United States District Court, E.D. Pennsylvania
ANITA B. BRODY, J.
Defendant Jason Rose’s (“Rose”) filed an amended motion to withdraw his guilty plea. See Am. Mot. to Withdraw Plea, ECF No. 153. I will deny Rose’s motion.
I. FINDINGS OF FACT
On October 9, 2002, Jason Rose and three co-defendants were indicted by a grand jury on charges of conspiracy to possess with intent to distribute more than 500 grams of cocaine, and possession with intent to distribute more than 500 grams of cocaine. See Indictment, ECF No. 1. Rose’s co-defendants named in the indictment were arrested, and pled guilty in 2004. See Raphael Albert Henry Guilty Plea Agreement, ECF No. 27; Tyrone Sawyer Guilty Plea Agreement, ECF No. 29; Phillip Mack Guilty Plea Agreement, ECF No. 34. Law enforcement authorities, however, could not locate Rose. Rose was twice declared a fugitive, and was not arrested until March 11, 2014. See Reports of Speedy Trial Act Delay, ECF Nos. 3, 55. On April 23, 2014, after his arraignment, Rose retained attorney Michael Engle (“Engle”) as defense counsel.
On October 15, 2014, Rose pled guilty and is now seeking to withdraw his plea. On July 16, 2015, I held an evidentiary hearing on Rose’s motion to withdraw his plea. Both Rose and Engle testified. I make the following findings of fact:
Rose initially informed Engle that he was not interested in pleading guilty, and the parties began to prepare for trial. In the course of this preparation, Engle requested and received discovery from the Government about the case against Rose. On motion of the government, and for good cause shown, I issued a protective order. Pursuant to that order, Engle refrained from copying, reproducing, and disseminating the discovery. He was specifically forbidden from providing copies to Rose. See Protective Order for Discovery, ECF No. 116.
During the course of his representation of Rose, Engle identified two prior convictions he believed the Government could use to enhance Rose’s sentence if Rose were found guilty. These were a 1996 state marijuana conviction, and a 1998 state criminal mischief and attempted theft conviction. Rose was adamant that the 1998 conviction pertained to a different individual and that it could not be used against him. Also, the Government had indicted Rose in 2002-12 years before Rose’s arrest and pretrial preparations-but it had not filed the information required to enhance his sentence for either state conviction under 21 U.S.C. § 851.
On October 13, 2014, one day before trial was set to begin, Engle approached the Government and relayed that Rose would plead guilty to a 60 month prison term pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). Rose’s offer initiated the plea process with the Government; up to that point the Government had not engaged in plea negotiations nor offered Rose a plea deal.
On October 14, 2014, the parties appeared in court for a change of plea hearing. Notwithstanding the fact that Rose had initiated the plea process and proposed the terms of his guilty plea, Rose expressed concern that he may have not had enough time to make an informed decision. See Tr. of Change of Plea held on Oct. 14, 2014, at 6:6-6:20, 12:23-13:8, ECF No. 152. To address this, I continued the change of plea hearing to allow Rose additional time to weigh his options. Id. at 14:19. When I inquired, Rose indicated that a one-day extension would be sufficient time to make an informed decision. Id. at 13:11.
On October 15, 2014, I reconvened the change of plea hearing, and Rose pled guilty. At the change of plea hearing, Rose certified that Engle had fully explained his trial rights and defenses. See Tr. of Change of Plea held on Oct. 15, 2014, at 6:4, ECF No. 151. Rose also certified that he had had enough time to talk with counsel, and certified that he was satisfied with Engle’s assistance. Id. at 6:12. To establish the factual basis for Rose’s plea, the Government laid out, in detail, the coast-to-coast drug trafficking conspiracy. The Government also described the events in September 2002 involving the transportation of 4.9 kilograms of cocaine from Los Angeles to Philadelphia that led to the arrest of Rose’s codefendants, and eventually, Rose himself. See Id. at 27:25-33:9. Although Rose took issue with certain facts in the Government’s rendition, he admitted that he was involved in the conspiracy and received 4.9 kilograms of cocaine in September 2002. See Id. at 34:15-34:17. Rose admitted that his conduct satisfied the elements of the offenses with which he was charged. See Id. at 33:12-33:25.
After entering his plea, Rose discharged Engle and retained Warren R. Hamilton (“Hamilton”) as counsel. See Notice of Appearance of Warren R. Hamilton, ECF No. 144; Order Granting Michael Engle’s Mot. to Withdraw, ECF No. 148. On January 20, 2015, Hamilton filed Rose’s request to withdraw his guilty plea. See Mot. to Withdraw Plea, ECF No. 145. On June 25, 2015, Rose amended his motion to include additional arguments. See Am. Mot. to Withdraw Plea.
II. LEGAL STANDARD
Federal Rule of Criminal Procedure 11 provides that a defendant may withdraw a guilty plea after the court accepts the plea, but before the defendant is sentenced, if “the defendant can show a fair and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). In determining whether a fair and just reason exists, a court looks to: “(1) whether the defendant asserts [his] innocence; (2) whether the government would be prejudiced by the withdrawal; and (3) the strength of the defendant's reason to withdraw the plea.” United States v. Brown, 250 F.3d 811, 815 (3d Cir. 2001). Demonstrating a fair and just reason requires the defendant to overcome a “substantial” burden. United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003). “A shift in defense tactics, a change of mind, or the fear of punishment are not ...