U.S.A v. Johns, 08-14856
| Decision Date | 06 August 2010 |
| Docket Number | No. 07-00232-CR-WS-M,No. 08-14856,08-14856,07-00232-CR-WS-M |
| Parties | UNITED STATES OF AMERICA,Plaintiff-Appellee, v. JOHNNIE DUANE JOHNS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Appeal from the United States District Court for the Southern District of Alabama
* Honorable Thomas M. Reavley, United States Circuit Judge for the Fifth Circuit, sitting by designation.
Johnnie Duane Johns pleaded guilty to one count of possessing pseudoephedrine with intent to manufacture methamphetamine ("meth"), in violation of 21 U.S.C. § 841(c)(1). He contends that: (1) the district court clearly erred by finding that he was competent to proceed to sentencing instead of holding a formal competency hearing; and (2) he received ineffective assistance of counsel during the plea and sentencing hearings. We affirm as to the competency ruling and dismiss the ineffective-assistance claim because it is not yet ripe for appellate review.
In July 2007, a federal grand jury indicted Johns on four counts of drugrelated offenses. Johns and three other individuals were charged with conspiracy to possess with intent to distribute in excess of 50 grams of meth, in violation of 21 U.S.C. § 846 (Count 1). Johns was also charged with two counts of possession of pseudoephedrine with intent to manufacture meth, in violation of 21 U.S.C. § 841(c)(1) (Counts 2 and 3), as well as one substantive count of possession with intent to distribute (Count 4).
Pursuant to a written agreement, Johns pleaded guilty to Count 2 in exchange for the government's agreement to drop the other charges, which it did. Johns stipulated that a factual resume attached to the plea agreement was accurateand that the government could prove those facts at trial beyond a reasonable doubt. Under the terms of the plea agreement, Johns waived his right to challenge his sentence in any appeal or collateral attack, with the following exceptions: (1) a sentence in excess of the statutory maximum; (2) an upward departure from the guideline range; and (3) a claim of ineffective assistance of counsel.
In the plea agreement, which was signed on September 12, 2007, Johns stated that he was "not under the influence of alcohol, drugs, or narcotics," and that he was "in full possession of [his] senses and mentally competent to understand this Plea Agreement and the guilty plea hearing which will follow." Johns said he was "completely satisfied" with his legal counsel, who had discussed with him the facts of the case, the legal elements of the charges, the government's likely evidence, and possible defenses. Johns also stated that he understood and voluntarily agreed to the plea agreement, and his counsel attested that Johns had made an informed and voluntary decision to plead guilty.
During the plea colloquy on September 14, 2007, defense counsel informed the court that Johns was "fully competent to enter a valid plea." Johns confirmed that he had never been treated for mental illness or drug addiction and that he was not under the influence of drugs or alcohol at the time of the plea hearing. In response to a number of questions by the district court, Johns acknowledged thathe and his attorney had "fully discussed" all of the facts surrounding the charges against him and that they had reviewed the indictment and the terms and conditions of the plea agreement. Johns also acknowledged that he understood: the nature and elements of the charges, the terms and conditions of the plea agreement, the potential penalties he was facing (including the fact that the sentence imposed might differ from any estimate his attorney had given him), the rights he would lose if convicted, and the rights that his guilty plea was waiving. Johns admitted that he had committed the offense conduct outlined in the factual resume of his plea agreement. He then pleaded guilty to Count 2 of the indictment, and his attorney confirmed that he knew of no reason the court should not accept Johns's guilty plea.
Based on the plea colloquy, the district court found that Johns was "fully competent and capable of entering an informed plea, that [he was] aware of the nature of the charge and the consequences of [his] plea, and that [his] plea of guilty [was] a knowing and voluntary plea supported by an independent basis in fact." The court accepted Johns's guilty plea and adjudicated him guilty.
