835 F.2d 687 (7th Cir. 1987), 86-3025, United States v. Ellison

Docket Nº:86-3025.
Citation:835 F.2d 687
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Max Allen ELLISON, Defendant-Appellant.
Case Date:December 08, 1987
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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835 F.2d 687 (7th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,


Max Allen ELLISON, Defendant-Appellant.

No. 86-3025.

United States Court of Appeals, Seventh Circuit

December 8, 1987

Argued Sept. 14, 1987.

As Amended .

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Thomas Appleton, Springfield, Ill., for defendant-appellant.

David E. Risley, Asst. U.S. Atty., J. William Roberts, U.S. Atty., Springfield, Ill., for plaintiff-appellee.

Before FLAUM, EASTERBROOK and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Defendant-appellant, Max A. Ellison ("Ellison") appeals the district court's order denying his motion to withdraw his guilty plea pursuant to Fed.R.Crim.P. 32(d). 1 Based on the record of the plea proceeding, the district court found that Ellison's plea of guilty was knowingly and voluntarily made and that Ellison failed to present a "fair and just" reason for withdrawing his plea. We affirm.

In late 1984, Max Ellison was charged with kidnapping, receiving ransom money and interstate transportation of stolen property. Subsequently, in connection with the same incidents leading to these initial charges, Ellison was also indicted for six counts of interstate transportation of stolen property. Shortly thereafter, while incarcerated in the Sangamon County Jail in Springfield, Illinois, Ellison formulated and took steps to implement his "unscheduled release." As a result, an indictment for attempted escape was added to the other two.

Ellison, after some vacillation, finally agreed to plead guilty to one count of kidnapping and one count of carrying a firearm in connection with a federal crime of violence; one count of interstate transportation of stolen property; and the charged attempted escape. In return, the government dismissed the remaining charges; promised that no further charges arising from the same incidents would be filed; 2 and recommended that concurrent sentences be imposed whenever possible. The government did not, however, make any further sentencing recommendations,

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leaving the length and type of the sentence to the discretion of the court. The parties' agreement was memorialized in a plea agreement.

On March 19, 1985, Judge James T. Moody of the Northern District of Indiana, sitting by designation, conducted a plea proceeding. In order to establish that Ellison's plea was knowingly and voluntarily made, the court followed the procedures outlined in Federal Rule of Criminal Procedure 11. 3 Engaging in a colloquy with Ellison, Judge Moody carefully and thoroughly established the facts on which the government's case against Ellison was based; informed Ellison of his rights and the consequences of waiving those rights; established that Ellison understood his rights and the charges against him; established that Ellison had committed the crimes to which he was pleading; and confirmed that Ellison's capacity to understand the proceedings was in no way impaired.

On the basis of Ellison's answers to its questions, the court found that Ellison had knowingly and voluntarily entered a plea of guilty. The court then accepted Ellison's guilty plea. However, despite the fact that Ellison's plea agreement placed no limits on the length or type of sentence to be imposed, the court took the plea agreement under advisement. 4 Judge

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Moody stated he would make a decision to accept or reject the plea agreement at the time of sentencing. 5

Two days before his sentencing, Ellison filed a pro se motion to withdraw his guilty plea. A hearing on that motion was conducted by Judge Moody on May 20, 1985. The thrust of Ellison's motion was that his plea was the result of certain psychological pressures stemming from his living conditions and the absence of contact with his family or the outside world. Ellison also claimed he was innocent of the charges against him and had entered his plea only because his attorney suggested he cooperate with federal authorities.

At the hearing before Judge Moody, Ellison testified he believed that if he pled guilty, he would be moved from the local jail to the Metropolitan Correctional Center ("MCC"), a federal institution in Chicago, where he would be permitted to see his family. Although Ellison did not assert such a move was guaranteed, he did testify that attorney Michael Kopec, his attorney at the time of the plea, suggested such a move would be likely. Ellison also claimed he had been told he could back out of his plea for any reason at any time until the court accepted his plea agreement.

