United States v. Dorothy Robinson , 427 F. App'x 163 ( 2011 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 10-2832
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UNITED STATES OF AMERICA
v.
DOROTHY ROBINSON
a/k/a “Mae-Mae”
a/k/a Dorothy Johnson
Dorothy Robinson,
Appellant
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On Appeal from the United States District Court
For the Middle District of Pennsylvania
(D.C. Criminal Action No. 4:07-cr-00389-010)
District Judge: Honorable Thomas I. Vanaskie
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Submitted Under Third Circuit LAR 34.1(a)
April 26, 2011
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Before: SLOVITER and GREENAWAY, JR., Circuit Judges, and POLLAK, District
Judge*
(Opinion filed May 11, 2011)
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OPINION
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*
Honorable Louis H. Pollak, Senior Judge of the United States District Court for the
Eastern District of Pennsylvania, sitting by designation.
POLLAK, District Judge
In this appeal, Dorothy Robinson challenges the District Court’s denial of her
motion to withdraw her guilty plea. For the reasons that follow, we affirm the judgment
of the District Court.
I
Because we write primarily for the parties, who are familiar with this case, we
address only the facts and procedural history relevant to resolution of the issues raised in
this appeal.
On September 27, 2007, Robinson was indicted, along with 13 others, in a 26-
count indictment. The indictment charged Robinson and the others with engaging in a
conspiracy to distribute over 500 grams of cocaine and crack cocaine within 1,000 feet of
a protected zone. Robinson was also specifically charged with possession of crack
cocaine with intent to distribute within 1,000 feet of public housing. A third superseding
indictment was returned on August 14, 2008, and on September 4, 2008, Robinson pled
not guilty to the charges.
The indictments stemmed in part from an August 1, 2007, “controlled buy” in
which a government informant, Lewis “Guy” Tedesco, went to a residence to purchase
drugs from Robinson. This residence was within 1,000 feet of a public housing project.
Tedesco gave Robinson $200, and Robinson provided Tedesco with a plastic bag
containing crack cocaine. Robinson ushered Tedesco out of the residence. Tedesco then
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left and met with state troopers to turn over the purchased drugs. Some of these events
were captured on police videotape.
Robinson opted for a bench trial, which began on September 1, 2009. Numerous
witnesses testified on that first day, including Tedesco. The witnesses established,
among other things, that Robinson had sold drugs to Tedesco on August 1, 2007. The
police videotape was authenticated and shown at trial. At the end of the first day of trial,
Robinson asked to address the court. She complained that her court-appointed attorney
“totally ha[d] ignored [her],” was “falling asleep,” and was “refusing to hear anything
that [she was] saying.”1 The court disagreed, noting that her attorney had paid “close
attention” to the testimony and concluding that there was no basis on which to find her
counsel inadequate. Out of an abundance of caution, however, the court permitted
Robinson to conduct her own cross-examination after her counsel finished his questions
for all later witnesses.
On September 3, 2009, the third day of trial, Robinson renewed her complaints
about her attorney. The court granted a recess and allowed Robinson to confer with her
husband and her attorney in a conference room. Robinson returned a few hours later,
indicating that she wished to enter a plea agreement and plead guilty to one count of the
third superseding indictment. In accordance with a written plea agreement and following
an extensive colloquy with the District Court, Robinson then pled guilty to aiding and
1
The trial attorney, Joseph O’Brien, was her fourth attorney in the District Court. All
references to Robinson’s attorney herein, unless otherwise noted, refer to Mr. O’Brien.
Robinson had terminated two previous attorneys, and a third had to leave after receiving
an offer to work in a District Attorney’s office. Robinson’s current counsel on appeal
was her fifth and final attorney in the District Court.
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abetting the distribution of crack cocaine within 1,000 feet of public housing in violation
of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) & 860(a) for her role in the sale of drugs to
Tedesco. In exchange for the guilty plea, the plea agreement called for the government to
drop all other charges against Robinson and agree that a 216-month sentence was
appropriate.
The next day, September 4, 2009, Robinson submitted a handwritten letter to the
District Court seeking to withdraw her guilty plea. This was reiterated in a typewritten
letter on September 6, 2009. The District Court appointed present counsel to represent
Robinson, and a formal motion to withdraw her guilty plea was filed on January 19,
2010. A hearing was held on February 12, 2010, and the District Court denied the
motion on June 2, 2010.
