U.S. v. Newbert, CR-05-53-B-W.
| Decision Date | 17 January 2007 |
| Docket Number | No. CR-05-53-B-W.,CR-05-53-B-W. |
| Citation | 471 F.Supp.2d 182 |
| Parties | UNITED STATES of America v. Winslow NEWBERT, Defendant. |
| Court | U.S. District Court — District of Maine |
Richard L. Hartley, Law Office of Richard Hartley, Bangor, ME, Terence M. Harrigan, Vafiades, Brountas & Kominsky, Bangor, ME, for Defendant.
Joel B. Casey, Office of the U.S. Attorney, Bangor, ME, for United States of America.
ORDER ON DEFENDANT'S MOTION TO WITHDRAW GUILTY PLEA
On June 7, 2006, Winslow Newbert pleaded guilty to possession with the intent to distribute cocaine, a violation of 21 U.S.C. § 841(a)(1), and on July 31, 2006, he filed a motion to withdraw his plea. Even though the formalities of the Rule 11 hearing were fully satisfied, the Defendant was competent to enter a plea, and he entered his guilty plea in a knowing, voluntary and intelligent fashion, the Court concludes that the Defendant has presented evidence that he may be actually innocent of the crime, that he had a plausible reason for pleading guilty, that the timing of the motion — within two months of the guilty plea and before sentencing — does not disfavor permitting withdrawal of the plea, and that there is no demonstrable prejudice to the Government by granting the motion. On balance, although this is a exceptionally close case, the Court grants the Defendant's motion to withdraw.
On July 12, 2005, the Grand Jury issued an Indictment, charging the Defendant Winslow Newbert with one count of possession with the intent to distribute cocaine. Indictment (Docket # 1). Temporarily detained after his arrest on August 4, 2005, Mr. Newbert was released on bail on August 10, 2005. Order of Temp. Detention (Docket # 9); Order Setting Conditions of Release (Docket # 15). Trial was repeatedly scheduled and continued. On February 3, 2006, a change of plea hearing was scheduled for February 17, 2006, but was continued upon Mr. Newbert's motion, asserting a need for additional information. Unopposed Mot. to Continue (Docket # 40); Order (Docket # 41). On February 22, 2006, the Court reset the case for trial for March 7, 2006, but on February 28, 2006, Mr. Newbert's counsel moved to withdraw as counsel, stating that their communications had broken down. Mot to Withdraw (Docket # 46). After a hearing, the Court granted the motion on March 2, 2006, appointed new counsel, and on March 6, 2006, granted another motion to continue, this time from Mr. Newbert's new counsel. Order (Docket # 49); Mot. to Continue (Docket # 50); Order (Docket # 51). On March 6, 2006, the case was reset for trial for April 4, 2006 but was again continued on March 28, 2006, because new counsel needed time to gain familiarity with the case. Mot. to Continue (Docket # 55); Order (Docket # 56).
On April 19, 2006, the Government moved to revoke Mr. Newbert's bail based on a variety of reasons, including the Defendant's failure to maintain contact with Pretrial Services. Mot. to Revoke Order Setting Conditions of Release (Docket # 64). After a hearing, the Court granted the Motion on April 25, 2006, and Mr. Newbert was detained pending trial. Order of Revocation and Detention (Docket # 80). The matter was reset for trial and jury selection for June 6, 2006. On June 6, 2006, Defendant notified the Court that he wished to enter a plea of guilty and the Court held a Rule 11 hearing on June 7, 2006. Change of Plea Hr'g (Docket # 112); Rule 11 Tr. (Docket # 116). The Court accepted the guilty plea and ordered the preparation of a Presentence Report (PSR). Id.
The parties entered into a plea agreement which, among other things, waived Mr. Newbert's right of appeal if the Court imposed a sentence based on offense level 10 or below.1 On July 21, 2006, the Probation Office issued the PSR, which revealed that Mr. Newbert had been convicted of two burglaries in 1987 when he was 19 years old. Because there is no time limit to prior convictions for purposes of Career Offender status,2 instead of the anticipated guideline range of between 15 and 21 months, Mr. Newbert faced a guideline range dramatically escalated to between 210 and 240 months, capped by the statutory maximum.
On July 31, 2006, Mr. Newbert filed the motion to withdraw his guilty plea. Def.'s Mot. to Withdraw Plea of Guilty (Docket # 115) (Def's Mot.). The motion states that Mr. Newbert is, innocent of the crime. Id. at 1. It states that Mr. Newbert believed that, by pleading guilty, he was protecting his wife, Gail Newbert. Id. The motion goes on, however, to say that, since Mr. Newbert's arrest, his marriage has crumbled and he is no longer motivated to protect her. Id. at 1-2. In addition, he asserts that he recently learned through his daughter that James Michael Smith,3 a friend and next door neighbor, had placed, a pill bottle in his basement just before the police searched the residence on February 28, 2002. Id.
