Opinion
No. 02-10110-01-WEB
March 18, 2003
MEMORANDUM AND ORDER
This matter is before the court on the defendant's motion to withdraw his plea of guilty. (Doc. 56). The court held an evidentiary hearing and heard arguments concerning the motion on March 17-18, 2003. The court orally denied the defendant's motion at the March 18th hearing. This written memorandum will supplement the court's prior oral ruling.
I. Background.
The background behind this motion is as follows. Following the filing of a criminal complaint in this case, the defendant Jose Treto was arrested on a warrant and was brought before a Magistrate on July 22, 2002. Federal public defender Cyd Gilman was appointed to represent him. The Magistrate ordered that the defendant be detained pending trial. On July 31, 2002, an indictment was filed charging the defendant with one count of attempted distribution of more than 50 grams of a mixture containing methamphetamine. On August 1, 2002, the defendant retained attorney Mark Schoenhofer to represent him. Mr. Schoenhofer entered an appearance on the defendant's behalf and Ms. Gilman withdrew from the case. Mr. Schoenhofer filed several motions on Mr. Treto's behalf. On September 25, 2002, a superseding indictment was filed charging the defendant with one count of distribution of more than 50 grams of methamphetamine, an offense carrying a mandatory minimum sentence of ten years' imprisonment. On October 1, 2002, Mr. Schoenhofer filed a motion for a continuance of the trial date. Among other things, the motion asserted that the parties were discussing plea options and needed more time for negotiations. The court granted the motion. The defendant later appeared at a status hearing with counsel on October 30, 2002, and Mr. Schoenhofer informed the court that the defendant wanted to plead guilty. Accordingly, the court scheduled the matter for a change of plea hearing for November 4, 2002. The defendant subsequently appeared with Mr. Schoenhofer on November 4, 2002, and entered a plea of guilty to Count 1 of the Superseding Indictment. In the course of that hearing the court went through and reviewed the defendant's petition to plead guilty with him and his plea agreement. The defendant stated under oath at that hearing that he had delivered a package of fifty grams of methamphetamine to Ronald Howe as alleged by the Government. The defendant's petition to plead guilty and his plea agreement both contained provisions making clear that the defendant was subjecting himself to a mandatory minimum sentence of ten years' imprisonment by pleading guilty. The court further informed the defendant of that fact during the plea hearing. The defendant stated at that hearing that no other promises had been made to him other than those contained in the plea agreement, and he said he was satisfied with the advice and help of his lawyer. At the conclusion of the hearing, the court entered an order finding that the defendant's plea of guilty was made freely and voluntarily, and because he was guilty, and with a full understanding of its consequences. The court further found the defendant had admitted the essential elements of the offense was mentally competent. A sentencing hearing was scheduled for January 13, 2003, and a Presentence Report was prepared. On January 13th, the defendant appeared with Mr. Schoenhofer and requested a continuance of the sentencing hearing so as to permit the defendant to attempt to provide substantial assistance to the Government. The court granted the request and re-scheduled the sentencing hearing for January 28th. On January 22, 2003, defense counsel filed another motion for continuance in which he stated that both parties wanted additional time to permit police officers to attempt to corroborate information given by the defendant. The court granted the motion and re-scheduled the sentencing hearing for March 3, 2003. On January 30, 2003, Mr. Schoenhofer filed a motion to withdraw from the case. He attached a letter from the defendant in which the defendant accused Mr. Schoenhofer of doing a poor job and asking him to "have me put back on the trial docket" and withdraw from the case. At a hearing on February 3, 2003, the court granted Mr. Schoenhofer's motion to withdraw and appointed attorney Gary Owens to represent Mr. Treto. The sentencing hearing was later continued to March 17, 2003, with the understanding that Mr. Owens would consult with the defendant about his request to withdraw his plea. On March 5, 2003, Mr. Owens filed a motion on Mr. Treto's behalf asking that Mr. Treto be allowed to withdraw his plea of guilty.
This case was transferred from Judge Belot to Judge Brown on October 23, 2002. Doc. 35.
