USA v. Hernandez

• Citation: 203 F.3d 614
• Decision Date: 11 February 2000
• Docket Number: No. 98-50206,98-50206
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. PEDRO HERNANDEZ, aka Hernandez Jose Gregorio Ventura; aka Jose Gregorio Ventur Hernandez; aka Francisco Huerrera; aka Antonio Hernandez; aka Jose Delgado; aka Pedro Avalos; aka Miguel Ibarra, Defendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 614

203 F.3d 614 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. PEDRO HERNANDEZ, aka Hernandez Jose Gregorio Ventura; aka Jose Gregorio Ventur Hernandez; aka Francisco Huerrera; aka Antonio Hernandez; aka Jose Delgado; aka Pedro Avalos; aka Miguel Ibarra, Defendant-Appellant.

No. 98-50206

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted June 7, 1999

Decided February 11, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] COUNSEL: Stephen M. Lanthrop, Lanthrop & Villa, Redondo Beach, California, for the defendant-appellant.

Lee S. Arian, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellee. Before: Dorothy W. Nelson, Stephen Reinhardt, and Stephen S. Trott, Circuit Judges.

Appeal from the United States District Court for the Central District of California; James M. Ideman, District Judge, Presiding¹ D.C. No. CR-97-00496-JMI-1

Opinion by Judge Reinhardt

REINHARDT, Circuit Judge:

Pedro Hernandez pleaded guilty to one count of illegal reentry in violation of 8 U.S.C. S 1326. He now appeals both his conviction and sentence. He asserts that the district court erred in denying his pretrial request that he be allowed to represent himself, and that this denial of his Sixth Amendment right rendered his subsequent guilty plea involuntary. Hernandez argues separately that the district court violated his Sixth Amendment rights by not permitting him to represent himself at his sentencing hearing. We agree that Hernandez's plea was involuntary and vacate his conviction. Accordingly, we need not reach the separate sentencing issue.

I. BACKGROUND

Hernandez was deported from the United States on June 26, 1992, and May 11, 1994, after being convicted of various drug-related felonies and assault with a deadly weapon. On May 10, 1997, Hernandez was found in Los Angeles County and taken into custody. He was later charged in a two-count indictment with (1) illegal reentry as an alien into the United States following deportation and felony conviction, in violation of 8 U.S.C. S 1326(a), (b)(1); and (2) illegal reentry as an alien into the United States following deportation and conviction of an aggravated felony, in violation of 8 U.S.C. S 1326(a), (b)(2).²

A pretrial status conference was held on June 30, 1997. Hernandez, unhappy with his counsel's efforts and lack of communication, requested that the court appoint new counsel. Judge Ideman refused to do so. Hernandez then stated that if the court would not appoint another attorney, then he would like to represent himself:

[HERNANDEZ]: Well, I mean, if you can't change him, I'd like to represent myself, with an interpreter, if you don't want to assign [another attorney].

THE COURT: I won't give you another lawyer. You haven't given me sufficient to cause [sic] to do that. I will permit you to represent yourself if you insist on doing it. I will tell you that I think it's a mistake, particularly since you not only are apparently not legally trained, but you also do not understand or speak English. Yet, you have a Constitutional Right to represent yourself.

Following Hernandez's request to represent himself, the district judge began to question him, saying, "I'm trying to evaluate whether you have some basic capability to defend yourself." The judge engaged Hernandez in the following colloquy:

THE COURT: Do you know how much time you could receive if you're convicted of this offense?

HERNANDEZ: Well, I was told 70 to 85 or 82. I don't remember.

THE COURT: What does the government have to prove to convict you of this offense?

HERNANDEZ: Well, that I'm guilty for having come in here twice illegally, but -but, you know, I want to know why I'm getting all these points.

At this point the district judge asked Hernandez more forcefully what the government would have to prove in order to convict him, and Hernandez responded even more simply that the government would have to prove that he was guilty.³ After this response, the judge abruptly cut Hernandez off and denied his self-representation request, stating that"[t]he Court finds the defendant is not capable of defending himself and denies his request to represent himself." On July 22, 1997, the date set for trial, Hernandez entered an unconditional plea of guilty to Count Two of the indictment.

During sentencing, Hernandez again complained about his attorney and requested that the court appoint new counsel, but did not renew his self-representation request. The district judge again denied Hernandez's request for new counsel, and sentenced him to a term of 120 months imprisonment, three years supervised release, and a special assessment of $100.

Hernandez now asks us to set aside his guilty plea on the ground that it was not voluntary and, in the alternative, to vacate his sentence on the ground that his Sixth Amendment rights were violated during sentencing.

