U.S. v. Triplett, 86-3910

• Decision Date: 21 September 1987
• Docket Number: No. 86-3910,86-3910
• Citation: 828 F.2d 1195
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter Deland TRIPLETT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1195

828 F.2d 1195

UNITED STATES of America, Plaintiff-Appellee, v. Walter Deland TRIPLETT, Defendant-Appellant.

No. 86-3910.

United States Court of Appeals Sixth Circuit.

Argued Aug. 3, 1987.

Decided Sept. 21, 1987.

Paul L. Geller (Court-appointed), Toledo, Ohio, for defendant-appellant.

James D. Jensen, Asst. U.S. Atty., Toledo, Ohio, Catherine H. Killam, argued, for plaintiff-appellee.

Before MERRITT, Circuit Judge, and EDWARDS and CONTIE, Senior Circuit Judges.

CONTIE, Senior Circuit Judge.

Defendant Walter Deland Triplett appeals from the order of the district court overruling his motion to withdraw his nolo contendere plea. Defendant argues that the district court abused its discretion by refusing to grant his motion to withdraw and by failing to hold an evidentiary hearing on the motion. For the following reasons, we affirm the decision of the district court.

I.

On May 30, 1985, defendant Triplett was indicted by information for unarmed bank robbery pursuant to 18 U.S.C. Sec. 2113(a). Shortly thereafter, defense counsel Slaybod filed a motion to suppress a photographic array of Triplett. The district court conducted a hearing upon this motion on September 6, 1985, and subsequently held the photographic array to be constitutional. However, none of the government witnesses could positively identify Triplett as the perpetrator of the robbery at this hearing.

On the day of trial, February 4, 1986, Triplett, Slaybod, the prosecutor and an FBI agent met and discussed the case. Triplett learned for the first time that at least one or two of the witnesses who had not been able to identify him at the motion to suppress hearing were now able to identify him and would testify to that effect at trial. As a result, Triplett entered into a plea bargaining agreement whereby he agreed to plead nolo contendere to the unarmed bank robbery charge in exchange for a sentence with a recommended maximum penalty of ten years and an 18 U.S.C. Sec. 4205(b)(2) provision, ¹ rather than the maximum twenty-year term provided for in 18 U.S.C. Sec. 2113(a). Before accepting the plea, the district court conducted a Rule 11 hearing, Fed.R.Crim.P. 11. Defendant admits that the Rule 11 hearing was not only thorough, but that it even evidenced painstaking efforts on the part of the district court to ensure the voluntariness of his plea. That same day, the district court found defendant Triplett guilty of unarmed bank robbery.

Triplett filed a presentence motion to withdraw his plea and a motion for recusal of the district judge on April 29, 1986. In addition, defense attorney Slaybod filed a motion to withdraw as counsel. The motions for recusal and to withdraw as counsel were granted, and the case was therafter transferred to a different district judge. Triplett's new defense counsel, Geller, promptly filed a supplementary motion to withdraw the plea.

In an order dated September 15, 1986, the district court denied defendant's motion to withdraw his plea, reasoning that a withdrawn plea in this situation would not be "fair and just." The court noted that the transcript of the entry of the plea, as well as the documents concerning the plea negotiation process, established that Triplett entered his plea knowingly and voluntarily. The district court found that Triplett was disappointed with his possible sentence rather than confused or surprised on the day he entered his plea, that he had filed his motion to withdraw in an untimely fashion (eighty-four days after the plea was entered), and that the government would suffer prejudice by a delay. Triplett did not request an evidentiary hearing on his motion, and none was held.

On September 22, 1986, Triplett was sentenced to a prison term of five years with a chance of parole in accordance with section 4205(b)(2), and was ordered to pay restitution in the amount of $840 and a special assessment in the amount of $50. This timely appeal from the denial of defendant's motion to withdraw his plea followed.

II.

Triplett claims that the district court abused its discretion when it denied the motion to withdraw his plea pursuant to Fed.R.Crim.P. 32(d). Triplett claims that Rule 32(d) is to be liberally construed and that presentence motions to withdraw should be freely granted. He alleges that he was confused on the day he entered his plea as a result of learning at the last minute that witnesses would now identify him, that he misunderstood the sentencing agreement and that he had a meritorious defense. Accordingly, he asserts that the district court should have granted his motion, or at least conducted an evidentiary hearing on his motion.

