U.S. v. Carr, 95-8009

• Decision Date: 25 March 1996
• Docket Number: No. 95-8009,95-8009
• Citation: 80 F.3d 413
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wesley Alan CARR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 413

80 F.3d 413

UNITED STATES of America, Plaintiff-Appellee, v. Wesley Alan CARR, Defendant-Appellant.

No. 95-8009.

United States Court of Appeals Tenth Circuit.

March 25, 1996.

Appeal from the United States District Court for the District of Wyoming (D.C. No. 94-CR-46).

Donald L. Fuller, Krampner & Fuller, Casper, Wyoming, for Defendant-Appellant.

Patrick J. Crank, Assistant United States Attorney (David D. Freudenthal, United States Attorney; David A. Kubichek, Assistant United States Attorney, with him on the brief), Casper, Wyoming, for Plaintiff-Appellee.

Before SEYMOUR, Chief Judge, BARRETT, Circuit Judge, and KERN, District Judge. ^*

KERN, District Judge.

Appellant Wesley Alan Carr appeals the District Court's denial of his motion to withdraw his plea of guilty. Appellant contends that his plea was not voluntary, that he did not receive effective assistance of counsel, and that the District Court's denial of his withdrawal motion was improper.

I. FACTS

On March 24, 1994, a grand jury returned an indictment against Appellant Wesley Alan Carr and four codefendants ¹ for their alleged participation in a conspiracy to distribute marijuana, methamphetamine, and cocaine in Colorado and Wyoming. Appellant was charged in five counts for his alleged role in heading the criminal organization that distributed the drugs. Two of the codefendants, Sivertson and Iverson, pleaded guilty and were sentenced in August 1994. To the three remaining defendants, including Appellant, the government proposed a "package deal" plea bargain: in exchange for all three defendants pleading guilty to the conspiracy charged in Count One of the indictment, ² Contreras would receive a ten-year sentence, Cunningham would receive a five-year sentence, and Appellant would receive a twenty-year sentence. Both Contreras and Cunningham immediately pleaded guilty.

Appellant filed a signed plea agreement with the court in which he agreed to plead guilty to Count I of the indictment. At Appellant's change of plea hearing on June 13, 1994, District Judge Brimmer scrupulously administered a Rule 11 protocol, Fed.R.Crim.P., which included the following exchanges:

THE COURT: Have you had a full and ample opportunity to discuss these matters with Mr. O'Donnell as your court-appointed defense counsel?

THE DEFENDANT [Appellant]: Yes, I have.

THE COURT: Are you fully satisfied with the services of Mr. O'Donnell?

THE DEFENDANT: Yes.

Appellant App. Vol. I. at 159-60.

THE COURT: All right. Now, tell me this: Is this plea of guilty a voluntary plea?

THE DEFENDANT: Yes, it is.

THE COURT: Is anybody forcing you to plead guilty?

THE DEFENDANT: No.

THE COURT: Is Mr. O'Donnell forcing you to plead guilty?

THE DEFENDANT: No, he's not.

THE COURT: Is it your own idea?

THE DEFENDANT: Yes.

THE COURT: Is it a free act on your part?

THE DEFENDANT: Yes, it is.

THE COURT: Are any circumstances of any kind, economic or otherwise, forcing your guilty plea?

THE DEFENDANT: No, they're not, Your Honor.

Appellant App. Vol. I at 161. Despite Appellant's apparent desire to enter a guilty plea at the June 13th hearing, Judge Brimmer rejected Appellant's plea because of Appellant's reluctance to admit to stipulated factual bases for the plea.

However, upon motion by Appellant to reopen the proceedings, the court gave Appellant another chance the following day. This time, Appellant was more forthcoming in admitting his involvement in a conspiracy to deliver controlled substances, and he executed a successful guilty plea to Count One of the indictment. At this second hearing, Judge Brimmer again inquired into the voluntariness of the plea:

THE COURT: ... You're still guilty today?

THE DEFENDANT: Yes, sir.

THE COURT: And it is voluntary?

THE DEFENDANT: Yes, sir.

THE COURT: And nobody has forced you in the meantime to plead guilty?

THE DEFENDANT: No, Your Honor.

THE COURT: And you're still pleading guilty because you are?

THE DEFENDANT: Yes, sir.

THE COURT: All right. Court finds that the plea of guilty is a voluntary plea and that there is a factual basis for the plea of guilty.

Appellant App. Vol. I at 175.

