UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4898
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHARLES WARD, a/k/a Chuck,
Defendant – Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:09-cr-00032-JPB-DJJ-1)
Submitted: April 27, 2010 Decided: May 25, 2010
Before SHEDD, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charles T. Berry, Fairmont, West Virginia, for Appellant. Betsy
C. Jividen, Acting United States Attorney, Thomas O. Mucklow,
Assistant United States Attorney, Martinsburg, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Ward was charged in a six-count indictment
with various felony drug offenses. Pursuant to a plea
agreement, Ward pled guilty to Count Three of the indictment,
which charged him with aiding and abetting in the distribution
of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2006)
and 18 U.S.C. § 2 (2006), in exchange for dismissal of all other
counts. Ward was sentenced to 200 months in prison. He now
appeals, arguing that his trial counsel was ineffective. For
the reasons that follow, we affirm.
On appeal, Ward argues that he was denied the
effective assistance of counsel at his plea hearing and
subsequent sentencing hearing. Specifically, Ward argues that
counsel was ineffective for failing “to fully and competently
inform Ward of options to accepting a conditional plea agreement
which contained a stipulation regarding relevant drug conduct
and which contained a provision that required Ward to pay the
$100.00 special assessment within forty (40) days following
entry of his plea.”
The Government argues that Ward’s appeal should be
dismissed because he validly waived his right to appeal in his
plea agreement. However, the Government also acknowledges that
even a valid appellate waiver would not prevent Ward from
appealing on the basis of an alleged violation of his Sixth
2
Amendment right to counsel in proceedings following the guilty
plea. See United States v. Attar, 38 F.3d 727, 732-33 (4th Cir.
1994) (finding that, where defendants sought “to challenge their
sentences on the ground that the proceedings following entry of
the guilty plea — including both the sentencing hearing itself
and the presentation of the motion to withdraw their pleas —
were conducted in violation of their Sixth Amendment right to
counsel,” “the general waiver of appeal rights contained in this
plea agreement” could not be “construed as a waiver of the right
to challenge their sentences on that ground”). Therefore, the
ineffective assistance claims raised by Ward are not barred by
his appellate waiver.
“A claim of ineffective assistance of counsel should
be raised by a habeas corpus motion under 28 U.S.C. § 2255
[(West Supp. 2009)] in the district court and not on direct
appeal, unless it conclusively appears from the record that
defense counsel did not provide effective representation.”
United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999)
(internal quotation marks and alterations omitted). To
demonstrate ineffective assistance, a defendant must show that
his “counsel’s representation fell below an objective standard
of reasonableness,” and that the error was “prejudicial to the
defense” such that “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
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proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 688, 692, 694 (1984). In the context
of a plea agreement, where a defendant claims ineffective
assistance, the prejudice prong is satisfied where the defendant
shows that “there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Hill v. Lockhart, 474 U.S.
52, 59 (1985).
In his first claim, Ward argues that counsel “ignored
the provision in the Plea Agreement which required Ward to pay
the $100.00 special assessment within forty (40) days of entry
of his guilty plea,” and “[i]nstead, counsel depended upon a
conversation that he had with the Government, in which counsel
was informed that Ward would receive the third point reduction
for timely acceptance.” Ward argues that although he did not
have the financial means to pay the special assessment, he “may
well have been able to timely marshal the money to satisfy the
assessment from friends and family members.” He insists that
“[t]here is a reasonable probability that the result of the
proceeding would have been different had Ward been properly
advised regarding the necessity to timely pay the special
assessment.” In the alternative, Ward claims that counsel
should not have advised him to enter into the plea agreement
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requiring him to pay the special assessment within forty days
because counsel knew that Ward did not have the ability to pay.
Despite Ward’s contentions, his counsel’s alleged
ineffectiveness regarding the special assessment is not apparent
on the face of the record. First, Ward himself acknowledges
that he did not have the money to pay the special assessment due
to his indigency, and states on appeal only that he “may well
have been able to timely marshal the money to satisfy the
assessment from friends and family members.” Further, Ward does
not assert that he would not have taken the plea had counsel
properly informed him about the special assessment fee. Thus,
even assuming counsel’s actions could be considered
unreasonable, there is nothing in the record to demonstrate that
Ward was prejudiced by counsel’s alleged ineffectiveness. *
Ward also asserts that, in the alternative, counsel
should have never advised him to take the plea, because he knew
Ward was indigent and could not afford the special assessment.
However, the record shows that in exchange for taking the plea,
*
Additionally, the record is replete with instances in
which Ward and his counsel were reminded that only upon payment
of the special assessment and compliance with all other terms of
the plea agreement would the Government move for the additional
one-level reduction. As noted, this information was conveyed by
the Government and the court during Ward’s plea, it was
contained within the PSR, and it was expressly noted in the plea
agreement.
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Ward had all five remaining counts in the indictment dismissed
and he received a two-level reduction for acceptance of
responsibility. According counsel the deference to which he is
entitled under Strickland, the record does not demonstrate that
counsel’s advice to take the plea fell below an objective
standard of reasonableness. See Strickland, 466 U.S. at 689
(noting that “a court must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome
the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy” (internal
quotation marks omitted)). Accordingly, because the record does
not conclusively demonstrate that counsel was ineffective, we
conclude that Ward’s claim is not properly before this court on
appeal.
In his second claim, Ward asserts that “counsel failed
to inform Ward that he could enter a guilty plea and place the
burden of proving relevant conduct upon the Government.” Ward
now claims that if counsel had informed him that, in addition to
going to trial or accepting the plea agreement offered by the
Government, he had this third option, “he would not have entered
into a plea agreement which stipulated that large quantity of
relevant conduct.”
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The record shows that, at the sentencing hearing, Ward
stated to the court that counsel “never advised me that I could
have [a] relevant conduct hearing about” the drug quantity for
which he was responsible. However, there was no response from
counsel on that matter at the hearing, and the record does not
contain any affidavit or response from trial counsel indicating
what he recalls telling Ward regarding relevant conduct and, if
he failed to discuss it with Ward, why he chose not to disclose
that information. Thus, any conclusion by this court regarding
counsel’s discussions with Ward on the issue of relevant conduct
would be premised on surmise or speculation, and we decline on
direct appeal to consider Ward’s arguments regarding his trial
counsel’s ineffective assistance. See United States v. Allen,
491 F.3d 178, 191-92 (4th Cir. 2007).
Accordingly, we affirm Ward’s conviction and sentence.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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