USA v. Carradine

Decision Date15 December 2010
Docket NumberNo. 08-3220.,08-3220.
Citation621 F.3d 575
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Allen Lee CARRADINE, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

OPINION TEXT STARTS HERE

ON BRIEF: Kevin M. Schad, Schad & Schad, Lebanon, Ohio, for Appellant. Bernard A. Smith, Assistant United States Attorney, Akron, Ohio, for Appellee.

Before: BATCHELDER, Chief Judge; WHITE, Circuit Judge; GREER, District Judge. *

OPINION

ALICE M. BATCHELDER, Chief Judge.

The defendant appeals the judgment of conviction and sentence entered on his guilty plea to his being a felon in possession of a firearm and possession with intent to distribute cocaine. We affirm.

I.

On July 7, 2005, the grand jury indicted Allen Carradine on charges of “felon in possession of a firearm” and “possession with intent to distribute cocaine,” and a magistrate judge appointed attorney Jeffrey Kelleher to represent him. A month later, Kelleher moved the court to conduct a psychiatric exam to determine whether Carradine was competent to stand trial. The district court ordered the exam and, on February 7, 2006, conducted a competency hearing and found Carradine competent. Kelleher moved the court to compel discovery, moved to suppress certain evidence, and moved for at least two continuances. On April 26, 2006, Carradine himself moved the court to dismiss his case for lack of jurisdiction, on the basis that he had not been arrested on federal property. The district court denied the motion as improvidently filed, explaining that it would not accept any pro se filings so long as Carradine was represented by counsel (i.e., Kelleher).

At a pre-trial conference on June 15, 2006, the government offered Carradine a reduced sentence in exchange for a guilty plea and avoidance of trial. Carradine declined the offer and stated that he was firing his attorney, Kelleher, because Kelleher was actively attempting to have him incarcerated and could not be trusted. The next day, Kelleher moved to withdraw as counsel and the court granted the request. The court appointed Neal Atway as Carradine's new defense counsel.

Attorney Atway moved the court for preparation of a pre-plea presentence report and the court granted the motion. On October 11, 2006, attorney Atway moved the court for a second psychiatric or psychological examination of Carradine. The district court ordered the exam and, on January 30, 2007, conducted another competency hearing. The court again found Carradine competent. The parties prepared for trial. But on June 14, 2007, Carradine submitted an affidavit to the court attesting that his counsel, Atway, was working against him and he would be suing Atway for $9 million. Atway moved to withdraw as counsel and the court granted the motion.

On August 1, 2008, the court appointed Joseph Gardner as defense counsel, but at the final pre-trial conference on August 14, 2008, Carradine insisted that he did not want Gardner to represent him, but wanted to represent himself. Gardner explained, on the record, that Carradine had refused to communicate with him or even meet with him. Carradine agreed that he had not communicated and would not communicate with Gardner. The record depicts Carradine as obstinate and hostile; he repeatedly interrupted the judge, complained, and answered almost every question by contending that he did not understand. The court explained that the government had offered a sentence of 60 months in prison (the statutory minimum and well below the Guidelines calculation of 97 to 121 months) in exchange for a guilty plea, but Carradine insisted that he wanted to go to trial. Moreover, he insisted that he wanted to represent himself, but when the judge attempted to conduct a colloquy to determine if Carradine was competent to represent himself, Carradine answered almost every question by stating that, no, he did not understand. Based on this colloquy, the court concluded that Carradine was “not familiar with the law, [ ] not familiar with the [c]ourt procedure, [and] not familiar with the rules of evidence,” and held that he was not competent to represent himself.

The court eventually scheduled trial for October 30, 2007, and on the morning of trial, Carradine raised the prospect of representing himself one last time. A somewhat heated discussion ensued between Carradine and the court, in which Carradine insisted on his right to represent himself and the court attempted to regain control of the proceedings. See Transcript 2:8-12:24 (“Transcript of Trial/Change of Plea,” Oct. 30, 2007). At the conclusion of this exchange, the court took a recess so that Carradine could have an out-of-court discussion with his attorney, Gardner. When they returned from the recess, Carradine-through his attorney-moved to enter a guilty plea. More importantly, after this recess Carradine was the very model of congeniality-he was attentive, agreeable, and answered every question during the plea colloquy fully and thoughtfully, without interrupting, arguing, or stating that he did not understand. The court accepted his plea.

The court conducted a sentencing hearing on January 30, 2008. In the first moments of the hearing, Carradine complained to the court that he had just received his pre-sentence report and that he needed time to review it because [s]ome of the things [in it] I never seen.” The court ordered a recess, stating: “Okay. We'll give you about ten minutes and I want you to read and discuss the contents of the presentence report with Mr. Gardner.” The record does not reflect the actual duration of the recess but, when court resumed, Carradine acknowledged that he had read the presentence report and discussed it with his attorney (Gardner), and had also resolved another issue that he had raised prior to the recess. The court proceeded with the hearing and ultimately sentenced Carradine to 60 months in prison, the bottom of the newly calculated Guidelines range and the statutory minimum, and also added four years of supervised release. The court waived any fine, but ordered Carradine to pay $1,983.58 to cover the costs of impaneling the jury in anticipation of trial. Neither Carradine nor his attorney objected to any aspect of the sentence on the record at the hearing.

Carradine timely appealed both his conviction and sentence, raising three issues for our consideration. It perhaps bears mentioning that he has a new attorney for purposes of appeal.

II.

In his first claim of error, Carradine contends that the district court abused its discretion by denying his request to represent himself, arguing that the court's finding that he was incompetent to represent himself was inconsistent with its finding that he was competent to stand trial and enter a guilty plea. The Supreme Court recently decided a case on materially indistinguishable facts, holding that a judge can find a defendant incompetent to represent himself and yet competent to plead guilty or stand trial with the assistance of counsel because the tests are different. See Indiana v. Edwards, 554 U.S. 164, 128 S.Ct. 2379, 2387-88, 171 L.Ed.2d 345 (2008). Therefore, this argument is untenable.

To make a valid waiver of his right to counsel and thereby represent himself at trial, a defendant must convince the court that he apprehends “the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.” Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 92 L.Ed. 309 (1948). At his pretrial hearing, Carradine answered virtually every question directed to these matters by stating that he did not understand. Based on this record, we cannot conclude that the district court abused its discretion by denying his motion for self-representation. See Fowler v. Collins, 253 F.3d 244, 250 (6th Cir.2001).

In his second claim of error, Carradine argues that the district court erred by proceeding with sentencing when Carradine had only just received the presentence report that morning and that the ten minute recess was not enough time for him to review it. See Fed.R.Crim.P. 32(e)(2) (“Minimum Required Notice. The probation officer must give the presentence report to the defendant, the defendant's attorney, and an attorney for the government at least 35 days before sentencing unless the defendant waives this minimum period.”). When Carradine returned from the recess, however, he did not raise this concern to the district court; he stated on the record that he had read it, he had discussed it with his counsel, and he had no objections. Because Carradine did not raise this error to the district court, we review it for plain error only. See Fed.R.Crim.P. 52(b). Rule 52(b) leaves the decision to correct the forfeited error within the sound discretion of the court of appeals[.] United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Under the plain error standard, we may ...

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