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U.S. v. WILDER

September 15, 2005.

UNITED STATES OF AMERICA, Plaintiff,
v.
GARY KENNETH WILDER, JR. Defendant.



The opinion of the court was delivered by: JOY FLOWERS CONTI, District Judge

MEMORANDUM ORDER

Pending before the court is the renewed motion for withdrawal of guilty plea filed by defendant Gary Kenneth Wilder, Jr. ("defendant" or "Wilder"). The court will deny the renewed motion because after considering and balancing the three factors for withdrawal of a guilty plea set forth in United States v. Jones, 336 F.3d 245 (3d Cir. 2003) ("Jones II"), the court finds that defendant did not show a fair and just reason for withdrawing his guilty plea.

Background

  Defendant appeared before this court on November 4, 2003 to change his previous plea of not guilty at counts 6 and 9 of the indictment to a plea of guilty. At the hearing, the court placed defendant under oath and found defendant competent to plea without objection from his previous counsel. Transcript of November 4, 2003 Hearing ("Tr.") at 3-5. The court further explained defendant's constitutional and other rights, including: defendant's right to a trial by jury; his privilege against self-incrimination; his right to participate in jury selection; the applicable burden of proof beyond a reasonable doubt the government would be required to meet at trial; and his right to confront, question and cross-examine witnesses at trial. Tr. at 6-9. The court also explained that if defendant entered a guilty plea, he would waive all of those rights. Id. at 9. Defendant indicated he understood the effect of a guilty plea and stated to the court that he still wanted to plead guilty. Id. at 9-10.

  The court then explained that the United States Sentencing Guidelines would apply to any sentence imposed at counts 6 and 9. Id. at 11. The court informed defendant that it would be unable to determine defendant's guideline sentence range until after a presentence report was prepared by the United States Probation Officer, and until after both defendant and the government had an opportunity to respond to the facts contained in that report. Id. After informing defendant that a presentence report was necessary to determine his Guidelines range, the court advised defendant of the minimum and maximum penalties with respect to counts 6 and 9 of the indictment. Id. at 13-15. The court stated with respect to count 6 that the minimum penalty was a term of imprisonment of 5 years with a term of supervised release of 4 years, and that the maximum penalty was a term of imprisonment of 40 years, a lifetime of supervised release, and a fine of $2,000,000. With respect to count 9, the court informed defendant that the minimum penalty was a term of imprisonment of not less than 5 years to be served consecutively to any other term of imprisonment imposed for conviction on count 6 in the indictment. The court explained that because the term of imprisonment at count 9 ran consecutively, it would be added to any term of imprisonment to which defendant was sentenced at count 6. The court then stated that the maximum penalty to count 9 was a term of life imprisonment, a term of supervised release of 3 years, and a fine of $250,000. Finally, the court, in a summary of the total penalty defendant would be facing, stated that the total minimum penalty as to counts 6 and 9 would be a term of imprisonment of 10 years and a term of supervised release of 5 years, and that the total maximum penalty as to counts 6 and 9 could be a life term of imprisonment, a life term of supervised release, and a fine of $2,250,000. Id.

  The court also asked defendant the following question: "Mr. Wilder, do you understand that if the sentence imposed is more severe than you expected, you will still be bound by your plea and will not be able to withdraw?" Id. at 12. Defendant replied, "Yes." Id. Defendant also stated that he understood everything the court stated to him, including the minimum and maximum penalties for his offenses. Id. at 13-16. Defendant further testified no one had threatened or coerced him in any way to plead guilty, and that, with respect to the terms of his written plea agreement with the government, no promises had been made to induce him to plead guilty. Id. at 18, 24-25. The court entered into the following exchange with defendant regarding whether he had received any promises or predictions with respect to the actual sentence he would receive:
THE COURT: Mr. Wilder, has anyone made any promise other than the promises made in the plea agreement that has induced you to plead guilty?
MR. WILDER: No.
THE COURT: Has anyone made any prediction or promise to you as to what your aactual [sic] sentence will be other than what you've been told as a minimum and maximum sentence?
MR. WILDER: No.
THE COURT: Has anything I said today other than what I told you about the minimum and maximum sentence suggested to you what your actual sentence will be?
MR. WILDER: No.
THE COURT: Have you been instructed by the government attorney, your attorney or anyone else to respond untruthfully to any question concerning a promised sentence? MR. WILDER: No.
Id. at 24-25.
  Immediately after the above exchange, the court asked and defendant responded to the following two questions:
THE COURT: Mr. Wilder, did you conspire to distribute and possess with the intent to distribute 100 grams or more of heroin in violation of Title 21, United States Code Section 846, as set forth in Count 6 of the indictment filed at Criminal No. 03-72, which I have summarized for you a few minutes ago?
MR. WILDER: Yes.
THE COURT: Mr. Wilder, did you carry a firearm during and in relation to drug trafficking crime and/or possess a firearm in furtherance of a drug trafficking crime in violation of Title 18, United States Code, Section 924(c)(1)(A)(I), as set forth in Count 6 of the indictment filed at Criminal No. 03-72?
MR. WILDER: Yes.
Id. at 25.

