U.S. v. Rhodes

• Decision Date: 06 September 1990
• Docket Number: No. 89-3241,89-3241
• Citation: 913 F.2d 839
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert L. RHODES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 839

913 F.2d 839

UNITED STATES of America, Plaintiff-Appellee, v. Robert L. RHODES, Defendant-Appellant.

No. 89-3241.

United States Court of Appeals Tenth Circuit.

Sept. 6, 1990.

Robin D. Fowler, Asst. U.S. Atty. (Lee Thompson, U.S. Atty., with her on the briefs), Wichita, Kan., for plaintiff-appellee.

Vicki Mandell-King, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the briefs), Denver, Colo., for defendant-appellant.

Before McKAY and SETH, Circuit Judges, and PARKER, District Judge. ^*

PARKER, District Judge.

Defendant Robert L. Rhodes entered a plea of guilty to one count of possession of more than five grams of a substance containing cocaine base, in violation of 21 U.S.C. Sec. 844(a). ¹ Subsequently, at his sentencing hearing, Rhodes made an oral motion to withdraw his plea pursuant to Rule 32(d) of the Federal Rules of Criminal Procedure. The court denied the motion and sentenced Rhodes to imprisonment for a term of 210 months followed by a three year term of supervised release. ²

Rhodes appeals the district court's denial of his motion to withdraw the plea of guilty. He contends that (1) the district court erred by finding that the plea of guilty was voluntarily entered; (2) defense counsel's failure to determine Rhodes' complete criminal history constitutes ineffective assistance of counsel; and (3) the district court abused its discretion by denying Rhodes' motion to withdraw his plea of guilty. We affirm.

I. Background

On May 18, 1989, the district court held a hearing on defendant's Petition to Enter Plea of Guilty. (Vol. II at 5). The Petition to Enter Plea of Guilty, which was signed by Rhodes in open court, provides in part:

I told my lawyer all the facts and circumstances known to me about the charges against me in the indictment. I believe that my lawyer is fully informed on all such matters.

* * * * * *

I possessed in excess of Five (5) grams of a substance which contained cocaine base.

* * * * * *

My lawyer informed me that the plea of "Guilty" could subject me to a maximum punishment which, as provided by law, is 20 years imprisonment and a fine of $250,000 for the offense(s) charged in Count(s) I of the indictment.

(Vol. I, Doc. 23, Para. 4, 5, 10).

At the plea hearing, Rhodes stated that he understood the terms of the plea agreement, including the government's agreement not to charge a more serious offense in the case, such as distribution, which would carry a ten year minimum sentence. (Vol. II at 5-6). Rhodes further indicated that no promises or assurances had been made in order to induce him to offer a plea of guilty and that no one had "predicted or promised to [him] what the sentence would be in this case." Id. at 6, 14. The court reviewed the facts of the offense with the defendant, as required by Rule 11. This review concluded in Rhodes' admission, under oath, that he had possessed in excess of five grams of a substance containing cocaine base as set forth in the plea agreement. Id. at 14-15.

Before accepting Rhodes' plea of guilty, the court advised Rhodes that if the plea of guilty were accepted, he would not be able to withdraw his plea. Id. at 8. The court fully advised Rhodes of the implications of sentencing under the Sentencing Guidelines. Rhodes was informed that the court would not be able to determine the guidelines sentence range until after completion of the presentence report; and that the court had the "authority in some circumstances to impose a sentence that is more severe or less severe than the sentence called for by the guidelines." Id. at 13. The court further apprised Rhodes of the twenty year maximum prison sentence which could be imposed and the five year minimum prison sentence mandated by statute. Id. at 16. In colloquy with the court, Rhodes confirmed that he had discussed the Sentencing Guidelines with his defense counsel and was advised about their applicability. Id. at 13.

On August 28, 1989, the day scheduled for sentencing, Rhodes orally moved to withdraw the plea of guilty on the ground that defense counsel incorrectly represented to Rhodes that he would receive a sentence of not more than five years, the statutory minimum. Id. at 21. Defense counsel advised the court that Rhodes had not fully discussed his prior criminal record with counsel. Rhodes told his attorney about only one of his six convictions. Id. at 21, 26. Defense counsel stated that if Rhodes had divulged the full extent of his prior criminal convictions counsel "substantially would have changed what I would have done had I known about that from a lot of perspectives and [had I] discussed that with my client." Id.

