Shanks v. Wolfenbarger
| Decision Date | 14 September 2005 |
| Docket Number | No. Civ. 04-CV-40313-FL.,Civ. 04-CV-40313-FL. |
| Parties | Willie SHANKS, Petitioner, v. Hugh WOLFENBARGER, Respondent, |
| Court | U.S. District Court — Eastern District of Michigan |
Willie Shanks, Muskegon, MI, pro se.
Raina I. Korbakis, Brenda E. Turner, Michigan Department of Attorney General, Lansing, MI, for Respondent.
Willie Shanks, ("petitioner"), presently confined at the Muskegon Correctional Facility in Muskegon, Michigan, seeks the issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his pro se application, petitioner challenges his convictions for first-degree home invasion, M.C.L.A. 750.110a(2); M.S.A. 28.305(a)(2), assault with intent to do great bodily harm less than murder, M.C.L.A. 750.84; M.S.A. 28.279; assault with intent to rob while armed, M.C.L.A. 750.89; M.S.A. 28.284, possession of a firearm in the commission of a felony [felony-firearm], M.C.L.A. 750.227b; M.S.A. 28.424(2); and being a second felony habitual offender, M.C.L.A. 769.10; M.S.A. 28.1082. For the reasons stated below, petitioner's application for writ of habeas corpus is denied.
Petitioner was convicted of the above offenses following his plea of no contest in the Muskegon County Circuit Court.
Petitioner had been scheduled to go to trial on this case and another unrelated criminal case involving a resisting and obstructing police officer charge on January 8, 2002. Petitioner had retained an attorney, Ronald Pannucci, to represent him on the prosecution involving the home invasion, assault with intent to do great bodily harm, assault with intent to rob while armed, and felony-firearm charges. Prior to trial on these charges, Mr. Pannucci informed the trial court that he had only been retained by petitioner to obtain a favorable plea agreement, but had not been retained to represent petitioner at trial. Pannuccci informed the trial court that he was not prepared for trial and moved for an adjournment of the trial and to withdraw as counsel based on these facts. Petitioner informed the trial court that it was his understanding that Pannucci would be his attorney "if we go to trial or whatever" and indicated he knew nothing about Pannucci representing him solely to obtain a plea agreement. In response to petitioner's remarks, Pannucci indicated that there was now a conflict between himself and petitioner, which also supported allowing counsel to withdraw.
The prosecutor informed the trial court that he was not ready to proceed to trial on this case because he believed that a plea bargain offer which had been made would be communicated to petitioner and if the plea was not accepted, Mr. Pannucci would move for an adjournment of trial. The prosecutor indicated that two of his witnesses had to be flown in from Texas and given defense counsel's statements during plea negotiations, the prosecutor did not want to fly these witnesses to Michigan at government expense if the trial was going to be adjourned.
The trial court granted the motion to adjourn the trial, in light of the fact that neither side was prepared for trial. The trial court denied defense counsel's motion to withdraw, noting that the court rules did not allow Mr. Pannucci to make the "boutique kind of appearance" that defense counsel had described. The trial court indicated that petitioner's claim that Michigan's 180 day rule had been violated by him not being brought to trial within 180 days of his arrest had been resolved by the motion to adjourn. Petitioner's trial counsel, Mr. Pannucci, then attempted to withdraw as counsel based upon comments made at the hearing, but the trial court indicated that any motion to withdraw would have to be made in writing.
The trial court recessed for thirty minutes and reconvened thirty minutes later to handle petitioner's other criminal case involving the resisting and obstructing a police officer charge. Petitioner was represented by appointed counsel, Carl S. Krueger, in this second case, which was scheduled for a bench trial. Mr. Krueger informed the trial court that petitioner had rejected plea offers which had been made to him and that the prosecutor was ready for trial. Mr. Krueger also advised the trial court that petitioner had informed Krueger that he wanted his retained attorney, Mr. Pannucci, to represent him on this second prosecution as well, even though petitioner had not previously informed Krueger that Mr. Pannucci would be his attorney on this case. However, Krueger noted that Pannucci had represented petitioner at the preliminary examination in this matter in the district court. The trial court engaged in lengthy discussions with the prosecutor and Mr. Krueger about Pannucci's prior involvement in this second prosecution. The trial court's secretary informed the trial court on the record that Mr. Pannucci had some previous involvement in district court in this case "either erroneously or out of kindness."
While these discussions were taking place, Mr. Pannucci walked back into the courtroom. The trial court informed petitioner that if he was dissatisfied with how Pannucci had treated him, he might have remedies with the Attorney Grievance Commission or the Michigan State Bar. Nonetheless, the trial court indicated that it was going to proceed to trial on "248", the resisting and obstructing police officer case. This case was recessed for twenty five minutes.
