U.S. v. Porter
| Decision Date | 03 May 2005 |
| Docket Number | No. 04-4009.,04-4009. |
| Citation | 405 F.3d 1136 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jeffery PORTER, also known as Jeff Borter, also known as Jeff Fitzgerald Porter, also known as Damien, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Vicki Mandell-King, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with her on the briefs) Office of the Federal Public Defender, District of Colorado and Wyoming, Denver, CO, for Defendant-Appellant.
Michael S. Lee, Assistant United States Attorney (Paul M. Warner, United States Attorney, with him on the briefs, and Wayne T. Dance, Assistant United States Attorney, with him on the supplemental brief) Office of the United States Attorney, District of Utah, Salt Lake City, UT, for Plaintiff-Appellee.
Before KELLY, ANDERSON, and TYMKOVICH, Circuit Judges.
Defendant-Appellant Jeffery Porter pled guilty in the United States District Court for the District of Utah to two criminal charges: one count of possession with intent to distribute five grams or more of actual methamphetamine, 21 U.S.C. § 841(a)(1), and one count of felon in possession of ammunition, 18 U.S.C. § 922(g)(1). Porter's plea agreement limited his right to appeal his sentence. Prior to sentencing, but after execution and approval of the plea agreement, Porter filed a motion to substitute counsel because of an alleged breakdown in communications between himself and his court appointed attorney. A magistrate judge denied Porter's motion. Subsequently, the district court sentenced Porter to 110-months imprisonment.
On appeal, Porter alleges the district court erred in denying his motion to substitute counsel. He also argues he is entitled to resentencing under United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The government contends Porter is precluded from raising either of these issues on appeal because he waived his appellate rights. Exercising jurisdiction under 28 U.S.C. § 1291, see United States v. Hahn, 359 F.3d 1315, 1320-24 (10th Cir.2004) (en banc), we AFFIRM the district court's denial of the motion to substitute counsel and grant the government's motion to enforce the plea agreement as to Porter's sentence.
In 2001, government authorities executed a search warrant on Porter's Murray, Utah apartment. They uncovered approximately 76 grams (30.2 grams pure) of methamphetamine and some handgun ammunition in a bathroom. The government then filed drug and ammunition charges against Porter, a previously convicted felon.
In December 2002, Porter pled guilty to the charged crimes. The plea agreement, signed by Porter, his attorney and an Assistant United States Attorney, admitted as true the relevant facts underlying the charged crimes. The agreement also limited Porter's ability to appeal his sentence:
I knowingly and voluntarily waive my right to appeal any sentence imposed upon me, and the manner in which the sentence was determined, on any grounds in 18 U.S.C. § 3742, except that I do not waive my right to appeal (1) a sentence above the maximum statutory penalty provided in the statute of conviction, and (2) an upward departure from the final sentencing guideline range determined by the Court.
I also knowingly and voluntarily waive my right to challenge my sentence, and the manner in which the sentence was determined, in any collateral review motion, writ or other procedure, including but not limited to a motion brought under 28 U.S.C. § 2255.
(emphasis added).
The district court held a hearing to accept the plea agreement in December 2002. After discussing its terms with Porter, the district court approved the plea, finding it had a factual basis and was entered into voluntarily by Porter with full knowledge of his legal rights and the consequences of the plea. The court also specifically examined Porter about the appeal waiver, which Porter said he understood.
A few months later at the scheduled sentencing hearing, however, Porter's attorney, Michael Jaenish, told the court that Porter wished to withdraw his guilty plea and to have new counsel appointed. The district court postponed sentencing, and advised Porter to return for sentencing or for consideration of a motion to withdraw the guilty plea after a magistrate judge ruled on the substitute counsel matter.1
A magistrate judge subsequently conducted a hearing and denied Porter's motion for substitute counsel, finding no failure of representation by Jaenish. A month later Jaenish filed an affidavit with the district court stating Porter sought to withdraw his guilty plea based on ineffective assistance of counsel. Jaenish, however, concluded there was no legal basis for withdrawal of the plea, and that under the circumstances, he should no longer represent Porter. In the meantime, Porter sent a letter to the court asking for a court-ordered psychiatric evaluation of his mental competency (even though the court had previously found Porter to be competent at the hearing on the entry of plea). The court agreed and ordered an evaluation as part of the presentence investigation. The subsequent evaluation concluded Porter did not suffer from a mental condition that precluded him from understanding the nature of the charges against him or participating in his defense.
