Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-26-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3237




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Recommended Citation
"USA v. Barnhart" (2005). 2005 Decisions. Paper 344.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/344


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                                            NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                  No. 04-3237


                        UNITED STATES OF AMERICA,

                                       v.

                          RACHELE D. BARNHART,

                                            Appellant


                 On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
                        (D.C. Criminal No. 00-cr-00018)
                       District Judge: Hon. Malcolm Muir


                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                October 18, 2005

 BEFORE: SCIRICA, Chief Judge, VAN ANTWERPEN and COWEN, Circuit Judges

                            (Filed: October 26, 2005)


                                   OPINION


COWEN, Circuit Judge.
       Appellant Rachele D. Barnhart appeals the judgment of conviction and sentence

entered in the District Court on July 21, 2004, claiming that her trial counsel rendered

ineffective assistance. The District Court had subject matter jurisdiction under 18 U.S.C.

§ 3231. We have subject matter jurisdiction pursuant to 28 U.S.C. § 1291, and 18 U.S.C.

§ 3742(a). We will dismiss the appeal.

       The July 21, 2004 judgment found Appellant in violation of certain conditions of

supervised release and imposed a term of imprisonment of five months. Before issuing

this judgment, the District Court held several hearings, including a presentence hearing on

June 29, 2004. Illness precluded Appellant from attending the June 29, 2004 presentence

hearing, and counsel represented the following regarding his prior discussion with

Appellant and her absence from the hearing to the District Court:

       Mr. Rocktashel [Assistant United States Attorney] and I have had some
       discussion about what to do about this. And I would ask under the
       circumstances that the Court permit the testimony that the government has
       scheduled for today to go forward waiving the presence of my client. I can
       represent to the Court that I have discussed the case with her in detail, and I
       believe that I am prepared to cross examine the witnesses who have come
       here today from Harrisburg.

(App. at 138.) After receiving testimony from the witnesses present, the District Court

adjourned the hearing for Appellant to testify after granting her an opportunity to review a

transcript of the proceedings. The District Court accordingly heard Appellant’s testimony

on July 16, 2004, before entering its judgment. On appeal, Appellant accuses her counsel




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of waiving her presence without obtaining her authorization in contravention of the Sixth

Amendment.

       This Court does not entertain ineffective assistance of counsel claims on direct

appeal unless the record is “sufficient to allow determination of ineffective assistance”

such that an evidentiary hearing for additional factual development is not necessary.

United States v. Headley, 

, 1083 (3d Cir. 1991). The record in this case is

not sufficiently developed to allow meaningful direct review of Appellant’s claim.

       As shown by the portion of the record quoted above, the record does not reflect

facts necessary to resolution of Appellant’s claim. Most significantly, it does not reveal

whether Appellant agreed that counsel should proceed with the June 29, 2004 presentence

hearing in her absence, or even if this issue was discussed. It is clear that an evidentiary

hearing is needed for further factual development before trial counsel’s overall

effectiveness can be satisfactorily ascertained. In this case, a collateral proceeding is the

most appropriate means for resolving Appellant’s contentions.

       For the foregoing reasons, the appeal will be dismissed.




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