U.S. v. Michelsen

• Decision Date: 23 June 1998
• Docket Number: No. 97-3114,97-3114
• Citation: 141 F.3d 867
• Parties: UNITED STATES of America, Appellee, v. Harry Lee MICHELSEN, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 867

141 F.3d 867

UNITED STATES of America, Appellee, v. Harry Lee MICHELSEN, Appellant.

No. 97-3114.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 13, 1998.

Decided April 13, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied June

23, 1998. ^*

Mary Heise Buckley, Assistant Federal Public Defender, Omaha, NE, argued, for Appellant.

Daniel Alan Morris, Assistant U.S. Attorney, Omaha, NE, argued, for Appellee.

Before RICHARD S. ARNOLD, Chief Judge, BRIGHT and WOLLMAN, Circuit Judges.

WOLLMAN, Circuit Judge.

Harry Lee Michelsen appeals from an order by the district court ¹ dismissing the appeal from his sentence based upon Michelsen's waiver of appellate rights pursuant to a plea agreement. We affirm.

I.

Michelsen was charged with failure to pay past due child support in violation of the Child Support Recovery Act (CSRA), 18 U.S.C. § 228 (1992). He retained private counsel and consented to have his case heard by a United States Magistrate Judge. A plea agreement was soon reached. The agreement included the following provisions:

1. ACKNOWLEDGMENT AND WAIVER OF RIGHTS AND UNDERSTANDING OF MAXIMUM PENALTIES: The defendant agrees that he has been fully advised of his statutory and constitutional rights herein, and that he has been informed of the charges and allegations against him and the penalty therefor, and that he understands these rights, charges and penalties. The defendant further agrees that he understands that by entering a plea of guilty as set forth hereafter he will be waiving certain statutory and constitutional rights to which he is otherwise entitled.

2. PLEA AGREEMENT PROCEDURE--NO RIGHT TO WITHDRAW PLEA IF COURT REJECTS RECOMMENDATION: The United States and the defendant agree that this Plea Agreement is presented to the Court pursuant to Rule 11(e)(1)(B) of the Federal Rules of Criminal Procedure, which provides, among other things, that the government will make a recommendation or agree not to opposed [sic] the defendant's request for a particular sentence, but that SUCH RECOMMENDATIONS ARE NOT BINDING ON THE COURT and that the DEFENDANT MAY NOT WITHDRAW HIS PLEA OF GUILTY if the Court rejects such recommendations.

....

4. ... Further, the United States will recommend a period of incarceration of 6 months, that the period of incarceration shall be suspended and defendant placed on supervised probation for a period of 5 years during which period the defendant shall make any required child support arrearages payments as ordered by the Court. Failure to make the required payments may result in imposition of the court's sentence of incarceration....

....

6. WAIVER OF DEFENSE AND APPEAL RIGHTS: Defendant hereby waives any right to raise and/or appeal and/or file any post-conviction writs of habeas corpus or coram nobis concerning any and all motions, defenses, probable cause determinations, and objections which defendant has asserted or could assert to this prosecution and to the Court's entry of judgment against defendant and imposition of sentence under 18 U.S.C. § 3742 (sentence appeals).

Plea Agreement at 1-4 (emphasis in original). The agreement, dated February 28, 1997, was signed by both Michelsen and his attorney.

At a hearing commenced that same day, the magistrate judge ² accepted the plea agreement as negotiated. During the hearing, the following exchange occurred:

THE COURT: Um, I'm going to hand to your counsel three documents and you can just keep them there for the moment. First we have a petition to enter a plea of guilty of--which purports to contain your signature on that document. Is that your signature on the next to the last page of that document?

MR. MICHELSEN: Yes, Your Honor, it is.

THE COURT: And in filling out this petition, who filled out the petition? Is it you or your attorney's handwriting on the petition?

MR. MICHELSEN: My attorney filled it out for me.

THE COURT: And did he--did he fill it out in accordance to your instructions as to how you answered it?

MR. MICHELSEN: Yes, Your Honor.

THE COURT: And those are the answers that you gave?

MR. MICHELSEN: Yes, Your Honor.

THE COURT: Okay. Then we have a plea agreement which is four pages and it purports to have your signature on Page 4. Is that your signature on Page 4?

MR. MICHELSEN: Yes, Your Honor.

THE COURT: Okay. And then we have a factual basis statement which is three pages but on the second page it purports also to have your signature. Is that your signature on there?

MR. MICHELSEN: Yes, Your Honor.

THE COURT: Did anybody force or threaten or coerce you to sign any of these documents?

