guilty, after the court has found a factual basis for the plea, and after the court has explicitly announced that it accepts the plea, [a defendant cannot] withdraw his guilty plea simply on a lark."). "A shift in defense tactics, a change of mind, or the fear of punishment are not adequate reasons to impose on the government the expense, difficulty, and risk of trying a defendant who has already acknowledged his guilt by pleading guilty." United States v. Jones, 979 F.2d 317, 318 (3d Cir. 1992), superseded by statute on other grounds as stated in. United States v. Roberson, 194 F.3d 408, 417 (3d Cir. 1999).
B. Application
As noted above, we held a hearing on January 26, 2004 for the purpose of allowing Defendant to present his claims that the ineffectiveness of his former counsel, as well as pressure from both former counsel and the prosecutor rendered his guilty plea unknowing and involuntary. Having heard testimony from Defendant and Mr. Martir, it is clear to us that Defendant's claim is utterly without merit.
As to the first factor of the tripartite test, Defendant made no meaningful assertion of innocence at any time, including at the January 26, 2004 hearing. Indeed, Defendant attested to his guilt when questioned on cross-examination. Mr. Martir testified that Defendant never once maintained his innocence to him. Furthermore, the physical evidence supporting Defendant's guilt was probably the most overwhelming we have ever seen. It included victim testimony identifying Defendant as the robber, videotapes and still pictures from four of five crime scenes in which Defendant can clearly be seen, and a videotaped admission of the Defendant identifying himself as the person pictured in the photographs, and identifying the gun pictured in the photographs as his. Moreover, at the December 9, 2003 plea colloquy, Defendant listened to the prosecution's recitation of the material facts underlying his offenses and affirmatively conceded the accuracy of those facts and his guilt. Even if Defendant had asserted his innocence, which we find he did not, "assertions of innocence must be buttressed by facts in the record that support a claimed defense." Brown, 250 F.3d at 818 (quoting United States v. Salgado-Ocampo, 159 F.3d 322, 326 (7th Cir. 1998)). As explained above, the evidence against Defendant is overwhelming, and we are hard pressed to find any facts in the record that would support any defense.
Turning to the strength of Defendant's reasons for seeking to withdraw his guilty plea, Defendant first asserts that his former counsel, Mr. Martir, rendered inadequate assistance. Defendant marshals three arguments in support of his ineffective assistance claim: (1) Mr. Martir did not meet with Defendant for a sufficient period of time; (2) Mr. Martir did not disclose any discovery to Defendant; and (3) Mr. Martir did not read, review, or explain to Defendant the guilty plea agreement.
In ascertaining whether a defendant should be permitted to withdraw a guilty plea based on an ineffective assistance of counsel claim, we look to the standards enunciated by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 687-91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must demonstrate that (1) his attorney's advice was under all the circumstances unreasonable under prevailing professional norms, United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992) (citing Strickland, 466 U.S. at 687-91, 104 S.Ct. 2052, 80 L.Ed.2d 674); and (2) that he suffered "sufficient prejudice" from his counsel's inadequate representation. Id. at 45.
We find there is no credible evidence to support Defendant's contentions that his former counsel's representation was unreasonable or that the representation prejudiced him. Initially, it is worth noting that Defendant did not write the Motion To Withdraw Guilty Plea that was submitted to this Court. Although the Defendant cannot read or write English, and thus requires the assistance of a translator, the letter motion was written in English. Defendant testified that a fellow inmate who also spoke Spanish wrote the letter on his behalf and thereafter relayed its contents to Defendant. Defendant then signed the letter.
