DANNY C. REEVES, District Judge.
Defendant Timothy Harris has filed a motion to withdraw his guilty plea. [Record No. 410] The Court denied Harris's motion at a hearing held earlier this date. This Memorandum Opinion and Order supplements the Court's oral findings and conclusions regarding the defendant's motion.
Harris pled guilty to Count 1 of the superseding indictment on December 18, 2017. [Record Nos. 305, 402] Count 1 charged that he conspired with others to knowingly and intentionally distribute methamphetamine and heroin mixtures in violation 21 U.S.C. §§ 841(a)(1) and 846.
Harris's sentencing hearing was originally scheduled for March 22, 2018. However, approximately one week before this hearing, the Court received correspondence from Harris in which he expressed dissatisfaction with his decision to plead guilty in light of the possible sentence he might receive. [Record No. 357] Harris suggested in this correspondence that his retained attorney, Mark Chandler, provided inadequate representation by leading him to believe that he would receive a shorter term of imprisonment than reflected in his Presentence Investigation Report. Id.
At the beginning of the March 22nd hearing, the Court addressed the allegations contained in Harris's letter. The following exchange occurred:
[Record No. 403, p. 3]
The parties complied with the Court's request, with AUSA Trimble confirming that a notice of enhanced penalties was filed pursuant to 21 U.S.C. § 851 on the day that Harris's counsel filed the motion for re-arraignment (December 14, 2017). This point had been the subject of earlier discussions and/or negotiations, since Harris was believed to have an additional qualifying felony conviction that would have increased his sentence to life imprisonment if he proceeded to trial and was convicted of the pending charges. However, throughout the parties' negotiations, the United States always contemplated filing a notice for enhanced penalties under § 851 with respect to one of Harris's prior convictions.
In addition to addressing the potential enhanced penalties in the written Plea Agreement reviewed and signed by Harris prior to the re-arraignment hearing held on December 18, 2017, the parties made nonbinding recommendations to the Court concerning guidelines calculations in that document. Regarding these issues, AUSA Trimble explained as follows:
[Id. at pp. 5-7] Counsel for the government was excused from the courtroom following this questioning.
After the Court summarized the defendant's letter, Harris's attorney made the following representations regarding Harris's claim that he had been coerced into entering a guilty plea against his will:
[Sealed Record No. 404, pp. 3-6]
Chandler then provided further explanation regarding his plan to ask for a departure from the guideline range due to potential overstated criminal history. Thereafter, Defendant Harris was given the opportunity to provide additional information concerning his claims. After acknowledging that he met "many times"
Against this backdrop, it is necessary to go back to parties written Plea Agreement and review discussions and representations made during the re-arraignment hearing to look for any evidence that Harris: (i) was coerced by his retained counsel; (ii) expressed any belief that the proposed guideline range — as outlined in the parties' Plea Agreement — was binding on the Court; or (iii) did not fully or completely acknowledge his guilty. But a full and complete review reveals no such credible evidence.
Harris signed the final version of his written Plea Agreement on December 14, 2017 (the same day that he moved for re-arraignment). [Record No. 306] The documents follows the format of plea agreements commonly used in this district. In paragraph 1, the parties agreed that Harris would enter a guilty plea to Count 1 of the Superseding Indictment which charged him with conspiring to distribute 500 grams or more of a mixture or substance containing methamphetamine and 100 grams or more of a mixture or substance containing heroin. In exchange, the remaining counts would be dismissed at the time of sentencing. Next, the parties outline the elements that the government would be required to prove if the matter proceeded to trial on Count 1 (paragraph 2 of Plea Agreement). In paragraph 3, the parties outline the facts that could be proven regarding Count 1. Harris acknowledged that the facts were correct and could be proven by the requisite standard if the matter proceeded to trial.
Paragraph 4 references the enhanced statutory penalty Harris faced as a result of a prior qualifying felony drug conviction. In other words, at the time Harris signed the Plea Agreement, the parties contemplated and acknowledged that notice of the qualifying conviction would be filed pursuant to 21 U.S.C. § 851.
