United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Defendant Artavius Brown's ("Defendant" or "Brown") Motion to Withdraw Guilty Plea . Defendant claims his decision to plead guilty on March 19, 2014, was without the benefit of viewing various security surveillance videotapes of the armed bank robbery for which he had been indicted, or of robberies that occurred in several Family Dollar or General Dollar stores (the "Retail Stores") that were committed before and after the bank robbery for which he was indicted. Defendant thus claims he was not given a realistic evaluation of his options in this prosecution before pleading guilty.
Defendant and his co-defendant Ayron Collins were indicted on August 7, 2013. They were charged with one count of conspiracy to commit a Hobbs Act bank robbery in violation of 18 U.S.C. § 1951(a) (Count One), one count of Hobbs Act bank robbery, in violation of 18 U.S.C. § 2113(a) and (d) (Count Two) and one count of using and carrying a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii).
On December 16, 2013, Defendant Collins pled guilty to the conspiracy count of the Indictment. At some date, apparently after indictment, the Government advised Brown that he also was a suspect in robberies of the Retail Stores.
Brown's trial on the counts in the Indictment was scheduled to begin on January 27, 2014. Prior to this trial date, the parties requested that the trial be continued so they could engage in plea negotiations. The Court reset the trial for March 24, 2014.
On March 19, 2014, shortly before the scheduled March 24, 2014, trial, Defendant Brown entered his plea of guilty to a criminal Information charging Defendant with two counts of brandishing, carrying and using a firearm during two different robberies, including the bank named in the Indictment and one of the Retail Stores, in violation of 18 U.S.C. § 924(c)(1)(A)(ii).
The hearing, at which Defendant pled to the Information counts, lasted almost fifty (50) minutes. At it, the Court advised Defendant of his rights under the United States Constitution and the laws of the United States that Defendant was required to waive. Defendant waived the rights of which he was advised, including his right to a jury trial. The Court assured itself that Defendant understood the charges to which he was pleading guilty and explained to Brown in detail the sentencing process, the maximum punishment the Defendant faced, and that the Court could, if it decided it was appropriate, impose the maximum authorized punishment of life imprisonment. Defendant stated he understood the maximum punishment possible. Defendant was advised of the practical realities of a sentence of incarceration and supervised release, and the other consequences of pleading guilty. Defendant stated that he understood all of the terms of the plea agreement into which Defendant had entered.
The evidence of Defendant=s use of a firearm in the bank and Retail Store robberies was described in detail. Defendant admitted he committed the robberies, that there were security surveillance videotapes of both robberies which he committed, that he brandished a firearm when committing the robberies, and that he was guilty of both offenses. Transcript of Plea Hearing on March 19, 2014 ("Plea T.") . The Court accepted Defendant's plea to the counts in the Information and found Defendant guilty of both offenses. Defendant's sentencing was set for June 5, 2014.
On June 5, 2014, the Court received from Defendant a letter dated June 2, 2014. In it, Defendant requested to withdraw his plea and requested appointment of new counsel. In his letter he stated:
My appointed counsel misadvised me of all consequences as it relates to my case and did not give me all of the options available. Furthermore, without this ill advised (sic) information, I would not have plead guilty.
Accordingly, I'm requesting that you afford me at the very least a hearing on the above and appoint counsel to represent me in such.
The letter is attached as Exhibit A to this Order.
The Court converted the scheduled June 5, 2014, sentencing hearing to a hearing on Defendant's request for new counsel, Defendant's trial counsel's request to withdraw from his representation of Defendant, and Defendant's Motion to Withdraw Plea (the "Motion to Withdraw") . At the June 5, 2014 hearing, the Court allowed counsel to withdraw and directed that new counsel be appointed. A new appointment was made and Defendant's successor counsel filed Defendant's Brief in Support of Motion to Withdraw Guilty Plea (Br. Supp. Mot.") . In it, Defendant stated he was not shown surveillance videotapes and, as a result, he did not receive the close advice of counsel. He requested an evidentiary hearing on the Motion to Withdraw or, alternatively, that Defendant be allowed to withdraw his plea. Id. at 11. The Government did not oppose the request for an evidentiary hearing. Government's Response to Defendant's Motion to Withdraw Guilty Plea [13 at 3-4]. An evidentiary hearing was conducted on August 11, 2014 .
Rule 11(d)(2)(B) of the Federal Rules of Criminal Procedure provides that a defendant may withdraw a plea of guilty after the court accepts the plea but before sentencing if "the defendant can show a fair and just reason for requesting the withdrawal.@ Fed. R. Crim. P. 11(d)(2)(B). "A pre-sentence motion to withdraw is to be liberally construed, but there is no absolute right to have a guilty plea withdrawn." United States v. Buckles , 843 F.2d 469, 471 (11th Cir. 1998). It is a defendant's burden to establish a fair and just reason for withdrawal. See United States v. Cesal , 391 F.3d 1172, 1179 (11th Cir. 2004); vacated on other grounds at 345 U.S. 1101 (2005), reinstated at 2005 WL 1635303 (11th Cir. July 13, 2005). See also
"To determine whether a defendant has given a fair and just reason for withdrawal, the district court examines the totality of the circumstances' [surrounding the plea] including: (1) whether the close assistance of counsel was available to defendant in pleading guilty; (2) whether the plea was knowing and voluntary; (3) whether judicial resources would be conserved; and (4) whether the government would be prejudiced if the defendant were allowed to withdraw his plea'" (the "Withdrawal Factors"). Id . citing United States v. Freixas , 332 F.3d 1314, 1318 (11th Cir. 2003).
The district court also can consider "the defendant's admission of factual guilt at the Rule 11 hearing and the timing of the motion to withdraw." United States v. Rogers , 848 F.2d 166, 168 (11th Cir. 1988). The Atiming of a defendant=s attempted plea withdrawal is highly probative of motive, [so] close scrutiny of the chronology is important in adjudicating whether retraction is fair and just.@ United States v. Doyle , 981 F.2d 591, 595 (1st Cir. 1992). See also United States v. Parrilla-Tirado , 22 F.3d 368, 373 (1st Cir. 1994) (delayed requests disfavored); United States v. Michaelson , 552 F.2d 472, 476 (2d Cir. 1977) (a defendant=s change of heart after viewing presentence report insufficient reason to withdraw). Whether to allow a defendant to withdraw a guilty plea is left to the sound discretion of the trial judge. Cesal , 391 F.3d at 1179. The Court now considers the totality of the circumstances in deciding whether to allow Defendant's plea to be withdrawn.
The Court notes first that Defendant concedes the Second Withdrawal Factor, admitting that his plea was knowing and voluntary. Defendant also noted that the "third [Withdrawal] [F]actor, conservation of judicial resources, is a factor to consider that may weigh in favor of denying the motion". Br. Supp. Mot. at 9. Defendant contends that the close assistance of counsel and prejudice to the government (Withdrawal Factors One and Four) are the central factors at issue here and the ones on which Defendant requested that an evidentiary hearing focus. Id. at ...