  The government then summarized the government's evidence as to counts 6 and 9, stating that the charges against Wilder were a result of a multi-agency investigation of the Michael Good drug trafficking organization. Id. at 27. The government explained that it was able to procure a court authorized wiretap on a total of five cellular phones: two of the phones belonged to Michael Good, and three other cell phones belonged to other alleged co-conspirators indicted in Criminal Action No. 03-72. Id. at 27-28. The Drug Enforcement Administration and the Pittsburgh Police Department were able to monitor calls made on these cellular phones, as well as use surveillance and other investigative techniques, in order to confirm that Michael Good's organization was distributing large quantities of crack cocaine and heroin on Pittsburgh's North Side. Id. at 28. The government noted that it intercepted numerous cellular phone calls between Wilder and Michael Good which revealed that Wilder was obtaining heroin from Michael Good that Wilder distributed to others. Id. at 28-29. On January 3, 2003 agents from the Drug Enforcement Administration intercepted several telephone calls indicating that a deal was going to take place between Michael Good and Wilder. Id. at 29. The agents confirmed that a deal took place on January 3, 2003 between Michael Good and Wilder at the Red Roof Inn in Robinson Township, Pennsylvania. Id.

  After Wilder took possession of the drugs, Pittsburgh Police officers on the same day proceeded to conduct a traffic stop of the vehicle in which Wilder was traveling. Id. The vehicle was searched pursuant to that stop and police uncovered a bag containing 125 bricks of heroin, totaling 750 stamp bags of heroin. Id. The bag also contained a 9 millimeter semi-automatic handgun. Id. Subsequent recorded telephone calls between Wilder, Michael Good and other alleged co-conspirators intercepted by the multi-agency task force revealed that the co-conspirators were concerned that they were facing federal drug and gun charges. Id.

  On February 18, 2003, a federal grand jury charged Michael Good, Wilder and 11 other alleged co-conspirators as being part of the drug trafficking organization. Id. Wilder was arrested on February 22, 2003. Id. Following his arrest Wilder was advised of his Miranda rights and he agreed to make statements. Id. Wilder admitted to federal agents that Michael Good was one of his heroin sources of supply and explained that on January 3, 2003, Michael Good had fronted him fifteen bricks of heroin and the 9 millimeter semi-automatic handgun. Id. That gun and the fifteen bricks of heroin were among the items seized from Wilder's vehicle during the January 3, 2003 traffic stop. Id. Wilder also told the agents that he owed Michael Good $4,500 for the gun and the drugs, and further admitted that he obtained numerous bricks of heroin on several occasions from Michael Good, including on one occasion three weeks prior to his arrest. Id.

  After the attorney for the government summarized Wilder's involvement in the offenses, the court asked defendant whether he agreed with the prosecution's summary of what he did. Wilder indicated to the court that he agreed with the government's summary of his conduct and stated that he still wanted to plead guilty. Id. at 31. The court then entered a judgment of guilty on the record, based upon the government's factual proffer and defendant's concurrence in that proffer. The court stated:
THE COURT: Mr. Wilder, since you acknowledge that you are, in fact, guilty as charged in Counts 6 and 9, since you know your right to a trial, since you know what the minimum possible penalty is, since you know what the maximum possible penalty is, since you are voluntarily pleading guilty, the court accepts your guilty plea and hereby enters a judgement [sic] of guilty on your plea.
Id. at 31.