Three months after he entered his guilty plea, Appellant filed a motion to withdraw his plea, alleging that it was entered as a result of coercion and duress. The alleged sources of this coercion and duress were Appellant's own counsel as well as codefendants and their counsel. The court denied the motion. Appellant later filed another motion to withdraw his plea, alleging, in addition to the previous claims, ineffective assistance of counsel during his first attempt to withdraw his plea. The court denied this motion as well.

II. DISCUSSION

Appellant now appeals the District Court's denial of his motion to withdraw his guilty plea. Appellant contends that his plea was not voluntary, that he did not receive effective assistance of counsel, ³ and that the District Court's denial of his withdrawal motion was improper.

A. Voluntariness of Guilty Plea

We review the voluntariness of Appellant's guilty plea de novo. United States v. Libretti, 38 F.3d 523, 529 (10th Cir.1994), aff'd, --- U.S. ----, 116 S.Ct. 356, 133 L.Ed.2d 271 (1995). "The longstanding test for determining the validity of a guilty plea is 'whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.' " Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985) (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970)). A guilty plea entered upon the advice of counsel is invalid if the plea was coerced, Osborn v. Shillinger, 997 F.2d 1324, 1327 (10th Cir.1993), or if the advice of defendant's counsel was not within the range of competence demanded of attorneys in criminal cases, Hill v. Lockhart, 474 U.S. at 56, 106 S.Ct. at 369; McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970).

Appellant advances several reasons why his guilty plea was not voluntary: (1) the structure and application of the plea bargain was coercive; (2) Appellant's attorney, codefendants and their attorneys coerced Appellant into agreeing to the plea bargain; and (3) Appellant's attorney rendered ineffective assistance in the context of the plea process.

1. Structure and Application of Plea Bargain

Appellant asserts that the "package deal" plea bargain offered by the government was inherently coercive. We have recognized "that threats to prosecute or promises of leniency to third persons to induce guilty pleas can pose a danger of coercion" and therefore require special care "to insure that the plea was in fact entered voluntarily and was not the product of coercion." Mosier v. Murphy, 790 F.2d 62, 66 (10th Cir.), cert. denied, 479 U.S. 988, 107 S.Ct. 582, 93 L.Ed.2d 584 (1986). Moreover, we have noted that "the inclusion of such third persons can increase the leverage possessed by prosecutors and therefore imposes upon them a high standard of good faith." Id. (citing United States v. Nuckols, 606 F.2d 566, 568 (5th Cir.1979)). Nevertheless, we have insisted that an accused's choice be respected, and if he " 'elects to sacrifice himself for such motives, that is his choice.' " Mosier, 790 F.2d at 66 (citing Kent v. United States, 272 F.2d 795, 798 (1st Cir.1959)).

The package deal in the instant case survives this standard of "special care." In contrast to the instant case, the previously cited line of cases involved third persons who had particularly close bonds to the accused: either related by marriage or affianced to the accused. ⁴ The record in the instant case does not indicate any comparable bonds between Appellant and the codefendants offered the package deal. Rather, it appears that Appellant's ultimate acceptance of the plea bargain was not an act of "sacrifice," but rather an attempt to avoid a harsher sentence. Further, there is no claim or indication that the prosecutors in the instant case did not act in good faith in securing Appellant's plea bargain. Therefore, there is nothing to suggest that the structure or application of the package deal was improperly coercive.

2. Alleged Coercion by Attorneys and Codefendants

Appellant alleges that despite his explicit desire not to enter a guilty plea, his attorney, Michael O'Donnell, together with codefendants and their attorneys, pressured Appellant into accepting the package deal. Appellant claims that he was "hounded, browbeaten and yelled at" by O'Donnell to accept the plea; that O'Donnell collaborated with codefendants' attorneys to force Appellant to accept the plea; and that when Appellant initially refused to acquiesce, O'Donnell called him "stupid" and "a fucking idiot." While these pressures might have been palpable to Appellant, they do not vitiate the voluntariness of his plea; it was still his choice to make. Indeed, the thorough exchange between the court and Appellant during administration of the Rule 11 protocol, quoted supra, clearly demonstrates that Appellant entered his plea willingly and voluntarily at the time he made it.

3. Ineffective Assistance of Counsel

In support of his claim that his plea was not voluntary, Appellant also contends that his counsel rendered ineffective assistance. This claim presents a mixed question of law and fact that we review de novo; nevertheless, we accept the district court's factual findings unless clearly erroneous. United States v. Boone, 62 F.3d 323, 326 (10th Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 576, 133 L.Ed.2d 499 (1995).

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court established a two-pronged test for evaluating claims of ineffective assistance of counsel. In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the Court held that the Strickland test also applies to challenges to guilty pleas based on ineffective assistance of counsel, as in the...