Robinson was ultimately sentenced in accordance with the plea agreement to a
term of 216 months’ imprisonment followed by six years of supervised release, a $1,000
fine, and a $100 special assessment. This timely appeal followed.2
II
Robinson now appeals the District Court’s denial of her motion to withdraw her
guilty plea.3 We review a district court’s denial of a motion to withdraw a guilty plea
before sentencing for abuse of discretion. United States v. Jones, 336 F.3d 245, 252 (3d
Cir. 2003).
2
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This court has
jurisdiction under 28 U.S.C. § 1291.
3
Robinson does not, however, appeal the sentence that the District Court imposed.
4
“Once a court accepts a defendant’s guilty plea, the defendant is not entitled to
withdraw that plea simply at h[er] whim.” Id. Robinson must have a “fair and just
reason” for withdrawing her plea of guilty, and she bears the “substantial” burden of
demonstrating a “fair and just reason.” Id. In determining whether a defendant has met
her burden, “[a] district court must consider three factors when evaluating a motion to
withdraw a guilty plea: (1) whether the defendant asserts h[er] innocence; (2) the strength
of defendant’s reasons for withdrawing the plea; and (3) whether the government would
be prejudiced by the withdrawal.” Id. We examine each factor in turn.
A
With respect to the first factor, assertion of innocence, “[b]ald assertions of
innocence are insufficient to permit a defendant to withdraw h[er] guilty plea.” Id. A
defendant who has pled guilty must do more than simply reassert her innocence—it must
be a “meaningful[] reassert[ion].” Id. In other words, a defendant must “give sufficient
reasons to explain why contradictory positions were taken before the district court and
why permission should be given to withdraw the guilty plea and reclaim the right to
trial.” Id. (internal quotation marks omitted). It is not enough simply to proclaim one’s
innocence without “buttress[ing]” the assertion “by facts in the record.” Id.Here, Robinson did not “meaningfully” reassert her innocence. She has adduced
no evidence that she did not commit the offense to which she voluntarily and intelligently
pled guilty. At the change of plea hearing, Robinson acknowledged that she had signed
the plea agreement, reviewed it with her attorney, and was satisfied that she understood
the terms and conditions of the plea agreement. Robinson, as well as her counsel, also
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indicated that the government’s summary of the key terms of the plea agreement was
accurate. Moreover, the District Court took pains to explain other issues in the plea
agreement each time Robinson asked a question.
The government then provided the factual basis for Robinson’s anticipated guilty
plea. The AUSA: (1) recounted the testimony of Tedesco, who testified that he had
purchased crack cocaine from Robinson; (2) recalled the videotape played at trial which
showed Tedesco leaving the place of sale with Robinson; (3) recounted the testimony of a
DEA agent who witnessed the circumstances around the controlled buy; (4) proffered the
anticipated testimony of an official who would establish that the point of sale was within
1,000 feet of public housing; and (5) proffered the anticipated testimony of a DEA
chemist who would establish that the substance purchased during the controlled buy and
turned over to authorities was cocaine base.
The District Court asked Robinson if the government’s recitation of facts was
accurate, to which she replied “Yes, sir.” Robinson replied “Yes, sir” to the question of
whether the “government could prove beyond a reasonable doubt that [she] participated
in the distribution of crack cocaine to Guy Tedesco on August 1, 2007.” And Robinson
replied “Yes, sir” when asked whether it was her voluntary decision to plead guilty to the
distribution charge. Next, after acknowledging the rights she was giving up by pleading
guilty, her plea to count 21 of the third superseding indictment was recorded as “Guilty”
and confirmed with a signed document. Finally, when asked if she had any other
questions, she responded “No, sir.” These “solemn declarations in open court carry a
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strong presumption of verity,” Blackledge v. Alliston, 431 U.S. 63, 74 (1977), and
Robinson’s bald assertions of innocence after the fact do not rebut that presumption.