The court conducted an evidentiary hearing on March 17, 2003, and heard testimony from three witnesses: defendant Jose Treto, Wichita Police Detective Bryan Martin, and attorney Mark Schoenhofer. The defendant claimed in his testimony before this court on March 17th that Mr. Schoenhofer had told him that he would get probation if he entered a plea of guilty. He claimed the answers he gave at the plea hearing were false and says he did this because Mr. Schoenhofer told him to do so. He claimed he did not understand the matters set forth in his petition to plead guilty or his plea agreement or the questions from the court. The defendant asserted that his plea was not knowing and voluntary because he did not understand that he was subject to a mandatory minimum of ten years imprisonment, and because he believed from talking to his attorney that he would get probation if he entered a plea.
Discussion.
Pursuant to Rule 32(e) of the Federal Rules of Criminal Procedure, a district court may permit a defendant to withdraw his guilty plea prior to sentencing "if the defendant shows any fair and just reason" for such action. The following factors are considered in determining whether the defendant has demonstrated a fair and just reason: (1) the defendant's assertion of innocence; (2) any resulting prejudice to the government; (3) the defendant's delay in filing the withdrawal motion; (4) inconvenience to the court; (5) defendant's assistance of counsel; (6) knowledge and voluntariness of the plea; and (7) resulting waste of judicial resources. United States v. Graves, 106 F.3d 342, 343 (10th Cir. 1997).
An application of these factors leads the court to conclude that the defendant has not shown a fair and just reason for withdrawing his guilty plea. Although the defendant has now asserted his innocence, he did so only after it became apparent that the government did not intend to file a motion for a downward departure in his sentence. His request to withdraw the plea of guilty was not made until after the court had continued the initial sentencing hearing at least once and until just before the next scheduled sentencing hearing. The circumstances indicate that the defendant made the request because he was dissatisfied with the sentence he was facing in light of the government's apparent decision not to ask for a departure. The defendant's assertion of innocence is contrary to his sworn statements at the plea hearing and his representation to the court that he had delivered a package of methamphetamine to Mr. Howe. The defendant also confirmed at the plea hearing that the government's statement of the evidence against him was true, and he assured the court that he did not believe he was innocent and he wanted to plead guilty. The court sees no evidence to cast any doubt on the defendant's sworn representation to the court at the plea hearing that he is guilty.
The government could suffer prejudice from having to line up witnesses and prepare for trial if the motion to withdraw were granted at this late date. Also, in light of the numerous hearings already held and the likelihood of more hearings if the court granted the motion, there would be a significant waste of judicial resources if the motion were granted. The court finds Mr. Treto had the assistance of two competent lawyers prior to the time he pled guilty, and he now has the assistance of a third competent attorney. The court concludes that Mr. Schoenhofer provided the defendant with effective assistance of counsel in connection with the plea of guilty. The defendant's allegation that Mr. Schoenhofer assured him he would get probation if he pled guilty is not credible. It is highly unlikely that an experienced attorney would make such a representation, and there is no credible evidence that Mr. Schoenhofer did so. In fact, the defendant's allegation is contrary to the contemporaneous letters between himself and Mr. Schoenhofer concerning a plea of guilty, in which Mr. Schoenhofer reminded the defendant that he was facing a mandatory minimum sentence of ten years and that there was no guaranty of a reduction sentence for cooperating with the government. Moreover, the court clearly informed the defendant at the plea hearing that he was subjecting himself to a mandatory minimum sentence of ten years by pleading guilty, and the defendant represented to the court that he understood this, and that no one had made any other promises to him that were not contained in his plea agreement. The court finds no credible evidence that the defendant was unable to understand what was clearly explained to him by his attorney, by the petition to plead guilty and the plea agreement, and by the court. Based on the totality of the circumstances, the court finds that the defendant's plea of guilty was made knowingly and voluntarily, and that he understood the consequences of his plea, including the fact that he was subject to the ten year minimum sentence unless the government determined that he provided substantial assistance and moved for a reduction. The court further finds the defendant understood when he entered his plea that there was no guaranty the government would ask for his sentence to be reduced.
III. Conclusion.
The court finds that no fair and just reason for withdrawing the plea of guilty has been shown. The court further finds that the defendant's plea of guilty was entered freely and voluntarily and with a full understanding of its consequences, and because he is guilty as charged. Accordingly, defendant Jose Treto's Motion to Withdraw Plea (Doc. 56) is hereby DENIED.
IT IS SO ORDERED.