Then, in paragraph 5, the parties made certain non-binding recommendations to the Court regarding calculation of the defendant's guideline range of imprisonment. This paragraph states:
(Italics added by the Court for emphasis.) [Id. pp. 2-3]
As noted previously, a hearing was held on December 18, 2018, for the purpose of allowing Harris to enter a guilty plea to Count 1 of the Superseding Indictment pursuant to the written Plea Agreement negotiated with the United States. [Record No. 402] After being sworn to testify truthfully, Harris was reminded of the consequences of providing false statements during the proceeding. [Id. at pp. 2-3] Likewise, he agreed to advise the Court if he did not understand a particular question being asked. [Id. at p. 4] Harris then explained, in response to specific questions, that he has an eleventh grade education but had obtained a general equivalency diploma and is able to read and write.
Harris was not receiving medical or mental health treatment at the time of the hearing. In fact, he has not previously received any type of mental health counseling or treatment and has never been diagnosed as having any mental health issue or condition. And at the time of the hearing, Harris was not under the influence of drugs or alcohol. [Id. at p. 6]
Neither Chandler nor Harris indicated at any point during the December 18 hearing that either had problems communicating about the case. And when asked about his satisfaction with the representation provided by Chandler and his review of the written Plea Agreement, Harris gave the following, unambiguous and unequivocal responses:
[Id. at pp. 8-9]
After AUSA Trimble reviewed the relevant portions of the document, Harris acknowledged that it accurately represented his agreement with the government. This includes paragraphs 12 (that the Plea Agreement and supplement contained the complete and only agreement between the United States and the defendant and that the United States had not made any other promised not contained in the agreement) and paragraph 14 (that Harris's attorney had fully explained the Plea Agreement to the defendant and that his entry into it was voluntary). [Id. at pp. 12]
Harris then responded to the Court's questions touching on other promises, threats, pressure, or duress leading to the guilty plea:
[Id. at pp. 12-13]
Next, Harris acknowledged the statutory penalties outlined in the Plea Agreement (i.e., not less than twenty years and not more than life imprisonment) were enhanced penalties based on a prior, final felony drug conviction from the Jefferson Circuit Court (Case No. 07-CR-3619-001) which he also confirmed. [Id. at pp. 13-14] And after explaining the procedure for resolving objections to any guideline calculations contained in his PSR, the Court specifically explained that the final guideline range could not be determined in advance of the sentencing hearing.
[Id. at p. 16-17]
After reviewing and discussing: (i) the statutory factors to be considered prior to imposition of the sentence [id. at pp. 18-19] and (ii) the waiver provisions contained in paragraphs 7 and 8 of the Plea Agreement [id. at pp. 19-20], the Court cautioned Harris that he would not be able to withdraw his guilty plea if he were later dissatisfied with the final sentencing guidelines range.
[Id. at pp. 21-22]
Next, after being advised of the rights that he would be waiving by entering a guilty plea, Harris pleaded guilty, offering the following explanation of his conduct:
[Id. at pp. 26-27]
Finally, after accepting the defendant's guilty plea, the hearing concluded with the following exchange with the defendant:
[Id. at pp. 29-30]
The PSR was prepared and submitted to the parties for review on or about February 16, 2018. It was later revised on March 12, 2018. During the intervening period, Harris's attorney (Mark Chandler) submitted an objections letter to the Probation Officer responsible for preparation of the PSR. The letter is dated March 1, 2018, and outlined objections to two specific offense characteristics which had been applied in the PSR to enhance Harris's guidelines range.
Additionally, counsel objected to a criminal history point being assessed for a conviction identified in paragraph 90 of the PSR for failure to maintain insurance. After a three-level reduction for acceptance or responsibility, Harris's recommended Total Offense Level in his PSR was calculated as 41. This, combined with a Criminal History Category of V (based on 12 criminal history points), resulted in a non-binding advisory guideline for imprisonment of 360 months to life.