  Wilder was scheduled to be sentenced by the court on January 23, 2004. One week prior to that date, Wilder filed a motion to withdraw his guilty plea. In that motion, defendant's previous counsel indicated that he incorrectly determined defendant's qualifications for career offender status under the Guidelines and that defendant was now facing four times the exposure that the attorney had predicted. Attached to defendant's motion were two signed verifications from defendant and defendant's previous counsel, attorney Paul Gettleman, asserting that the actions of defendant's previous counsel constituted ineffective assistance of counsel and precluded defendant's plea from being knowingly and intelligently made. The verifications further indicated that Wilder would not have made the guilty plea had he known he would be classified as a career criminal under the United States Sentencing Guidelines. The court held a status conference on January 30, 2004 to discuss the motion to withdraw defendant's guilty plea. Following that status conference, attorney Gettleman filed a motion to withdraw as counsel, citing a conflict of interest in that he would most likely be required to testify at a hearing with respect to his alleged ineffective assistance of counsel. The court granted that motion, and on February 18, 2004, appointed new counsel for defendant. After a status conference on March 15, 2004, the court directed the government to file its opposition to defendant's motion and directed defendant's current counsel to file a response. The parties filed the respective documents with the court, and the court scheduled an evidentiary hearing for May 27, 2004.

  At the evidentiary hearing, both defendant and his former counsel testified. Attorney Gettleman testified that he reviewed defendant's "rap sheep" of former convictions in conjunction with the Sentencing Guidelines. Transcript of May 27, 2004 Hearing ("5/27/04 Tr.") at 9-10. He stated that among defendant's previous convictions was a prior felony conviction. Id. Attorney Gettleman testified that he believed, according to the plain language of the statute and the Sentencing Guidelines, that a state simple assault misdemeanor would not count toward defendant's career criminal offender status. Id. at 10. He told the court that he reviewed defendant's case with him — including defendant's criminal history and its effect on defendant's probable Sentencing Guideline range of imprisonment — at the Allegheny County Jail several days prior to the change of plea hearing. Id. Specifically, he testified that he counseled defendant that defendant had an offense level in the low 20's and that it was his belief that defendant's sentence would be under 10 years. Id. at 9-10, 14. He also explained to defendant that the sentence on the gun charge would be five years consecutive to the drug charge. Id. at 16. The court questioned attorney Gettleman about United States v. Dorsey, 174 F.3d 334 (3d Cir. 1999), a decision in which the United States Court of Appeals for the Third Circuit concluded that the Pennsylvania offense of simple assault was a "crime of violence" and could be considered for purposes of determining career offender status. 5/27/04 Tr. at 19. Attorney Gettleman stated that he "had no idea about [Dorsey]" prior to the presentence report. Id. He testified that he had been practicing as a criminal attorney for over thirty years, and that less than five percent of his practice was devoted to federal criminal work. Id. at 10. He stated that he followed what he believed was the plain meaning of the statute in advising his client. Id. He concluded his testimony by acknowledging that he "failed" defendant by giving him wrong advice, and that was why he filed the motion for defendant to withdraw his guilty plea. Id. at 20.

  The only other witness appearing on behalf of defendant was Wilder himself. Defendant testified that attorney Gettleman advised him to plead guilty, telling him that the plea "would be good because it was under ten years. . . ." Id. at 25. After Wilder expressed skepticism, his attorney "kind of straight up said you're not going to win." Id. Defendant's attorney also told Wilder that the "career criminal didn't pertain to [defendant]." Id. Defendant stated that attorney Gettleman did not review how the Guidelines would apply to defendant. Id. Defendant further testified that he decided to plead guilty because he feared that he would potentially be exposed to a much longer term of imprisonment if he was adjudged guilty at trial, as opposed to the sentence he would receive for entering a guilty plea. Id. at 25-26. With respect to count 6, defendant stated that he was innocent of the crime charged, yet he presented no evidence with respect to his involvement, or lack thereof, in ...


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