U.S. v. Isom, 94-1372

• Decision Date: 05 February 1996
• Docket Number: No. 94-1372,94-1372
• Citation: 85 F.3d 831
• Parties: UNITED STATES, Appellee, v. Todd P. ISOM, Defendant--Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 831

85 F.3d 831

UNITED STATES, Appellee, v. Todd P. ISOM, Defendant--Appellant.

No. 94-1372.

United States Court of Appeals, First Circuit.

Heard Feb. 5, 1996.

Decided June 7, 1996.

Paul J. Klehm by Appointment of the Court, Boston, MA, for appellant.

Margaret E. Curran, Assistant United States Attorney, with whom Sheldon Whitehouse, United States Attorney, and Lawrence D. Gaynor, Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA, Chief Judge, ALDRICH, Senior Circuit Judge, and SELYA, Circuit Judge.

TORRUELLA, Chief Judge.

Defendant-Appellant Todd Isom ("Isom") appeals the district court's denial of his request to withdraw his plea of guilty. For the reasons stated herein, we affirm.

BACKGROUND

In November 1992, Isom, along with co-defendant Anthony McKinney ("McKinney"), was indicted on two counts. Count I charged the two men with conspiracy to distribute and to possess with intent to distribute five grams or more of cocaine base. See 21 U.S.C. § 846. Count II charged them with possession with intent to distribute five grams or more of cocaine base. See 18 U.S.C. § 2; 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B). The testimony at the probable cause and change of plea hearings indicates that the circumstances of arrest were as follows. On October 26, 1993, a confidential informant, accompanied by several Drug Enforcement Administration Task Force Agents, taped two telephone conversations At his arraignment, Isom pled not guilty. On January 14, 1994, at his change of plea hearing, the district court accepted Isom's ¹ change of plea to guilty on both counts, pursuant to a plea agreement, which provided, inter alia, that Isom would plea guilty and the government would recommend a sentence at the low end of the sentencing guideline range or of five years, whichever was greater.

                with McKinney.   McKinney agreed to meet the informant in Providence and sell him two ounces of crack cocaine.   The rendezvous took place as planned.   McKinney joined the informant and an agent in an undercover vehicle.   When the agent asked to see the drugs before allowing McKinney to count the money, McKinney said that "his guy" was coming with the "stuff" and directed the agent to a nearby parking lot.   McKinney then got out of the car and flagged Isom, who took a clear plastic bag out of his pants and gave it to McKinney.   After McKinney showed the agent some of the contents of the bag, the agent gave the arrest signal.   Both co-defendants fled, and were subsequently apprehended.   After receiving their Miranda warnings, both defendants made statements admitting possession of the crack cocaine
                

At the March 18, 1994, sentencing hearing, however, defense counsel indicated to the court that Isom had informed him that he did not understand the change of plea, the attendant colloquy, or even the plea agreement. Isom then addressed the court and made a pro se motion to withdraw his plea. Isom began his motion by stating that he did not want to withdraw his plea:

MR. ISOM: Good morning. I just want to start off, your Honor, by saying I'm not trying to change the plea that I entered the day that I said that I was guilty of taking a bag from my co-defendant. Also I want to make a statement clearly that I also received it from my co-defendant to bring it down there, okay.

Immediately following these statements, however, Isom presented his reasons to withdraw his plea: his lack of understanding of the plea agreement and ineffective assistance of counsel.

I feel like this, I came in here to this courtroom January 14th to plead under that, but I did not understand the plea agreement, and did not see the plea agreement until that day, until that morning, five minutes before I entered the courtroom. My lawyer states that he went over it with me. I don't have copies of nothing, your Honor, anything, not even discovery package, nothing. I don't have nothing. He claims he came, he discussed this. He claims why I didn't want copies of them. I don't understand that, your Honor. I feel like this, if he was--if I was supposed to have copies of them, I should have had copies of them. I just feel--I put in a motion to withdraw the plea.

Isom concluded by pleading his innocence.

I just taking--taking into consideration and ask you, to beg you, to beg the Court, that you take into consideration and look at the motion, and I'll go with your decision, whatever you decide to grant, whatever you decide your go under, but I really feel as I should have a chance to prove my innocence in this case here. I'm freely pleading out to something I didn't even have nothing to do with. Just because I brung the bag down to him, with the knowledge of not knowing what was in it, doesn't say that I was involved with a drug deal. I'm not a drug dealer, and I feel I just go from my heart that I should just let you look over the motion. Thank you.