The Presentence Report assigned Johns a base offense level of 34 because of the drug quantity and added a 2-level enhancement, pursuant to U.S.S.G. § 2D1.1(b)(1), because "a dangerous weapon was possessed." With a total offenselevel of 36 and a criminal history category of I, Johns received an advisory guidelines range of 188 to 235 months imprisonment. The PSR also reported that Johns, while being interviewed by a probation officer, said that he had "never been evaluated or treated for any mental or emotional problems." The probation officer noted that Johns "communicated without difficulty and appeared to understand the seriousness of the charges." During the interview, Johns also said:
At the first sentencing hearing, on April 11, 2008, defense counsel moved for a continuance because he wanted time to investigate "whether this stuff he's been using for four-and-a-half years, mostly crystal meth, has damaged his brain." He argued that Johns's diminished capacity had interfered with their attorney-client relationship and that Johns was "not in touch with reality" and had "all the symptoms of a damaged brain." The government opposed the motion, arguing that Johns's ability to run a meth-cooking operation and broker pills demonstrated that he had the mental acumen necessary to stand trial. The court noted that "everybody who uses meth is in similar circumstances," but granted thecontinuance and invited defense counsel to file a written motion for a competency hearing pursuant to 18 U.S.C. § 4241.
On April 21, 2008, defense counsel filed a motion to transport Johns for psychological testing in order to determine his mental competency, and the court granted the motion. Dr. Daniel Koch, a clinical psychologist, conducted an eighthour evaluation and concluded, among other things, that Johns had Attention Deficit Disorder, suffered from bipolar disorder, and was mildly impaired. The report, however, did not make an express determination of Johns's competency to stand trial. As Dr. Koch would later explain, he conducted a mental health evaluation but not "a formal competency to stand trial assessment." Based on Dr. Koch's report, defense counsel drafted a motion to determine Johns's competency. That motion, which was filed the day before the sentencing hearing, asserted that Dr. Koch found that Johns had "a severe mental disease or defect," had an "organic brain impairment," and was "clearly impaired."
During the sentencing hearing on June 17, 2008, the court heard argument on the motion to determine Johns's competency. Defense counsel took the position that Johns "suffer[ed] from a severe mental disease or defect primarily as a result of his addiction to crystal meth and methamphetamine in any form." Johns's condition had worsened "since he entered his [guilty] plea," his counselasserted, because Johns "became addicted again" while he was released on bond. Johns was back in custody since his bond was revoked, but the jail allegedly was not medicating him. Counsel summarized Dr. Koch's report, noting that "some parts" of it indicate that Johns is "severely impaired and severely diseased as a result of this drug use." Counsel admitted, however, that the report "does not answer the question that we are dealing with right now." As defense counsel explained, it "doesn't say that he is mentally incompetent and doesn't say that he isn't."
Johns's father testified that his son (who was 35 at the time) did not have any mental problems in his teens and early 20s. Johns was a "fine young lad" who became an Eagle Scout. When he was in his mid-to late 20s, Johns finished second in his class at a technical college and had a steady job. In the four or five years before his arrest, however, Johns had become addicted to meth. Johns was "not like he used to be." He was "fidgety and won't pay attention to you." In order to carry on a conversation, "you have to go about it in pieces and ways, because he'll get off on some other things." Although Johns was "not well" and needed rehabilitation, he had not received any treatment since his arrest. According to his father, Johns had a brain impairment, could not take an active part in the proceedings, and did not "realize how much trouble he is in." Johns'sfather testified that imprisonment had worsened his son's condition and that Johns was not "competent and able to understand what's going on here and defend himself as best he can."
On cross-examination, Johns's father admitted that he was not a medical expert and therefore could not dispute Dr. Koch's finding that Johns's degree of impairment was mild. Johns's father was aware that Johns had apologized to his probation officer for his actions, but was unaware that his son also had a conversation with case agents in which he acknowledged the amount of time he was facing and asked how he could cut that time.1 John's father insisted that his son did not understand the consequences of the charges. He also said that he wanted Johns to pay for his crimes but not to serve a lengthy jail sentence.
Defense counsel requested a continuance so that Dr. Koch could testify. (Earlier in the hearing, defense counsel said that had he "appropriately prepared" he would have asked Dr. Koch to be present for the hearing.) The government objected, arguing that further delay was unnecessary...
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