U.S. v. Stewart

• Decision Date: 07 May 1999
• Docket Number: No. 98-40097-01-SAC.,98-40097-01-SAC.
• Citation: 51 F.Supp.2d 1147
• Parties: UNITED STATES of America, Plaintiff, v. Shawn E. STEWART, Defendant.
• Court: U.S. District Court — District of Kansas

51 F.Supp.2d 1147

UNITED STATES of America, Plaintiff, v. Shawn E. STEWART, Defendant.

No. 98-40097-01-SAC.

United States District Court, D. Kansas.

May 7, 1999.

Randy M. Hendershot, Office of United States Attorney, Topeka, KS, for plaintiff.

Mark L. Bennett, Jr., Bennett & Dillon, L.L.P., Topeka, KS, Steven D. Rosel, Topeka, KS, for Defendant.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

On October 14, 1998, the grand jury returned a twelve count indictment charging the defendant with six separate counts of committing robberies affecting interstate commerce (in violation of 18 U.S.C. § 1951 (Hobb's Act)), and six separate counts of using and carrying a firearm during and in relation to crimes of violence (in violation of 18 U.S.C. § 924(c)(1)). The crimes are alleged to have occurred in Topeka and Lawrence, Kansas. Since October 20, 1998, Steven Rosel, retained counsel, has represented Stewart.

On January 15, 1999, the court conducted a hearing to consider the parties' respective pretrial motions. On January 28, 1999, this court entered a thirty page memorandum and order which, inter alia, granted in part and denied in part the defendant's motion to suppress his post-arrest statements to law enforcement officers. See United States v. Stewart, 51 F.Supp.2d 1136 (D.Kan.1999). The case was set for trial to commence on February 9, 1999.

On February 2, 1999, the court conducted a hearing to consider the defendant's petition to enter a guilty plea. Stewart's counsel had negotiated a conditional plea agreement with the government which preserved his right to appeal this court's partial denial of his motion to suppress. In addition, in exchange for his guilty plea to Counts 1, 2, 3, 4, 5, 7, 9 and 11 (six Hobb's Act violations/two § 924(c) violations) the government agreed, inter alia, to dismiss Counts 6, 8, 10 and 12 of the indictment, counts charging § 924(c) violations.

Prior to accepting the defendant's pleas, the court engaged the defendant and his counsel in an extensive colloquy regarding the terms of the plea agreement, the maximum and minimum penalties the defendant faced by entering his pleas, and the defendant's understanding of the impact of the plea agreement. The court asked the defendant if he understood that his guilty pleas waived several of his constitutional rights. The defendant indicated that he understood those rights he relinquished by entering his pleas. In response to the court's question, the defendant indicated that he was satisfied with his counsel's performance and that his counsel had explained the plea agreement, the rights he was waiving, and the salient aspects of the plea agreement. The defendant understood the consequences of his pleas. After the government offered its factual proffer, the court asked the defendant if those facts proffered by the government were true, to which the defendant responded that they were true. The defendant stated that he understood the minimum and maximum penalties in this case and that no one had predicted what sentence he would receive. The defendant also indicated that his counsel had explained the United States Sentencing Guidelines. The court indicated that the defendant had the right to appeal and that the court intended to approve the portion of the plea agreement that permitted the defendant to appeal the partial denial of his motion to suppress. The defendant agreed that he understood. The defendant was also explained that parole has been abolished.

In sum, the defendant stated under oath that his decision to enter guilty pleas was his own, that his decision was not the product of coercion, that it was not induced by promises not otherwise contained in the plea agreement, and that he understood the consequences of his decision. The defendant also acknowledged that he would not be permitted to withdraw his pleas unless the court did not grant the government's motion to dismiss the remaining § 924(c) counts (Counts 6, 8, 10 and 12) as set forth in paragraph 4 of the plea agreement. Only after meticulously following the protocols established by Fed.R.Crim.P. 11, and only after being satisfied in its own mind that the defendant's decision to enter a guilty plea was the voluntary, knowing and intelligent product of the waiver of his rights, did the court accept the defendant's pleas.

