United States District Court, W.D. Pennsylvania
Marshall J. Piccinini, AUSA Lee Markovitz, Esquire (Via CM/ECF Electronic Mail)
David Stewart Cercone United States District Judge
Presently before the court is defendant's counseled motion to withdraw guilty plea and a number of pro se submissions that relate to or further reflect defendant's grounds for pursuing the motion. Through these submissions defendant seeks to proceed to trial on a defense predicated on his mental condition at the time of the offense and/or a defense of justification premised on coercion and duress. For the reasons set forth below, the motion will be denied.
On November 13, 2012, a grand jury returned a one count indictment charging defendant with being a felon in possession of a firearm, on or about April 16, 2011, in violation of 18 U.S.C. § 922(g)(1). The indictment charged that on that date defendant (1) had been convicted (a) on or about October 12, 2010, in the Court of Common Pleas of Erie County, Pennsylvania, of aggravated assault and (b) on or about July 19, 2004, in the Circuit Court of Cook County, Illinois, of aggravated battery, both of which were felony offenses, and (2) knowingly possessed a Kimber .45 caliber semi-automatic handgun. Defendant was arrested on March 1, 2013, in the District of Massachusetts. He was arraigned in this District on April 18, 2013, and entered a plea of not guilty. Defendant was detained pending trial after a detention hearing held on April 24, 2013.
Defendant initially was represented by Assistant Public Defender Thomas Patton. On October 2, 2013, AFPD Patton was permitted to withdraw from further representation and Attorney Douglas Sughrue was appointed. On December 11, 2013, defendant's motion for a pre-plea investigation report was granted. A report limited to defendant's criminal history and whether he was subject to career offender status under the United States Sentencing Guidelines or the Armed Criminal Career Act was made available to defendant on February 28, 2014.
On April 7, 2014, defendant appeared with counsel for a change of plea hearing. Defendant entered a plea of guilty following an extensive inquiry by the court aimed at assuring defendant was making a knowing, informed and voluntary decision to do so. A sentencing hearing was set for August 11, 2014.
On July 16, 2014, defendant filed a pro se motion for appointment of substitute counsel. Defendant highlighted a number of disagreements with counsel, asserting that he would have been better served by a mental health examination in relation to his state of mind "now, prior to my alleged crime, and during my alleged crime." Motion for Substitute Counsel (Doc. No. 39) at 1. He further complained about counsel failing to raise matters pertaining to what he perceived as his criminal history being overstated. Id. Defendant's pro se motion was granted on July 23, 2014, and current counsel was appointed to represent defendant. The final presentence investigation report was filed on July 30, 2014.
On August 10, 2014, defendant filed a motion to withdraw his plea, which was further amended on August 25, 2014. Defendant contents that an affirmative defense and the potential ability to develop mitigating information provide a fair and just reason to permit a withdrawal of his guilty plea.
Specifically, defendant "wishes to withdraw his plea so that he may present a defense based on one or both of the following circumstances: (A) the defendant’s mental condition at the time of the offense in this case; (B) that the defendant was acting under coercion and duress so as to justify his possession of the firearm on the date in question." Amended Motion to Withdraw Guilty Plea (Doc. No. 50) at ¶ 5. He seeks to "submit to a jury a justification defense to the act of possessing a firearm after a felony conviction." Id. at ¶ 7.
Relying on United States v. Paolello, 951 F.2d 537, 540 (3d Cir. 1991) and United States v. Gomez, 92 F.3d 770, 775 (9th Cir. 1996), defendant maintains that the defense of justification can be submitted based on the following:
Defendant went into a McDonald’s restaurant to purchase a meal. He was unarmed and minding his own business. Also in that restaurant were five younger adult males. The Defendant and these 5 males were complete strangers and had never seen each other before. These males physically accosted and assaulted the Defendant for no apparent reason. One of these males picked up a chair and struck the Defendant with it. The males than ran out of the restaurant. The Defendant had no idea whether those males were leaving the scene or going to fetch firearm and return to the Defendant. (The Defendant’s history includes an incident wherein he was shot 5 times. See PSR ¶ 72). A female companion was with the Defendant at the time. At this point, the Defendant ran to the vehicle in which he had arrived and removed a firearm, and wielded it against those 4 males.
Amended Motion at ¶ 10. These facts were recorded on the McDonald's video surveillance system and assertedly meet the elements needed to warrant submitting the matter to a jury. Id. at ¶ 11.
Defendant further raises the potential of examining and then pursuing a psychiatric defense pursuant to 18 U.S.C. § 17. And his plea purportedly "was the product of ineffective assistance of counsel for counsel’s failure to investigate and pursue defenses to the indictment as described above. Therefore, Defendant asserts that his plea was not made knowingly and intelligently." Id. at ¶ 14.
In a pro se motion for reconsideration of release pending trial, defendant asserts he was suffering from mental illness that had not been treated at the time of the altercation, he was reacting in a defensive manner, protecting his family and was not the initiator or aggressor. Defendant's pro se Motion for Release (Doc. No. 53) at 10. In a pro se response to the government's opposition to his motion to withdraw plea defendant reiterates in great detail the synopsis highlighted by counsel and recounted above. He also claims ineffectiveness on behalf of Attorney Suhgrue for failing to develop the affirmative defenses of mental defect, justification, coercion, duress. See generally Defendant's pro se Reply Brief in Support of Motion to Withdraw Plea (Doc. No. 58). He relies on a claimed condition of mental illness that existed prior to, during and after the incident giving rise to the charge in the indictment. Id. at 2. After his plea he became aware of the ability to plead an insanity defense and asserts that at the time of the incident he "was under unlawful and present imminent threat of death or serious bodily injury to self and loved ones, had not recklessly or negligently placed himself in a situation where he would be forced to engage in criminal conduct [and he] had no reasonable, legal alternative to violating the law and avoid the threatened harm to himself and loved ones." Id. at 4-5. And he asserts that a duress defense is available because the jury could find he lacked a "reasonable opportunity to escape the threatened harm [of immediate death or serious bodily injury]." Id. at 5.
The government opposes defendant's motion. It contends that the record demonstrates that the asserted affirmative defenses are not available in light of the events captured on the McDonald's surveillance video and the facts otherwise admitted by defendant during his change of plea hearing. Thus, from its perspective there is no fair and just reason to permit defendant to withdraw his guilty plea.
Rule 32(e), Fed.R.Crim.P., provides that "the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason." The rule establishes a privilege to seek the withdrawal of a guilty plea. There is no absolute right to withdraw a guilty plea entered after the full protections of Rule 11 have been afforded to the defendant. United States v. Vallejo, ...