Prior to the 1983 amendment to Rule 32(d), courts granted presentence motions to withdraw pleas only when it was "fair and just" to do so. United States v. Barker, 514 F.2d 208, 218-20 (D.C.Cir.) (relying on dicta in Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927)), cert. denied, 421 U.S. 1013, 95 S.Ct 2420, 44 L.Ed.2d 682 (1975); United States v. Jerry, 487 F.2d 600, 611 (3d Cir.1973); cf. United States v. Kirkland, 578 F.2d 170, 172 (6th Cir.1978) (per curiam) (the right to withdraw a plea prior to sentencing is not absolute, but is a matter left to the broad discretion of the district court). The 1983 amendment to Rule 32(d) expressly adopted this "fair and just" standard, and provides:

If a motion for withdrawal of a plea of guilty or nolo contendere is made before sentence is imposed, imposition of sentence is suspended, or disposition is had under 18 U.S.C. Sec. 4205(c), the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason. At any later time, a plea may be set aside only on direct appeal or by motion under 28 U.S.C. Sec. 2255.

(Emphasis added). Accordingly, we can rely on prior case law for guidance in determining what constitutes a "fair and just" reason for withdrawing a plea.

As an initial matter, we note that it is well settled that the movant has the burden of establishing that his presentence motion to withdraw his plea should be granted. United States v. Michaelson, 552 F.2d 472, 475 (2d Cir.1977); United States v. Lombardozzi, 436 F.2d 878, 881 (2d Cir.), cert. denied, 402 U.S. 908, 91 S.Ct. 1379, 28 L.Ed.2d 648 (1971). Additionally, the district court is afforded a broad range of discretion in determining whether to grant such a motion. Kirkland, 578 F.2d at 172. Therefore, we review the district court's denial of defendant's motion under an abuse of discretion standard.

In determining whether there is a fair and just reason to grant a motion to withdraw a plea, the district court must review all the circumstances surrounding the original entrance of the plea as well as the motion to withdraw. Jerry, 487 F.2d at 611. The court should consider whether the movant asserted a defense or whether he has consistently maintained his innocence, Barker, 514 F.2d at 220; United States v. Joslin, 434 F.2d 526, 530 (D.C.Cir.1970), as well as the reasons that a stated defense was not raised at an earlier time. Barker, 514 F.2d at 221; cf. United States v. Needles, 472 F.2d 652, 654 (2d Cir.1973) (motion to withdraw guilty plea filed on the basis that a presentence report was allegedly inaccurate; court reasoned that inaccurate report had no bearing on validity of the plea). It is also appropriate to consider the length of time between the entrance of the plea and the motion to withdraw. The shorter the delay, the more likely a motion to withdraw will be granted, and a defendant's reasons for filing such a motion will be more closely scrutinized when he has delayed his motion for a substantial length of time. See Barker, 514 F.2d at 222 (distinguishing a "swift change of heart" from a lengthy delay).

We find that the reasons offered by Triplett in support of his motion to withdraw his plea are unpersuasive. First, there is no support for defendant's claim that he was confused when he entered his nolo contendere plea or that he misunderstood the agreement itself. Not only did Triplett's attorney discuss the plea bargaining agreement with him, but the district court also ensured itself that Triplett thoroughly understood his rights and the nature of the plea bargaining agreement. In fact, based on the transcript of the entering of the plea, it is evident that the district court, pursuant to Rule 11, took every effort to guarantee that Triplett adequately considered his options and that he entered into the plea bargaining agreement voluntarily and knowingly. Accordingly, defendant cannot now claim that he was given insufficient time to consider the plea bargaining agreement. See United States v. Thompson, 680 F.2d 1145, 1153 (7th Cir.) (if a defendant had sufficient time to consider the plea bargaining agreement, he cannot later claim that he was rushed into it), cert. denied, 459 U.S. 1089, 103 S.Ct. 573, 74 L.Ed.2d 934 (1982) and 459 U.S. 1108, 103 S.Ct. 735, 74 L.Ed.2d 958 (1983).

Second, we disagree with defendant's assertion that his allegedly meritorious defense--insufficient eyewitness testimony--constitutes a fair and just reason for granting his motion to withdraw. This defense was...