MR. MICHELSEN: No, Your Honor.

Transcript of Hearing on Arraignment at 3-4. And later:

THE COURT: Now, you're offering to plead pursuant to the plea agreement. We have the plea agreement which you've indicated your signature on there. [Addressing the Government], would you summarize the plea agreement for the Court?

[THE GOVERNMENT]: Yes, Your Honor. The plea agreement is a four-page document which the Defendant in this case and the United States agree to certain terms. Among them is that the Defendant will plead guilty to the charge in the one count Information. In exchange for that, the--the Government will make a recommendation to the Court regarding the sentence to be imposed in this case; although, the agreement indicates that that is a non-binding recommendation. The Government is recommending in this case that a term of imprisonment not be imposed and that the--rather that a period of incarceration of six months be imposed but that it be suspended and that the Defendant be placed on supervised probation for a period of five years during which time he would make any child support arrearages payments that are ordered by the Court....

THE COURT: Are there any other provisions in the plea agreement?

[THE GOVERNMENT]: There--there--there are others that are in the plea agreement, Your Honor, but I think those are the main points.

THE COURT: Is that your understanding, Mr. Michelsen, with regard to the plea agreement?

MR. MICHELSEN: Yes, Your Honor.

THE COURT: You understand that the Government is going to make a recommendation in this matter with regards to the sentence but that recommendation will not be binding upon the Court? Do you understand that?

MR. MICHELSEN: I understand that, Your Honor.

THE COURT: That I can reject that and impose--theoretically impose the maximum punishment that could be imposed, as I previously indicated to you?

MR. MICHELSEN: Ultimately it's your decision to make.

Transcript of Hearing on Arraignment at 9-11. No explicit reference was made during the hearing to the provision in the plea agreement by which Michelsen waived his right to appeal his sentence.

Thereafter, the magistrate judge granted a motion by Michelsen's counsel for permission to withdraw. Michelsen subsequently waived his right to counsel and proceeded pro se. At the sentencing hearing, the government made the following recommendation:

[THE GOVERNMENT]: Thank you. Your Honor, the Government does not believe that a period of incarceration is currently required for the Defendant. The--the desire of the Government would be for this individual to obtain employment that would result in his ability to earn income that could be then sent to the victims of this crime. The Government believes this is a crime to his victims who are--were expecting this money for many years. So the Government would ask that pursuant to the plea agreement that a term of imprisonment be imposed but in a--suspended during the course of a five-year period of probation.

Transcript of Sentencing Hearing at 10-11.

Ultimately, the court rejected the government's recommendation and sentenced Michelsen to imprisonment for six months, restitution in the amount of $89,420.64, and a special assessment of ten dollars. After imposing sentence, the court made the following statement:

THE COURT: Mr. Michelsen, you're advised that you may appeal this sentence within ten days after the filing of the judgment in this matter. That will probably happen within the next day or so. When that is filed you will have ten days to appeal that sentence to one of the judges of the United States District Court.

Transcript of Sentencing Hearing at 20. The government made no objection to this statement at the time. The written judgment contained the following provision:

Following the imposition of sentence, the court advised the defendant of his right to appeal pursuant to the provisions of Fed.R.Crim.P. 32 and the provisions of 18 U.S.C. § 3742(a) and that such Notice of Appeal must be filed with the clerk of this court within ten (10) days of this date.

United States v. Harry Lee Michelsen, No. 8:96CR129-1 (D.Neb. May 13, 1997) Judgment at 6 (Statement of Reasons for Sentence).

In his appeal to the district court, Michelsen challenged both the constitutionality of the Child Support Recovery Act and the sentence imposed by the magistrate judge. Rather than addressing the merits, the district court granted the government's motion to dismiss the appeal with prejudice, holding that Michelsen had validly waived his appellate rights. See Memorandum Opinion and Order at 2-3 (D.Neb. July 21, 1997). Michelsen now seeks relief from the district court's order of dismissal.

II.

The Constitution makes no assurances regarding the right of a criminal defendant to appeal his conviction or sentence; such a right is "purely a creature of statute." United States v. Rutan, 956 F.2d 827, 829 (8th Cir.1992) (citing Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038-39, 52 L.Ed.2d 651 (1977)); see 18 U.S.C. § 3742; 28 U.S.C. § 1291. It is well settled that a procedural right, whether constitutionally derived or grounded in statute, may be waived by a criminal defendant. See United States v. Garrido, 995 F.2d 808, 814 (8th Cir.1993); Rutan, 956 F.2d at 829. "Accordingly, a defendant who pleads guilty and expressly waives the statutory right to raise...