Defendant's contention that Mr. Martir did not meet with him for a sufficient period of time is undermined by his testimony both at the January 26, 2004 hearing and the December 9, 2003 plea colloquy, as well as the testimony of Mr. Martir. At the January 26, 2004 hearing, Defendant admitted that he and Mr. Martir ably communicated in Spanish. He further conceded that Mr. Martir met with him before his initial appearance, arraignment, jury selection, trial, and guilty plea colloquy, and that the merits of his case and possible defenses were discussed at those meetings. Mr. Martir confirmed that he is folly fluent in Spanish, and that he and Defendant communicated easily. We find Mr. Martir to be a very credible witness. He testified that, in addition to two or three telephone calls, he met with Defendant approximately five or six times commencing from Defendant's initial appearance through trial, including two visits that occurred at the prison. Defendant understood the charges, the sentencing implications of being found guilty of those charges, and the overwhelming identification proof the prosecution had at its disposal. Defendant conceded that Mr. Martir advised him of the 107 year mandatory minimum he would face if convicted of all charges after trial, and further explained that the sentence arose from the stacking provisions of the guidelines. Mr. Martir selected a jury, made an opening statement, and cross-examined the prosecution's witnesses at trial. Indeed, the Defendant himself agreed that Mr. Martir was prepared for trial. In sum, it is apparent that Mr. Martir met with Defendant a sufficient number of times, and was prepared to proceed with trial.
Next, Defendant claims that Mr. Martir never showed him any of the discovery. Specifically, Defendant testified that he was never shown videotapes and photographs that the prosecutor planned to submit into evidence at trial. Mr. Martir confirmed that Defendant is in prison and he never provided the Defendant with the actual videos capturing each of the charged robberies. Defendant nonetheless realized that such videos existed, and that the still photographs the prosecution planned to introduce at trial were derived from those videos. In the context of discussing the merits of the case and the various options available to Defendant, Mr. Martir showed Defendant still photographs from four of the five charged robberies, and reviewed with Defendant all witness statements. Contrary to Defendant's claim, we find that Mr. Martir did review discovery with him prior to trial, and the still photographs which were to be used to identify Defendant at trial.
Finally, Defendant's allegation that Mr. Martir never read, reviewed, or explained to him the guilty plea agreement is contradicted once again by Defendant's own testimony and the testimony of Mr. Martir. At the January 26, 2004 hearing Defendant admitted that his former counsel discussed with him the plea agreement offered by the prosecutor. Specifically, Defendant testified that Mr. Martir explained to him that in exchange for receiving a decreased mandatory minimum of 32 years, he must sign the plea agreement and testify against his co-defendant. Mr. Martir confirmed that he spoke in detail to Defendant about the prosecution's plea offer and plea agreement in Spanish, and that the Defendant understood its ramifications. Moreover, Defendant's allegations are undermined by his own statements at the December 9, 2003 guilty plea colloquy, where he indicated under oath that he was satisfied with his counsel's representation. Specifically, Defendant stated during the plea colloquy that his attorney discussed all of the charges instituted against him, that his attorney translated and fully explained the plea agreement, an agreement that he voluntarily signed, and that he and his attorney were given enough time to speak about his decision to plead guilty. As the Supreme Court stated inBlackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977):
[T]he representations of the defendant, his lawyer, and the prosecutor at [a guilty plea] hearing, as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible.Id. (internal citations omitted). United States v. Hyde, 520 U.S. 670, 117 S.Ct. 1630, 137 L.Ed, 2d 935, applies this same reasoning to motions to withdraw a guilty plea.
Defendant claims, however, that the plea colloquy occurred quickly and that it was difficult to understand the interpreter. At the time of the plea we told Defendant to inform us immediately if he did not understand something. In addition to failing to raise this supposed issue to the Court at the time of the plea, this claim is belied by Defendant's testimony that he has comprehended the same interpreter throughout the hearing.
We find Mr. Martir to be a fully competent, effective attorney. It is readily apparent that Mr. Martir met with his client for a sufficient period of time, that Defendant understood the nature and implications of the events as they unfolded, and that Mr. Martir was prepared to try Defendant's case despite the prosecution's overwhelming evidence. Mr. Martir's advice to Defendant to plead guilty was sound, and Defendant has failed to demonstrate any prejudice stemming from Mr. Martir's representation. Accordingly, Mr. Martir's representation cannot serve as a "fair and just" reason for this Court to allow Defendant to withdraw his guilty plea.