Under questioning by the court, Attorney Kopec denied advising Ellison to plead simply to avoid making trouble for Kopec with the government. He admitted however, that he told Ellison it was likely, though not guaranteed, that Ellison would be moved to the MCC.

Judge Moody denied Ellison's motion to withdraw his plea, finding that Ellison had not been coerced into pleading guilty. Based on Ellison's previous sworn answer to the court's inquiry whether he had been threatened or promised anything outside of the plea agreement, the court found Ellison knowingly and voluntarily entered his plea. Judge Moody then sentenced Ellison to a 65-year term of imprisonment.

Ellison appealed Judge Moody's order denying his motion to withdraw his plea, arguing he only entered his plea because he thought he had an absolute right to withdraw the plea up until the time the court actually accepted the plea agreement. Ellison also argued his plea was the result of his attorney's representations and not a product of his free will.

We previously rejected Ellison's argument that he had an absolute right to withdraw his plea until the court accepted the plea agreement, 6 but remanded the matter for another hearing on the issue of voluntariness, finding that the interests of Ellison and his attorney conflicted at the first hearing. United States v. Ellison, 798 F.2d 1102 (7th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 893, 93 L.Ed.2d 845 (1987).

On remand, Judge Richard Mills, of the Central District of Illinois, heard further evidence on Ellison's motion to withdraw his plea. At that hearing, Ellison reiterated that he had been told if he pled guilty he would be moved to the MCC in Chicago and would be allowed to contact his family. Ellison was also questioned

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about his attorney's advice with respect to the benefit of pleading guilty. Ellison testified:

He [Kopec] advised me it was--the agreement itself was a good plea agreement for me. He said it would get rid of Illinois, get them out of the picture, I'd be in contact with friends and family again, I'd be living a better condition wise and the same stuff.

Transcript of Proceeding on Motion to Withdraw Guilty Plea, 12-2-86, p. 21. Ellison also testified that he only entered his plea so that he could see his family and that he fully intended to withdraw his plea once he had been moved to the MCC. Ellison stated that he was of the belief that the only way to see his family and to improve his day-to-day living conditions was to enter a plea.

On cross-examination Ellison stated:

.. the whole reason for the plea itself was just to buy me some time to see my family again. According to Mr. Kopec, I could withdraw from the plea up until it was finally accepted by the judge.

Transcript, p. 28.

On cross-examination, Ellison admitted he had not been threatened or physically forced to enter the plea agreement; that he read, understood, and signed the agreement before his plea was taken; and that he understood the nature of the plea proceedings. Under questioning by the court, Ellison also reaffirmed all the answers he gave Judge Moody during the original plea proceeding.

At the hearing before Judge Mills, Attorney Kopec testified that Ellison waivered between proceeding with a jury trial and entering a guilty plea. This waivering continued until the time the plea proceeding commenced. In light of Ellison's indecisiveness and to protect himself in the event of later complications, Kopec wisely presented Ellison with a six page letter, committing to paper his advice to Ellison. The letter, which was read and signed by Ellison in Kopec's presence, begins by explaining the various charges against Ellison and the likelihood of success in defending against each charge. 7 With respect to the plea agreement which Ellison had already signed, the letter stated "I think the plea agreement is in your best interest" but also stated "... you can withdraw from this plea agreement at any time up to the point that you step into court and tell the judge that you wish to go ahead with it." Notably absent from this discussion of the plea agreement were any representations that Ellison would be moved to the MCC or allowed to see his family if he entered his plea. Kopec's letter did address Ellison's complaints about the conditions in the county jail, including complaints about detention, deadlock, and lack of outside contact. Kopec advised:

... You have brought most of these things on yourself ... I have to conclude that they [county jail authorities] have adequate reason to hold you in detention and under deadlock ... I also believe that they have adequate reason to deny you visitations by your relatives and deny you access to newspapers ... I want you to understand that my powers are extremely limited with regard to jail...

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