With this summary, the Court returns chronologically to the aborted sentencing hearing of March 22, 2018. At the conclusion of this hearing, the Court advised Harris of the possible consequences of an unsuccessful attempt to withdraw his guilty plea as well as some of the factors that would need to be addressed if his subsequently filed such a motion. However, based on the claims being made, the Court did not address at that time whether Harris could withdraw his guilty plea. Instead, Chandler was permitted to withdraw from the case and new counsel was appointed under the CJA following the submission of a financial affidavit by the defendant.
The sentencing hearing was rescheduled for Friday, May 11, 2018. Id. Following his appointment, Harris's new attorney requested copies of the transcripts of the December 18, 2017, and March 22, 2018 hearings. Those transcripts were filed in the record on April 12, 2018. [Record Nos. 402, 403 and 404]
Appointed counsel filed the present motion on May 3, 2018.
(Italics added by the Court for emphasis.) [Record No. 414]
A defendant does not have an absolute right to withdraw a guilty plea and bears the burden of proving that he is entitled to do so. United States v. Ellis, 470 F.3d 275, 280 (6th Cir. 2006) (citing United States v. Mader, 251 F.3d 1099, 1105 (6th Cir. 2001)). Rule 11(d)(2)(B) of the Federal Rules of Criminal Procedure provides that a defendant may withdraw a guilty plea after the court accepts it, but before the Court imposes a sentence if the defendant can show a "fair and just reason" for requesting the withdrawal. This rule is designed so that a "hastily entered plea made with an unsure heart and confused mind" may be undone. United States v. Alexander, 948 F.2d 1002, 1004 (6th Cir. 1991). However, the rule does not permit a defendant to "make a tactical decision to enter a plea, wait several weeks, and then obtain a withdrawal if he believes he made a bad choice in pleading guilty." Id. (citations omitted).
The Court considers a number of factors in determining whether the defendant has shown a fair and just reason for requesting withdrawal. United States v. Haygood, 549 F.3d 1049, 1052 (6th Cir. 2008). They include:
Id. (citing United States v. Bashara, 27 F.3d 1174, 1181 (6th Cir. 1994)). No one factor controls and the relevance of each varies based on the "circumstances surrounding the original entrance of the plea as well as the motion to withdraw." Id. (citations omitted).
Harris contends that the circumstances surrounding the entry of the guilty plea (Factor No. 4) are such that they "overwhelm and overcome" the other factors the Court is to consider. However, an analysis of this factor, either alone or in combination with all others that are relevant her, do not support the defendant's argument.
"When a defendant has a change of heart and asks the Court to withdraw his plea, he must do so without unwarranted delay." United States v. Culp, 608 Fed. Appx. 390, 391 (6th Cir. 2015). Harris reviewed and then signed his final, written Plea Agreement on December 14, 2018. However, he did not express dissatisfaction with his counsel's performance or his interaction with him until after the PSR was submitted for the parties' review. Although a precise calculation is debatable, Harris's March 9, 2018, letter was sent approximately 80 days after entry of his guilty plea. Numerous decisions have found that delays of this magnitude weigh against granting a motion to withdraw. See United States v. Benton, 639 F.3d 723, 727 (6th Cir. 2011) ("this Court has declined to allow plea withdrawal when the intervening time periods were as brief as one month."); United States v. Durham, 178 F.3d 796, 798-99 (6th Cir. 1999) (when defendant waited 77 days to file a motion to withdraw, the strongest factor supporting the district court's denial of the motion was the interval between the plea and the filing of the motion); United States v. Baez, 87 F.3d 805, 808 (6th Cir. 1996) (finding 67 days excessive); United States v. Goldberg, 862 F.2d 101, 104 (6th Cir. 1988) (finding 55 days excessive); United States v. Spencer, 836 F.2d 236, 239-40 (6th Cir. 1987) (refusing to allow a defendant to withdraw his guilty plea when he waited five weeks after entry to file motion).