The Court held an evidentiary hearing on the motion to withdraw plea on October 18, 2006, and on November 7, 2006. See Hr'g on Mot. to Withdraw Plea Tr. (Docket # 144 & 145). On October 18, 2006, the witnesses were: Miranda Newbert, the Defendant's fifteen-year-old daughter; Gail Newbert, the Defendant's wife; Mr. Newbert himself; and Supervisory Deputy United States Marshal Randy Ossinger. On November 7, 2006, the witnesses were James Michael Smith, Desiree Newbert, another one of the Defendant's daughters, Andrew Desrochers, Desiree's boyfriend, and Fred Luce, a law enforcement officer with the Drug Enforcement Administration (DEA).
Rule 11(d) addresses the withdrawal of a guilty plea after the plea has been accepted but before sentencing. Fed.R.Crim.P. 11(d)(2). The Rule provides that at this stage a defendant may withdraw a plea of guilty if "the defendant can show a fair and just reason for requesting the withdrawal." Fed.R.Crim.P. 11(d)(2)(B); United States v. Pizarro-Berrios, 448 F.3d 1, 4 (1st Cir.2006). A defendant has no absolute right to withdraw a plea, United States v. Gonzalez, 202 F.3d 20, 23 (1st Cir.2000), and the burden of persuasion rests upon the defendant. United States v. Castro-Gomez, 233 F.3d 684, 687 (1st Cir.2000); United States v. Marrero-Rivera, 124 F.3d 342, 347 (1st Cir.1997). Whether to grant a motion for withdrawal of a guilty plea rests in the sound discretion of the trial court and is reviewed for an abuse of discretion. Castro-Gomez, 233 F.3d at 686; United States v. Ribas-Dominicci, 50 F.3d 76, 78 (1st Cir.1995).
In determining whether to allow withdrawal, the First Circuit has written that "the case law suggests that among the relevant factors are whether the plea was voluntary, intelligent, and knowing and complied with Rule 11; the force of the reasons offered by the defendant; whether there is a serious claim of actual innocence; the timing of the motion; and any countervailing prejudice to the government if the defendant is allowed to withdraw his plea." United States v. Padilla-Galarza, 351 F.3d 594, 597 (1st Cir.2003); Gonzalez, 202 F.3d at 24; United States v. Richardson, 225 F.3d 46, 51 (1st Cir.2000). In addition, the court may take into account "whether a plea agreement had been reached." Gonzalez, 202 F.3d at 24. Padilla-Galarza notes that the "customary standards of review apply, but a good deal of discretion is accorded to the district court." 351 F.3d at 597.
Whether the plea was voluntary, intelligent, and knowing is the most significant of the five factors. Richardson, 225 F.3d at 51; United States v. Cotal-Crespo, 47 F.3d 1, 3 (1st Cir.1995). To make this assessment, courts review the Rule 11 hearing to determine whether the "court adequately observed the formalities imposed by Rule 11, which are intended to assure that the defendant understands the charge and the consequences of the plea." Padilla-Galarza, 351 F.3d at 597. Rule 11(b) sets forth the district court's obligation to advise and question the defendant. Fed.R.Crim.P. 11(b).
Here, Mr. Newbert makes no claim that the formalities of Rule 11 were violated. Further, the Court has carefully reviewed the transcript of the June 7, 2006 Rule 11 hearing and concludes that the hearing satisfied each of the express requirements of the Rule.
Although Mr. Newbert is not claiming that the Court failed to observe the formalities of Rule 11, he nevertheless maintains that his guilty plea was neither voluntary nor knowing, because, at the time of the Rule 11 hearing, he was going through withdrawal symptoms from an addiction to Methadone and Oxycodone. When he testified on October 18, 2006, Mr. Newbert explained that he was an inordinately heavy user of these, drugs, taking fourteen 10-milligram tablets of Methadone a day: seven at noon and an additional seven in the evening. Hr'g on Mot. to Withdraw Plea Tr. 54:3-7. He was also prescribed a heavy dose of Oxycodone. Id. at 54:7-9. According to Mr. Newbert, after he was incarcerated on April 21, 2006, the Penobscot County Jail refused to allow him to take either Methadone or Oxycodone and allowed him to take only one 5-milligram Vicodin, and one Klonopin.4 Id. at 54:10-12. Mr. Newbert said that as a consequence of his state of withdrawal while he was at the Penobscot County Jail, he fell down a flight of stairs and was taken to the hospital. Id. at 55:8-12. He further explained that, while going through withdrawal, he was "right out of it" and could not "remember doing stuff." Id. at 55:8-12.
Mr. Newbert claimed that he was still going through withdrawal symptoms on June 7, 2006, when he entered his guilty plea. He testified that when he arrived at the courthouse on June 7, he "wasn't feeling good at all." Id. at 55:13-15. He also testified that, based on a prior incarceration, he was aware that the ...
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