In December 2003, the district court conducted a competency hearing to review the psychiatric evaluation. As a part of those proceedings, the court questioned whether the magistrate judge had ruled on Porter's motions to substitute counsel and to withdraw his guilty plea. Jaenish misinformed the court that the magistrate judge had denied both motions. In fact, as discussed above, only the motion for substitute counsel had actually been filed with and ruled on by the magistrate judge. Jaenish never filed a motion to withdraw the plea after submitting his affidavit to the court.
At any rate, at the competency hearing the court once again offered Porter the opportunity to file a motion to substitute counsel. In response, Porter expressed his frustration with what he perceived to be Jaenish's failure to keep him informed, but stated, The district court then informed Porter: "Well, again, if you wish to take it to the magistrate, you can do so." Porter filed no further motions.
In January 2004, the district court held a final hearing to sentence Porter. Porter, still represented by Jaenish, engaged in a colloquy with the court concerning the facts supporting a sentence reduction for acceptance of responsibility. Thereafter, when asked by the court whether he had any additional comments, Porter responded:
I do understand this has been going on for a long time. And it wasn't my intent to have it go this long. And I tried to get Mr. Jaenish to understand that — you know, I was just trying to get him to understand that it's frustrating for me to sit and not being able to talk to him or him not answering my letters or anything like that.... So that is the only thing that was a big problem with us coming back and forth to court and with me and my attorney. So that is the only thing that would cause any kind of problems and, you know, I'm sorry about that. That was my only problem behind this matter. So that's all I would like to say.
Porter made no suggestion that he wished to withdraw his guilty plea or again seek new counsel. The court sentenced him to 110-months imprisonment.
This case requires us to answer two questions. First, whether the district court abused its discretion in denying Porter's motion to substitute counsel. Second, whether Porter is precluded from challenging his sentence by virtue of the plea agreement. We find no abuse of discretion and conclude the plea agreement precludes Porter's appeal of the sentence.
We review a district court's denial of substitute counsel for abuse of discretion. See United States v. Vargas, 316 F.3d 1163, 1165 (10th Cir.2003). "To warrant a substitution of counsel, the defendant must show good cause, such as a conflict of interest, a complete breakdown of communication or an irreconcilable conflict which leads to an apparently unjust verdict." United States v. Padilla, 819 F.2d 952, 955 (10th Cir.1987) (citation and internal quotation marks omitted). "Good cause for substitution of counsel consists of more than a mere strategic disagreement between a defendant and his attorney ... rather there must be a total breakdown in communications." United States v. Lott, 310 F.3d 1231, 1249 (10th Cir.2002) (citations omitted). "[T]o prove a total breakdown in communication, a defendant must put forth evidence of a severe and pervasive conflict with his attorney or evidence that he had such minimal contact with the attorney that meaningful communication was not possible." Id.
Our cases instruct us in making this assessment to look at whether (1) the defendant's request was timely; (2) the trial court adequately inquired into defendant's reasons for making the request; (3) the defendant-attorney conflict was so great that it led to a total lack of communications precluding an adequate defense; and (4) the defendant substantially and unreasonably contributed to the communication breakdown. See Romero v. Furlong, 215 F.3d 1107, 1113 (10th Cir.2000).
As a threshold matter, we dispose of the government's argument that entry of a voluntary and unconditional guilty plea waives the right to assert all non-jurisdictional defenses on appeal, see, e.g., United States v. Salazar, 323 F.3d 852, 856 (10th Cir.2003), including the denial of a motion for substitute counsel. While that is ordinarily true, it does not apply in these circumstances.
Here, Porter's request for new counsel arose after entry of the guilty plea and was based on Porter's...
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