therefrom in violation of 18 U.S.C. § 371.
On May 22, 1995, the United States Supreme Court issued its opinion in Wilson v. Arkansas, 131 L. Ed. 2d 976, 115 S. Ct. 1914 (1995), holding that "a search or seizure of a dwelling might be constitutionally defective if police officers enter without prior announcement . . . ." Id. at 1919 (emphasis added). However, the Court clearly left to the lower courts "the task of determining the circumstances under which an unannounced entry is reasonable under the Fourth Amendment." Id.
On June 21, 1995, Smith, by her present attorney, William F. Manifesto, Esq., moved the Court for an order permitting Smith to withdraw her plea of guilty. Smith maintains that "had defendant been aware that the Supreme Court granted certiorari on the 'knock and announce' issue, the defendant would not have entered her plea of guilty." Motion to Withdraw Guilty Plea, at unnumbered 3, P 12. Smith requests permission to withdraw her guilty plea in order to reassert her motion to suppress evidence challenging the 1988 search of the 930 Saw Mill Run Boulevard business establishment in light of the Supreme Court's decision in Wilson v. Arkansas.
Under Federal Rule of Criminal Procedure 32(e), after sentence is imposed, a plea of guilty may be set aside only on direct appeal or by motion under 28 U.S.C. § 2255. The test enunciated by the United States Supreme Court for determining the validity of a guilty plea is "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." Hill v. Lockhart, 474 U.S. 52, 56, 88 L. Ed. 2d 203, 106 S. Ct. 366 (1985) (citations omitted).
To show that ineffective assistance of counsel made a guilty plea involuntary, the movant must show that (i) his or her counsel's representation fell below an objective standard of reasonableness demanded of attorneys of criminal cases; and (ii) there is a reasonable probability that, but for counsel's errors, he or she would have proceeded to trial instead of pleading guilty. United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994) (citing Hill, 474 U.S. at 56-59 (1985)). In the present case, the claimed error of counsel is counsel's failure to inform Smith that the Supreme Court had granted certiorari on the "knock and announce" issue. Smith contends that had she been aware of the pendency of Wilson v. Arkansas before the Supreme Court, she would not have entered her guilty plea.
Under the Hill v. Lockhart standard, the quality of the advice that Smith's attorney gave her during the plea hearing determines the voluntariness of her guilty plea. The record reflects that Smith's attorney at the plea hearing was not aware that certiorari had been granted in the Wilson v. Arkansas case. However, Smith does not rely upon, nor has the Court through independent research found, any cases wherein it was held that counsel's failure to inform a client of a pending issue before the Supreme Court may be deemed constitutionally ineffective assistance of counsel. Accordingly, the record precludes a finding that the content of Smith's counsel's advice fell below the range of competence demanded of criminal defense counsel.
Assuming arguendo that Smith's counsel's advice did fall below an objective standard of reasonableness, the Court must next determine whether that "infirm advice" prejudiced Smith. Nahodil, 36 F.3d at 327. In order to satisfy the "prejudice" requirement under Hill v. Lockhart, the defendant must "show that there is a reasonable probability that, but for counsel's errors, [defendant] would have not pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59. Nahodil, 36 F.3d at 327.
Smith does not allege in her motion or supporting affidavit that, had counsel informed her about the grant of certiorari in Wilson v. Arkansas, she would have pleaded not guilty and insisted on going to trial. Because Smith has failed to allege the kind of "prejudice" necessary to satisfy the second half of the Hill v. Lockhart test, Smith's motion will be denied.
The Court finds, based on the record, that Smith has not satisfied either prong of the Hill v. Lockhart standard adopted by the Third Circuit. Therefore, Smith's motion to withdraw her guilty plea will be denied.
An appropriate order will be entered.
ORDER OF COURT
AND NOW, this 11th day of July, 1995, it is hereby ORDERED that the Motion to Withdraw Guilty Plea (Document No. 1319) is hereby DENIED.
Donald J. Lee
United States District Judge
© 1992-2004 VersusLaw Inc.