Further, Harris has not adequately explain why he did not complain about his attorney at an earlier time. But that reason is obvious to the Court. First, Harris did not have any good options. The evidence against him is particularly strong, as he has admitted. Second, the trial date was quickly approaching and several co-defendants were expected to testify against him. And Harris could not realistically expect to receive another continuance. Third, the government could file notices of prior convictions under 21 U.S.C. § 851 which would essentially guarantee a life sentence if he proceeded to trial and was convicted. As a result, Harris accepted the last and best offer from the government. But with acceptance of responsibility and the possibility of arguing that his criminal history was perhaps overstated, he still would be in a position to argue for a reduced sentence.
During the change of plea hearing, the Court explained — and Harris acknowledged — that his guidelines range would not be known until the PSR was prepared. Harris was not surprised by this. In fact, he acknowledged in his written Plea Agreement that the recommendations that were contained in paragraph 5 were just that: non-binding recommendations to the Court.
Attorney Chandler aptly described Harris's reaction as "sticker shock" when he received and reviewed the PSR. Thus, the Court concludes that Harris settled on a plan at that time of trying to back out of his agreement reached with the government. And the only way to do this would be to assert that he had been misled (as claimed in his first letter) or coerced (as claimed in his second letter and motion) by his retained attorney. However, the Court rejects Harris's attempt to avoid his admissions, under oath, based on claims that his attorney was forcing him to agree to the questions posed by the Court. It bears repeating: the undersigned carefully considered each answer while observing both Harris and Chandler. The defendant was given ample time to respond and he did so without duress or pressure from anyone.
Importantly, Harris has not asserted that he is innocent.
And contrary to his claims, the circumstances surrounding the entry of Harris's guilty plea weigh against granting the relief requested. Harris's complaints about his retained attorney were not raised or even mentioned during the December 18, 2017, hearing. Instead, when Harris was questioned by the Court, he responded that he was satisfied with the advice and representation provided by Chandler. [Record No. 402, p. 8] In evaluating whether the circumstances provide reason to permit the defendant to withdraw a guilty plea, the Court considers whether the defendant was able to fully understand the plea agreement's terms and agreed to it knowingly and voluntarily. Here, as outlined more fully above, there is absolutely no indication that Harris did not fully understand the terms of his Plea Agreement. Further, there is absolutely no basis to conclude that the guilty plea was anything other than knowingly and voluntary made. See Baker v. United States, 781 F.2d 85, 88 (6th Cir. 1986) (citing Brady v. United States, 397 U.S. 742, 747 (1970)). The undersigned closely examined Harris regarding, inter alia, his: (i) competence; (ii) understanding of the consequences of his actions, and (iii) the voluntariness of the plea before accepting it as required by Rule 11(b) of the Federal Rules of Criminal Procedure.
It bears repeating that Harris's letters to the Court reveal the real reason he wishes to withdraw his guilty plea; he had hoped for (or perhaps expected) a lower recommended guideline range for incarceration in his PSR. He stated in his initial letter that Chandler "had [him] under the impression that [he] was looking at a lot less time than [he is] facing at this point." [Record No. 357, p. 1] And in his most recent letter, Harris states that, prior to his signing the written Plea Agreement, Chandler "pulled out a federal guidelines manual and pointed it out in `black and white' and said that would be [his] range . . . he did not say there would be any differences made." [Record No. 414] But these claims are insufficient in light of the clear warnings given during the December 18, 2017, hearing regarding the matter in which the guidelines range would be calculated and the effect of the parties' recommended guidelines calculations. If Harris was confused or had been misled as his claims, the Court's colloquy with him cleared up any such misunderstanding. In short, by the time he pleaded guilty to Count 1 of the Superseding Indictment, Harris was fully informed, fully aware, and completely knowledgeable of the consequences of his decision.