The only support Robinson offers for her motion is her assertion that other
witnesses (her co-defendant sons and boyfriend (her husband is not a defendant)) would
be available to testify that she did not distribute crack cocaine to anyone, and state
officers/employees would testify that they never saw evidence of drug distribution during
their visitations. These potential witnesses, however, do not transform her bald assertion
of innocence into a meaningful one. These witnesses were available prior to the guilty
plea, and their anticipated testimony would not refute the corroborated evidence of the
“controlled buy” already presented to the court and admitted as true by Robinson during
the change of plea hearing. Likewise, the fact that Robinson “may elect to testify at her
trial . . . in direct contradiction to the government’s evidence” does not make her
assertion of innocence meaningful when (a) that right was always available to her, and
(b) it directly contradicts her own solemn declarations in open court.
Robinson has not given “sufficient reasons to explain [the] contradictory
positions” taken, and has not “buttressed” the assertion “by facts in the record.” Jones,
336 F.3d at 252. Because Robinson has not meaningfully reasserted her innocence, this
factor weighs against withdrawal of the guilty plea.
B
With respect to the second factor, the strength of Robinson’s reasons for
withdrawing the plea, Robinson claims that she was “increasingly overwhelmed during
her trial” and that family pressure combined with a “completely deteriorated relationship
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with trial counsel” warrants withdrawal. We are not persuaded. “A shift in defense
tactics, a change of mind, or the fear of punishment are not adequate reasons to impose
on the government the expense, difficulty, and risk of trying a defendant who has already
acknowledged h[er] guilt by pleading guilty.” United States v. Brown, 250 F.3d 811, 815
(3d Cir. 2001) (internal quotation marks omitted). Robinson’s reasons here amount to
little more than a change of heart insufficient to warrant withdrawal of her voluntary and
intelligent guilty plea.
As a preliminary matter, family pressure to plead guilty is not a sufficient basis for
granting leave to withdraw a guilty plea. See, e.g., United States v. Pellerito, 878 F.2d
1535, 1541 (1st Cir. 1989) (holding that family pressure, though “probative of an
accused’s motivation for pleading guilty, . . . does not necessarily show coercion, duress
or involuntariness” (emphasis in original)); United States ex rel. Brown v. LaVallee, 424
F.2d 457, 461 (2d Cir. 1970) (concluding that pressure from defendant’s lawyers and
mother to plead guilty was not coercive, but rather “sound advice”). Criminal trials are
always stressful, but the stress inherent in a criminal trial does not provide a strong reason
for withdrawing a guilty plea. Here, the District Court engaged in an extensive colloquy
with Robinson before satisfying itself that, notwithstanding the stress of trial, her plea
was knowing, voluntary, and supported by an independent basis in fact for each of the
essential elements of the crime to which Robinson pled guilty.
Robinson’s primary reason for withdrawing her plea is her claim of a “completely
deteriorated relationship with trial counsel.” Robinson does not, however, go as far as to
assert ineffective assistance of counsel. We disagree that this is a strong reason. First,
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our review of the trial record shows that her counsel was more than adequate, and there is
no justification on the basis of counsel’s performance to warrant withdrawal of the plea.
Second, whatever concerns Robinson had about counsel were clearly articulated to the
District Court prior to the guilty plea, and the District Court went out of its way to ensure
that Robinson was adequately represented. Third, to the extent that Robinson claims that
“she had no alternative but to enter a guilty plea without a factual foundation,” her claim
is based on false premises. She had an alternative—she could have pursued, and indeed,
up to that point did pursue, a criminal trial. Moreover, there was indeed a factual
foundation for her plea in the form of testimony and video footage establishing her
culpability on the drug charge to which she pled guilty, and she agreed on the record in
open court that the government could prove all of the elements of the offense beyond a
reasonable doubt.
In the time between Robinson’s plea and her motion to withdraw, nothing changed
except that she changed her mind and decided to revisit her defense. In sum, Robinson
has not set forth “strong reasons” for withdrawal, and this factor also weighs against
withdrawal of the guilty plea.
C
The third factor, prejudice to the government, is not reached when “a defendant
has failed to demonstrate that the other factors support a withdrawal of a plea.” Jones,
336 F.3d at 255. Because we conclude that Robinson did not meaningfully reassert her
innocence or provide strong reasons for withdrawal of the guilty plea, we do not address
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the District Court’s conclusion that the government would have been prejudiced by
withdrawal of the guilty plea.
III
Robinson has not carried her “substantial” burden of demonstrating a “fair and just
reason” for withdrawing her plea, and thus, the District Court did not abuse its discretion
in denying her motion. We affirm the judgment of the District Court.
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