II. DISCUSSION

On appeal, Hernandez attacks his plea on the ground that it was not voluntary.⁴ In order to be valid, a guilty plea must be "voluntary and intelligent."⁵ See Tollett v. Henderson, 411 U.S. 258, 267 (1973); Brady v. United States, 397 U.S. 742, 748 (1970); McMann v. Richardson, 397 U.S. 759, 766 (1970); Boykin v. Alabama,395 U.S. 238, 242 (1969); cf. Fed. R. Crim. P. 11(e).⁶ A plea is "involuntary" if it is the product of threats, improper promises, or other forms of wrongful coercion, see Brady, 397 U.S. at 754-55, and is "unintelligent" if the defendant is without the information necessary to assess intelligently "the advantages and disadvantages of a trial as compared with those attending a plea of guilty."⁷ Hill v. Lockhart , 474 U.S. 52, 56 (1984); see also Brady, 397 U.S. at 754.

Hernandez claims that his plea was involuntary because the district court wrongfully denied his request to represent himself and thereby coerced him into pleading guilty. The coercion, Hernandez argues, lies in the fact that he was compelled to plead guilty in order to avoid being subjected to an unconstitutional trial at which he would be prohibited from conducting his own defense. In order to establish that the district court's denial of his request to represent himself rendered his plea involuntary, Hernandez must prove two things. First, he must demonstrate that the district court's rejection of his self-representation request violated his Sixth Amendment rights. Second, he must persuade us that, by affording him only the limited choice between a trial that deprived him of his Sixth Amendment rights and an opportunity to enter a guilty plea, the court rendered his plea involuntary.

A. Appealability

Hernandez did not challenge the voluntariness of his plea in the district court or seek to withdraw it. While ordinarily we will not consider issues not properly raised below, see United States v. Reyes-Alvarado, 963 F.2d 1184, 1189 (9th Cir. 1992), we held in United States v. Anderson , 993 F.2d 1435 (9th Cir. 1993), that, because challenges to the voluntariness of a plea are questions of law, we may address those challenges when raised for the first time on appeal if "the comments by the district court [that allegedly made the plea involuntary] are all on the record [and] there is no factual dispute regarding their nature." Id. at 1437 (second alteration in original); see also United States v. Bruce, 976 F.2d 552, 55455 (9th Cir. 1992) (addressing and ultimately granting defendant's claim that he should be permitted to withdraw his plea, even though the claim was raised for the first time on appeal, because "the issue is purely legal and the facts are fully developed"). Here, the trial court's denial of Hernandez's self-representation request is on the record, there is no factual dispute about what the court said, and there is no need for any further factual information. Because a refusal to address the issue now would simply cause Hernandez to resort to a S 2255 petition, our interest in both judicial economy and the speedy vindication of constitutional rights compels us to consider the voluntariness question now. We do so with the understanding that judicial conduct that renders a plea involuntary "constitutes plain error and entitles a defendant to withdraw his guilty plea even if the error is identified for the first time on appeal." Anderson, 993 F.2d at 1437.

B. Sixth Amendment Violation

The Sixth Amendment grants a criminal defendant the right to refuse the assistance of counsel and to represent himself in his criminal proceedings. See Faretta v. California, 422 U.S. 806 (1975). A criminal defendant's assertion of his right to self-representation must be timely and not for purposes of delay; it must also be unequivocal, as well as voluntary and intelligent.⁸ See Adams v. Carroll, 875 F.2d 1441, Hernandez's competence to waive his right to counsel is not at issue in the present appeal, because the district court did not deny his selfrepresentation request on the ground that he was incompetent in the 1442 (9th Cir. 1989); United States v. Schaff , 948 F.2d 501, 503 (9th Cir. 1991); Godinez v. Moran, 509 U.S. 389, 400-02 (1993).⁹ Where a defendant's waiver of his Sixth Amendment right to counsel meets these requirements, a court must permit the defendant to proceed pro se. Cf. Faretta, 422 U.S. at 81832.

1. Timely and Not For Purposes of Delay

The government properly does not argue that Hernandez's self-representation request was untimely or for purposes of delay. We have held that a demand for selfrepresentation is timely if made "before meaningful trial proceedings have begun," see United States v. Smith, 780 F.2d 810, 811 (9th Cir. 1986), and have also held that a request is timely if made prior to jury selection, see Moore v. Calderon, 108 F.3d 261, 264 (9th Cir. 1997); Maxwell v. Sumner, 673 F.2d 1031, 1036 (9th Cir. 1982). In this case, Hernandez sought to represent himself three weeks prior to trial, making his request timely. Nor is there any...