Next, Harris's background and experience, particularly his experience with the criminal justice system, does not weigh in favor of allowing him to withdraw his plea. He has convictions in fourteen cases, including two felony drug convictions. Harris's criminal history begins when he was 18 years' of age. As a result of a robbery conviction, he was sentenced to ten years' of incarceration. And while he was granted shock parole a few months after his sentence was imposed, Harris did not take advantage of that opportunity. Instead, he has continued to commit offenses on a regular basis. As a result, he has twelve criminal history points, placing him in Criminal History V under the United States Sentencing Guidelines. This prior experience suggests that, by December 2017, he fully understood the nature of the process and was aware of the ramifications of entering a guilty plea. See United States v. Catchings, 708 F.3d 710, 719 (6th Cir. 2013) (recognizing that a defendant in Criminal History Category III has fairly extensive prior experience with the criminal justice system). And the fact that his prior experience concerns state offenses is of no consequence. United States v. Goodloe, 393 Fed. Appx. 250, 256 (6th Cir. 2010).
Considering all of the above factors, there is simply no indication that Harris's decision to enter into a guilty plea was a hasty decision made with an "unsure heart and confused mind." See Alexander, 948 F.2d at 1004. Certainly, the alleged reasons for Harris's decision to withdraw his plea would have been known to him within days of entering it. However, Harris waited until after the presentence report was completed and the sentencing realities became more known before deciding that pleading guilty was the wrong decision. But this is not a valid basis for withdrawing a guilty plea. Id. In short, the following factors weigh against allowing the defendant to withdraw his guilty plea: (1) the amount of time that has lapsed between his guilty plea and the notice provided to the Court in his first letter that he wished to withdraw the plea due to claims against his retained counsel; (2) the lack of any valid reason for failing to move for withdrawal earlier in the proceeding; (3) the failure to assert a claim of actual innocence after the change of plea hearing in December 2017; (4) the circumstances underlying the entry of the guilty plea. Contrary to his arguments, these circumstances support the Court's conclusion that Harris's decision is based on the recommended guidelines calculations contained in his PSR; and (5) the defendant's nature and background, which includes consideration of (6) Harris's extensive history within the criminal justice system.
Finally, the government is only required to prove prejudice if the defendant is able to establish a fair and just reason to grant withdrawal. United States v. Wynn, 663 F.3d 847, 850 (6th Cir. 2011); United States v. Spencer, 836 F.2d 236, 240 (6th Cir. 1987). Accordingly, no showing of prejudice is required. However, the Court cannot conclude that prejudice would not result if the defendant were allowed to withdraw his guilty plea at this late date. The Sixth Circuit has recognized that the cost associated with a second preparation for trial can constitute prejudice under the applicable rule. See United States v. Durham, 178 F.3d 796, 799 (6th Cir. 1999). Because Harris has failed woefully to meet his burden of showing that a fair and just reason exists to allow the guilty plea to be withdrawn, the Court need not reach any final conclusion concerning the extent of prejudice that would be suffered by the government (i.e., preparation for trial, location of fact witnesses, retention of expert witnesses) if the relief sought were granted. Clearly, however, a substantial degree of prejudice would occur if Harris's guilty plea were set aside.
Based on the foregoing analysis, and as further explained during the hearing held this date, it is hereby
1. Chandler did not bring evidence in the case for Harris to review. Instead, he simply presented Harris with sentencing and plea information.
2. Chandler did not perform pretrial research or review possible defenses despite being requested to do so.
3. Chandler was more concerned with his fees than possible defenses to the charges Harris faced.
4. Chandler "became aggressive" with Harris regarding signing the plea agreement and also advised Harris that he had talked with family members who expressed the desire that Harris plead guilty.
5. Chandler told Harris how to respond to the Court's questions during the change of plea hearing and Harris simply did as he was told.
[Record No. 410, pp. 1-2]
Harris's present counsel recites the factors that the Court should consider in determining whether there is a fair and just reason to allow a defendant to withdraw a guilty plea. [Record No. 410, pp. 2-3] But he then argues that the enumerated factor regarding the circumstances underlying entry of the plea is so overwhelming that it overcomes all other factors the Sixth Circuit has identified for consideration. Thus, in essence, Harris claims that ineffective assistance of counsel provided by Chandler is all that need be shown to prevail. While the Court will certainly consider the merit of this claim (i.e., the fourth factor), it will also consider all other relevant factors.