Secondly, in support of his contention that fair and just reasons exist that justify withdrawal of his guilty plea, Defendant claims that Mr. Martir and the AUSA Seth Weber pressured him into pleading guilty. We engaged in a lengthy and thorough plea colloquy in which we specifically asked Defendant whether anyone had made any threats or promises of any sort to convince him to plead guilty. Defendant replied in the negative. As the Defendant's testimony at the January 26, 2004 hearing makes clear, we find that any pressure the Defendant felt to plead guilty stemmed not from coercion by his attorney per se, but rather from his dissatisfaction with the harsh penalties associated with his crimes. Defendant testified that he was aware that, if convicted after trial, he faced a mandatory minimum of 107 years imprisonment. He further testified that he understood that by pleading guilty, the mandatory minimum would be reduced to 32 years imprisonment. Yet throughout his testimony, Defendant vigilantly maintained that he felt pressure because his attorney stressed that he would be facing mandatory life imprisonment if he refused to accept the prosecutor's plea offer at that time. Defendant explained his failure to comprehend how simple robberies could result in a life term of imprisonment. With regard to pressure from the prosecutor, Defendant admitted that he never spoke to the prosecutor until after he decided to plead guilty, but that he understood the prosecutor to be the person desiring to imprison him for life. Significantly, Defendant stated that he was "threatened with life imprisonment," that he "felt pressure because he was facing life," and that he felt "forced" to accept the plea because "he would get life if he didn't sign it." It is apparent that Defendant felt "trapped between a rock and a hard place" and "forced" to plead guilty because of the draconian penalties attached to his crimes. Fear of punishment, however, is not the sort of threat or coercion that renders a plea involuntary, and does not constitute a "fair and just" reason to permit withdrawal of a guilty plea. Jones, 979 F.2d at 318. Further buttressing the finding that Defendant's plea did not ensue from pressure exerted by Mr. Martir, the latter testified that it was Defendant who, upon hearing three of the prosecution's witnesses testify at trial, initiated a discussion about pleading guilty. Mr. Martir, whom we find to be completely credible, further testified that he advised Defendant to plead guilty because of the stiff mandatory life sentence Defendant would surely face if the trial continued with trial. We refuse to credit the bald, unsupported assertions of Defendant that he felt "extreme pressure" based on his former attorney's advice. Accordingly, we find that neither Mr. Martir or the prosecutor pressured, coerced, or threatened Defendant to plead guilty. Rather, Defendant's knowing, voluntary and intelligent decision to plead guilty arose from his fear of confronting what he considered to be an unjustifiable life sentence.
In light of the fact that Defendant has failed to meet his burden in demonstrating that the factors discussed above warrant a withdrawal of his plea, the government need not show prejudice. United States v. Harris, 44 F.3d 1206, 1210 (3d Cir. 1995). We nonetheless find that allowing Defendant to withdraw his guilty plea would cause prejudice to the prosecution. The government was prepared, and indeed the trial against Defendant was underway. Forcing the government to expend time and resources duplicating its efforts is unjustifiable in this instance.
IV. CONCLUSION
Defendant has failed to assert his innocence, failed to demonstrate the ineffectiveness of former counsel, and failed to show that his plea was the result of undue pressures. Moreover, we find that enabling Defendant to withdraw his guilty plea would prejudice the government, and we find further that Carlos Martir, Esq., was not ineffective in any way in his representation of the Defendant. Accordingly, we find Defendant's guilty plea to be knowing, voluntary, and intelligent, and further find that Defendant has not provided any "fair and just reason[s]" for withdrawing his guilty plea. Thus, we deny Defendant's Motion To Withdraw Guilty Plea. An appropriate order follows.
ORDER
AND NOW, this 30th day of January, 2004, after a hearing in open court with the Defendant Jose Antonio Rotger Perez present, and upon consideration of Defendant's Motion To Withdraw Guilty Plea, and the Government's Response In Opposition To Defendant's Motion To Withdraw Guilty Plea, filed December 22, 2003, it is ORDERED that Defendant's Motion To Withdraw Guilty Plea is DENIED, and this matter shall proceed to sentencing.