Defendant: Yes, sir.
Guilty Plea of Daniel Blount, May 8, 1995. Transcript at 26-31.
Defense counsel has ignored all of the above language with the exception of one small part of the remarks of Attorney Donato on page 30 which he attempts to take out of context. The argument is made that Mr. Donato's remark could be taken to imply that Officer Blount could be guilty of conspiracy even if he only dealt with two people who were bringing drugs into the prison for their own personal use. This is not the meaning of the language which related to "bringing drugs into the jail" for redistribution to others. This is borne out by the following sentence in which Attorney Donato indicates that Officer Blount could be a member of a conspiracy without the government proving "that he actually knew who else those two people with whom he dealt, were dealing with." This meaning is the only one which is consistent with our lengthy and detailed explanation which the defendant said he understood.
Moreover, the defendant has not made the necessary assertions of innocence to support his pro se motion to withdraw his guilty plea. On the contrary, he has admitted that he was bringing drugs into the prison. He also admitted this to his attorney, and admitted it again while testifying at the January 3, 1996 hearing. He further admitted, albeit grudgingly, that believed "what everyone was saying, Pernell was getting drugs in the prison." He claimed that guards, including lieutenants and sargents knew this but specifically denied inmates ever had told him of Riddick's activities. Yet only moments later, when asked whether he was aware that Riddick Sr. was having drugs brought into Lehigh County Prison on a daily basis, Officer Blount claimed he was not. Officer Blount's flip-flopping on the most basic questions of his involvement in the drug conspiracy convince us he is still attempting to conceal a great deal. The evidence of his guilt is overwhelming, including lengthy testimony and numerous tape recorded conversations.
We can not help but note that the defendant's pro se motion on December 17, 1995, came shortly after we had tentatively ruled on November 30, 1995, that the government's position with regard to the attribution of drugs under Collado was correct. Defendant's pro se motion came immediately after the probation office issued a memorandum, on December 15, 1995, setting forth Officer Blount's guideline sentence for such a tentative ruling for which sentence was in a range of 97 to 121 months.
We cannot believe that defendant's seven-month delay in filing his pro se motion was prompted by detailed legal insights he somehow obtained in reading case law. Rather, even though the actual imposition of sentence has not yet taken place, there have been two sentencing hearings and sufficient information existed under the rigidity of the sentencing guidelines for Officer Blount to realize the likelihood that he would receive a substantial sentence. It is obvious that faced with this, he chose to file his pro se motion notwithstanding our explanation to him at the time of his guilty plea.
The Court: Okay. But once it's finally determined what the presentence report is, whether you agree with that or not, the plea is still binding on you, I want you to understand that, too.
Blount: Yes, sir.
The Court: You understand that?
Blount: Yes, sir.
Guilty Plea of Officer Blount, May 8, 1995, Transcript at 22.
Where a defendant understands in open court at the time of his plea that his guideline range could not be predicted but rather "directly related to the amount of controlled substance involved," he may not withdraw his guilty plea. U.S. v. Young, 981 F.2d 180, 184 (5th Cir. 1992). At the time of the guilty plea, we informed the defendant as follows:
The Court: Do you understand that in a drug case -- particularly a drug conspiracy case -- drug amounts can have a significant effect on your guideline sentencing level and under some circumstances, you can be held responsible for the quantity of drugs which was possessed by others or in counts which are dismissed. Do you understand that?
Defendant: Yes, your Honor.
Guilty Plea of Defendant Blount, May 8, 1995, Transcript at 47.
A defendant may not withdraw his plea simply because of his "fear of substantial sentence." U.S. v. Jones, 979 F.2d 317, 318 (3d Cir. 1992). We believe it is just such a fear that inspired Officer Blount to make his pro se motion. Withdrawal of a guility plea is a "privilege," not a right. Kercheval v. U.S., 274 U.S. 220, 224, 71 L. Ed. 1009, 47 S. Ct. 582 (1927); U.S. v. Trott, 779 F.2d 912, 915 (3d Cir. 1985)(citing Government of Virgin Islands v. Berry, 631 F.2d 214, 219-20 (3d Cir. 1980). We are well aware that the defendant had not been formally sentenced at the time of his pro se motion. Nevertheless, so much information had been developed that he could predict his probable sentence with some accuracy. We therefore find the case law pertaining to post-sentence motions to be informative. As the Third Circuit has clearly stated:
Courts naturally look with a jaundiced eye upon any defendant who seeks to withdraw a guilty plea after sentencing on the ground that he expected a lighter sentence. Cases of disappointed but unfounded expectations must be carefully distinguished from those in which the record shows, when judged by objective standards, the defendant was reasonably justified in his mistaken impression of the possible consequences.
U.S. v. Crusco, 536 F.2d 21, 24 (3d Cir. 1976). The District Court should deny a post-sentence motion to withdraw a plea unless manifest injustice will result. Paradiso v. U.S., 482 F.2d 409, 416 (3d Cir. 1973). A court may also consider whether withdrawal of the plea would substantially inconvenience the court and wast judicial resources. U.S. v. Badger, 925 F.2d 101, 104 (5th Cir. 1991). In light of extensive testimony and other evidence showing Officer's complicity in the drug conspiracy, we do believe such a waste of resources would occur here.
A defendant's sworn colloquy before this court is not something we take lightly. The United States Supreme Court expressed its view of colloquies in the context of guilty pleas, in Blackledge v. Allison, 431 U.S. 63, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977). We there stated that "solemn declarations in open court carry a presumption of verity." Id. at 74, 97 S. Ct. at 1629. Although these in-court declarations are not per se voluntary and intelligent, "the subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismissal, as are contentions that in the face of the record are wholly incredible." Id. (citing Machibroda v. U.S., 368 U.S. 487, 495-96, 82 S. Ct. 510, 514, 7 L. Ed. 2d 473 (1962); Price v. Johnston, 334 U.S. 266, 286-87, 68 S. Ct. 1049, 1060-61, 92 L. Ed. 1356 (1948)).
For the foregoing reasons, we denied Officer Blount's pro se motion. We also believe that the government would be prejudiced if we were to allow Officer Blount to withdraw his plea but we need not discuss this issue because defendant has not established a proper basis for withdrawing his plea.
An appropriate order follows.
AND NOW, this 8th day of January, 1996, the foregoing memorandum, the presentence report and all supplements thereto are hereby made a part of the record. It is further ordered that Daniel Pernell Blount's motion to withdraw his guilty plea, filed on December 26, 1995, is DENIED.
BY THE COURT
Franklin S. Van Antwerpen
United States District Judge