(Sentencing Hearing, at 3-4). The court refused Isom's motion:

THE COURT: Well, it comes too late, to begin with. I took your plea here in open court, and I asked you all the questions, and you made all the right answers--

MR. ISOM: Yup.

THE COURT: (Continued)--to plead in this matter.

MR. ISOM: Yes.

THE COURT: And you told me you understood the plea agreement.

MR. ISOM: Uh-hum.

THE COURT: And what the Government's recommendation was going to be. So I'm not going to allow you to pull out at this point.

MR. ISOM: Okay. No problem.

(Sentencing Hearing, at 4-5). Isom was sentenced to sixty months in prison, to be followed by four years of supervised release, and a $100 assessment.

Ten days following the sentencing hearing, a written motion to withdraw plea was filed. Isom's signature on the motion, which was apparently prepared by a paralegal clerk at a detention center, was notarized on March 15, prior to the sentencing hearing. The written motion stated, inter alia, that the plea should be withdrawn as it was entered without the proper advice of counsel, and that Isom did not understand the nature of the charge, the consequences of the plea, or his rights in connection with the plea. In support of these contentions, the motion maintained that Isom was a functional illiterate, that he was innocent, and that the government would suffer no prejudice from withdrawal of Isom's guilty plea. The reason presented for withdrawal was ineffective assistance of counsel. The court denied the motion, on the grounds that it was untimely and lacked substance. This appeal ensued.

DISCUSSION

The sole issue before us is whether the district court erred in denying Isom's oral and written motions to withdraw his plea of guilty without an evidentiary hearing. After establishing our standard of review, we set out the legal framework and weigh the merits of Isom's appeal. For the reasons discussed below, we affirm the district court.

A. Standard of Review

The timing of a motion determines our standard of review: we apply an abuse of discretion standard to pre-sentencing motions, see United States v. Gray, 63 F.3d 57, 60 (1st Cir.1995), and a miscarriage of justice standard to post-sentencing motions, see United States v. Ruiz-del Valle, 8 F.3d 98, 103 (1st Cir.1993). Isom made two motions, the pre-sentencing oral motion and the post-sentencing written motion. However, as the written motion was notarized before sentencing occurred, and Isom referred to it during his oral motion before the sentencing court, the Government does not contend that the more rigorous miscarriage of justice standard should apply to the written motion. We here apply the abuse of discretion standard to both motions without further comment, in part because we find that even under the more lenient pre-sentencing standard, Isom's appeal must fail. See generally United States v. Parrilla-Tirado, 22 F.3d 368, 371 (1st Cir.1994) (noting that abuse of discretion standard is applied out of deference to the trial judge's special insight into the dynamics of a case).

B. The Legal Framework

It is by now well established that a defendant does not have an absolute right to withdraw a guilty plea. See Gray, 63 F.3d at 59; United States v. Austin, 948 F.2d 783, 786 (1st Cir.1991); see also United States v. Kobrosky, 711 F.2d 449, 454 (1st Cir.1983) (setting out logic behind premise). Rather, the plea may be withdrawn "only upon a showing of 'fair and just reason' for the request." United States v. Cotal-Crespo, 47 F.3d 1, 3 (1st Cir.), cert. denied, --- U.S. ----, 116 S.Ct. 94, 133 L.Ed.2d 49 (1995); see Fed.R.Crim.P. 32(e); Austin, 948 F.2d at 786. The defendant carries the burden of persuading the court that he has shown such a fair and just reason. Parrilla-Tirado, 22 F.3d at 371. A court must consider several factors in weighing whether a defendant meets this burden,

the most significant of which is whether the plea was knowing, voluntary and intelligent within the meaning of [Federal Rule of Criminal Procedure] 11. The other factors include: 1) the force and plausibility of the proffered reason; 2) the timing of the request; 3) whether the defendant has asserted his legal innocence; and 4) whether the parties had reached a plea agreement.

Cotal-Crespo, 47 F.3d at 3-4 (citation omitted); see also Gray, 63 F.3d at 60; Parrilla-Tirado, 22 F.3d at 371 (omitting fourth factor). There is "a final barrier that must be

surmounted: even if a defendant appears at first blush to meet the strictures of this four-part test, the nisi prius court still must evaluate the proposed plea withdrawal in relation to any demonstrable prejudice that will accrue to the government if the defendant is permitted to alter his stance." Id.; see Kobrosky, 711 F.2d at 455.

C. Analysis

In essence, Isom claims that his assertions of ineffective assistance of counsel, a lack of understanding of the plea agreement, and his professed innocence constitute a fair and just reason sufficient that the district court erred in denying his motion to withdraw his change of...