By his pleas, the defendant faces a mandatory minimum sentence of 25 years on the two § 924(c) counts (5 years + 20 years = 25 years), plus additional time for the Hobb's Act violations.¹ However, by entering this plea agreement, the defendant avoids the possibility of facing four additional § 924(c) convictions. Had the defendant proceeded to trial and been convicted of all those § 924(c) counts, the court would have been compelled to impose a mandatory consecutive sentence of five years on the first § 924(c) conviction and a mandatory consecutive sentence of 20 years on each additional § 924(c) conviction, resulting in a possible mandatory minimum sentence of 105 years.

On March 23, 1999, the defendant, now represented by newly retained counsel,² Mark L. Bennett, Jr., filed a motion titled "Defendant's Motion to Vacate and Set Aside Plea and To Reopen Hearing on Defendant's Motion to Suppress His Statement and to Allow him to Present Evidence for the Reason that He Has Been Denied his Sixth Amendment Right to Effective Assistance of Counsel and His Fifth Amendment Right to Due Process and Equal Protection" (Dk.31).

Specifically, the defendant contends that Rosel was ineffective in the following ways: (1) ignoring Stewart's claims of factual innocence; (2) ignoring factual inconsistencies between the eye witness identifications of the alleged perpetrator and Stewart's physical appearance; (3) failing to maintain proper communication with Stewart including failing to fully explain the plea agreement; (4) taking steps to have a block placed on his phone so that Stewart, who was housed at CCA, could not contact him by telephone to discuss the case; (5) failing to argue that Stewart's post-arrest statements were the product of coercion by law enforcement officers; (6) not calling either the defendant or the defendant's mother to the witness stand during the suppression hearing despite their requests to do so; (7) pressuring the defendant to accept the plea agreement although Stewart did not want to do so; (8) failing to provide adequate counsel regarding the terms, conditions and effect of the plea agreement prior to the change of plea hearing; and (9) misinforming the defendant of the maximum penalty that he could potentially serve.

In a thorough response, the government adamantly opposes the defendant's motion to withdraw his pleas. First, the government suggests that almost all of the defendant's allegations of neglect and incompetence of Rosel are unfounded as demonstrated by the record and that "Mr. Bennett should have procured the transcript of the [suppression] hearing before making these allegations against another attorney." As to the defendant's new arguments, the government systematically addresses each issue. The government's memorandum concludes with a discussion of the factors suggested by the Tenth Circuit for determining whether a defendant should be permitted to withdraw his plea. In short, the government contends that the defendant's stated reasons for withdrawing his pleas, including his post hac attack on the competence of his counsel, are inadequate to permit the withdrawal of his pleas at this juncture.

Beginning on April 14, 1999, and concluding on April 20, 1999, the court conducted a hearing to consider the defendant's motion to withdraw his pleas. The court also heard evidence pertaining to the defendant's motion to suppress. At the hearing, the defendant, the defendant's mother and the defendant's step-father testified regarding the quality of Rosel's representation. Each opined that Rosel's legal representation of Stewart was deficient in several respects. The defendant and his parents each testified that prior to the change of plea hearing, they did not understand that under the terms of the plea agreement the mandatory minimum sentence would be twenty-five years or that Stewart would face an additional period of incarceration for the robberies. Each of these witnesses also testified that in their own opinion, Rosel had not zealously represented Stewart and had failed to maintain adequate communication with Stewart. Each witness claimed that despite Stewart's request, Rosel did not call Stewart or his mother as witnesses at the motion to suppress hearing ostensibly because he said he needed to be in another court later that afternoon.

Stewart testified that he did not see an actual copy of the entire plea agreement and the petition to enter a plea until the morning before the change of plea hearing, and at that time he was only able to see it through the mesh-covered glass window that separated him from Rosel while in the interview room in the Marshal's office.

The government called Rosel as a witness.³ Throughout his testimony Rosel described the legal services he has provided during his representation of Stewart in this case. Rosel explained that his primary concern in representing every criminal client is to minimize his or her potential exposure to the incarceration system. Although he had not gone over every single word of the plea agreement with Stewart prior to the change of plea hearing, Rosel was confident that Stewart understood the most significant provisions of the agreement, including the minimum sentence that he faced.

As to the defendant's challenge to his performance and the decisions he made during the motion to suppress hearing, Rosel testified that his decision to not call either the defendant or his mother as witnesses was a tactical one and had nothing to do with his need to appear in another court. Rosel testified that it was his belief that the winning legal argument on the motion to...