Following a recess, trial began on the resisting and obstructing case. Mr. Pannucci filed an appearance on behalf of petitioner in this matter. Petitioner was sworn in to provide testimony. The prosecutor then informed the trial court that the parties had worked out a plea agreement in both cases. Petitioner stipulated that Mr. Krueger would withdraw as counsel in the resisting and obstructing police officer case and Mr. Pannucci would represent him in this matter. On the record, Mr. Pannucci asked petitioner about their "little disagreement on some things in front of the Court." Pannucci then asked petitioner if he wanted Pannucci to represent him on both criminal cases. Petitioner stated affirmatively that he did. In response to a second question from Pannucci, petitioner indicated that he had no questions. Pannucci informed the trial court that petitioner had an opportunity to speak with his mother and other family members regarding his decision to plead. Petitioner acknowledged that Pannucci's statement was accurate.
The prosecutor then placed the terms of the plea agreement on the record. Petitioner would plead no contest to charges of first-degree home invasion, assault with intent to do great bodily harm less than murder, assault with intent to rob while armed, felony-firearm, and being a second-felony habitual offender in the first case, in exchange for which the prosecutor agreed to dismiss the supplemental information charging petitioner with being a third felony habitual offender. In exchange for his no contest plea to these charges, the trial court indicated that it would agree, pursuant to People v. Cobbs, 443 Mich. 276, 505 N.W.2d 208 (1993), that the minimum sentence in this case would not exceed 180 months or fifteen years. In exchange for petitioner's plea of guilty to the resisting and opposing a police officer charge, the prosecutor would dismiss a charge of driving on a suspended license.
The trial court explained at length the nature of the charges that petitioner would be pleading guilty to, the maximum sentences, and with respect to the felony-firearm charge, the fact that this charge called for a mandatory two year prison sentence which would have to be served consecutively to any other sentences. The trial court further explained that the sentence agreement that it had agreed to involved only the minimum sentence and not the maximum sentence. In response to questions from petitioner, the trial court explained to petitioner that while it was theoretically possible for petitioner to be sentenced to probation on the charges other than the felony-firearm charge, the Michigan sentencing guidelines would probably call for a sentence higher than that and further explained that the trial court could depart below the sentencing guidelines only for substantial and compelling reasons. The trial court asked Mr. Pannucci if he saw any substantial and compelling reasons for a downward departure. Pannucci replied "[P]robably not." Pannucci informed the trial court that he had calculated the minimum range of the guidelines at 10 and a half years and indicated that he explained to petitioner and his family that absent substantial and compelling reasons, the court would be required to impose a sentence of ten and a half years at a minimum. The trial court agreed with Pannucci's statement and again explained to petitioner that absent substantial and compelling reasons, any minimum sentence in this case would have to fall within the sentencing guidelines range. The court further advised petitioner that the trial court would determine his sentence after studying a pre-sentence report that would be prepared in this case.
In response to questions from the court, petitioner several times denied that any promises had been made to him, other than the terms of the plea agreement which had been placed on the record. Petitioner denied that anyone had threatened him to get him to plead no contest and that this was his own choice. The trial court then advised petitioner of the rights that he would relinquish by pleading no contest. As part of this advice, the trial court informed petitioner that if the trial court accepted petitioner's plea, petitioner would be giving up any claim that the plea was a result of any promises or threats which had not been disclosed on the record. Petitioner pleaded guilty to resisting and obstructing a police officer. Petitioner then...
To continue reading
Request your trial
-
Peterson v. Klee, Case No. 2:12-cv-11109
...the plea colloquy, in which he denied that any . . . threats had been used to get him to enter his plea." Shanks v. Wolfenbarger, 387 F. Supp. 2d 740, 750-51 (E.D. Mich. 2005); United States v. Ford, 15 F. App'x. 303, 309 (6th Cir. 2001). While not explicitly raised in his petition, the Cou......
-
Mitchell v. Vasbinder
...state-created interest in having the Michigan Sentencing Guidelines applied rigidly in determining his sentence. Shanks v. Wolfenbarger, 387 F.Supp.2d 740, 752 (E.D.Mich.2005). Petitioner's claim that the state trial court improperly departed above the sentencing guidelines range would also......
-
Hall v. Rivard
...in determining his sentence." See Mitchell v. Vasbinder, 644 F. Supp. 2d 846, 867 (E.D. Mich. 2009)(citing Shanks v. Wolfenbarger, 387 F. Supp. 2d 740, 752 (E.D. Mich. 2005)). "[I]n short, petitioner had no federal constitutional right to be sentenced within Michigan's guideline minimum sen......
-
Sandoval v. Woods
...was intentionally caused by the trial court or the prosecution. Norris v. v. Schotten, 146 F. 3d at 327-28; Shanks v. Wolfenbarger, 387 F. Supp. 2d 740, 748 (E.D. Mich. 2005). There is nothing in the record to indicate a "willful attempt" by the prosecution to delay the trial, Burns v. Lafl......