Rhodes testified that he sought to withdraw his plea because he was now aware that he would receive a much harsher sentence than what he had anticipated at the time of entering his plea. Id. at 32. Rhodes stated that at the time he spoke with defense counsel regarding his prior convictions, he had been drinking heavily ³ and had forgotten about his prior convictions. Id. at 26. Rhodes also testified, however, that he informed the probation officer of several of his prior convictions, which he failed to mention to his attorney, in connection with bail review. Id. at 28-30. David Hill, the United States Probation Officer responsible for preparing the presentence report, confirmed that Rhodes had informed him of several prior convictions. Id. at 41.

The district court denied the motion to withdraw the plea finding that "the lapse of memory, whether intentional or otherwise on behalf of the defendant ... who does not fully disclose to his attorney or others before the plea is entered is not a basis on which a motion to withdraw a plea of guilty should be granted." Id. at 49.

II. Voluntary Plea

Rhodes maintains that his plea of guilty was involuntary. Specifically, Rhodes contends that his attorney's miscalculation of the likely length of his sentence under the guidelines, admittedly because Rhodes failed to inform his counsel of his own prior criminal convictions, along with the court's failure to apprise him of the anticipated guideline range, renders the plea involuntary. ⁴

Whether a plea is voluntary is a question of federal law subject to de novo review. Laycock v. State of N.M., 880 F.2d 1184, 1186 (10th Cir.1989) (citing Marshall v. Lonberger, 459 U.S. 422, 431, 103 S.Ct. 843, 849, 74 L.Ed.2d 646 (1983)).

"[A] defendant's guilty plea must be both knowing and voluntary in order to be valid, and ... the defendant's decision to plead must constitute a 'deliberate, intelligent choice between available alternatives.' " United States v. Fernandez, 877 F.2d 1138, 1142 (2d Cir.1989) (quoting Rosado v. Civiletti, 621 F.2d 1179, 1191 (2d Cir.), cert. denied 449 U.S. 856, 101 S.Ct. 153, 66 L.Ed.2d 70 (1980)). A plea may be involuntary when an attorney "materially misinforms the defendant of the consequences of the plea or the court's probable disposition." Laycock, 880 F.2d at 1186. Although an attorney's unfair representation of probable leniency may be found coercive, an erroneous estimate of sentence does not render the plea involuntary. Id.

The undisputed facts surrounding the plea agreement, the procedures the district court followed at the plea hearing, and Rhodes' own assertions, belie Rhodes' contention that his plea was involuntary. The plea agreement contained Rhodes' statement admitting his commission of the charged offense in addition to Rhodes acknowledgement that he had been advised of the maximum and minimum penalties.

At the plea hearing on May 18, 1989, Rhodes indicated his understanding of the terms of the plea agreement and was advised by the court that he would not be able to withdraw the plea. The judge further advised Rhodes, prior to accepting the plea, that he would be unable to determine the sentence under the guidelines until after completion of the presentence report and that he had the authority to impose a sentence above or below the guideline range in certain situations. Rhodes represented to the court that he had discussed the guidelines with his attorney and was advised about their applicability.

The court was not required to inform Rhodes of the applicable Sentencing Guideline range prior to accepting Rhodes' plea of guilty. United States v. Turner, 881 F.2d 684, 687 (9th Cir.1989); Fernandez, 877 F.2d at 1138, 1143 (2d Cir.1989) (district court "not required to calculate and explain the Guidelines sentence"); United States v. Henry, 893 F.2d 46, 48-49 (3rd Cir.1990) (district court not required to advise defendant of guideline range, as it is not required by Rule 11, and may not even be ascertainable at time). Rule 11 requires only that the defendant be informed of " 'the mandatory minimum penalty provided by law ... and the maximum possible penalty provided by law.' " Fernandez, 877 F.2d at 1142-43 (quoting Fed.R.Crim.P. 11(c)(1)). In this case, the court advised Rhodes of the mandatory minimum penalty and the maximum penalty that could be imposed.

Admittedly, Rhodes failed to apprise his attorney of his extensive criminal history. Consequently, defense counsel incorrectly advised Rhodes that he was facing a sentence of not more than five years. The presentence report, however, showed that Rhodes had six prior convictions. The applicable guideline sentencing range was 210 to 240 months. "The fact that the applicable Sentencing Guideline range was higher than defense counsel estimated, however, does not demonstrate a violation of Federal Rule of Criminal Procedure 11." United States v. Turner, 881 F.2d 684, 686 (9th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 199, 107 L.Ed.2d 153 (1989).

Rhodes seeks to distinguish the cases of Turner and Fernandez, despite notable similarities, on the ground that the disparities between the anticipated and actual sentences imposed in those cases were much less severe than the disparity in his case. Although the disparity between the...