Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-16-2002

USA v. Dent
Precedential or Non-Precedential: Non-Precedential

Docket No. 99-1780




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Recommended Citation
"USA v. Dent" (2002). 2002 Decisions. Paper 510.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/510


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                              NOT PRECEDENTIAL

              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                           No. 99-1780
                         ________________

                    UNITED STATES OF AMERICA

                                v.

                    MICHAEL DENT, Appellant
               ____________________________________

         On Appeal From the United States District Court
             For the Eastern District of Pennsylvania
                 (D.C. Crim. No. 92-cr-00223-03)
            District Judge: Honorable Robert F. Kelly
             _______________________________________

            Submitted Under Third Circuit LAR 34.1(a)
                          July 29, 2002
          Before: BECKER, Chief Judge, ROTH and RENDELL
                         Circuit Judges.

                     (Filed August 16, 2002)

                     _______________________

                             OPINION
                     _______________________

BECKER, Chief Judge.
     This is an appeal from a final order of the District Court for the Eastern District of
Pennsylvania denying petitioner Michael Dent’s motion under 28 U.S.C.   2255 to
vacate, set aside, or correct his sentence. We issued a certificate of appealability, and
have jurisdiction over this appeal. This case was previously before us on direct appeal.
See United States v. Dent, 

 (3d Cir. 1998), cert. denied, 

(1999), post-conviction relief denied, Civ. A. 99-2878, 

 (E.D. Pa. Sept.
10, 1999).
     Dent contends that the District Court erred in denying his 2255 motion without a
hearing on his allegations that trial counsel rendered ineffective assistance by failing to
properly advise him about the maximum penalties that could be imposed in the event that
he proceeded to trial and was found guilty. More specifically, Dent alleges that his
attorney went over the agreement with him and advised him that he would be classified
as a career offender due to two previous felony convictions and that he would receive a
sentence of 21-27 years whether or not he accepted the plea offer; he claims that this
frightened him into not accepting the plea, and that he did not find out that he would not
be classified as a career offender until he received the pre-sentence report.
     The government notes that the District Court properly accepted as true Dent’s
 2255 claim that he would have accepted the government’s plea offer if counsel had not
told him that he was a career offender, and that it then concluded from the record without
conducting an evidentiary hearing under United States v. Day, 

 (3d Cir.
1992), that trial counsel’s statements did not fall below an objective standard of
reasonableness in light of Dent’s extensive criminal history involving drug trafficking
crimes. The government, citing an apparent acknowledgment by trial counsel, which
was not disclosed in the District Court, then notes that the appellant was not fully aware
of the details surrounding the appellant’s prior conviction, and acknowledges that Dent
"has raised certain factual matters which appear to necessitate an evidentiary hearing."
The government goes on to state that it:
                    agrees that in an abundance of caution, the appellant’s case
          should be remanded to the district court for an evidentiary
          hearing on the sole issue for which a certificate of
          appealability was granted, that is, ’whether counsel was
          ineffective in failing to properly advise Dent about the
          proposed plea agreement.’

     We agree that this is the proper course to follow. Accordingly the order of the
District Court will be vacated and the case remanded for a hearing and factfinding.
                      _____________________
TO THE CLERK:
     Please file the foregoing Opinion.
                              BY THE COURT:

                               /s/ Edward R. Becker
                              Chief Judge