REL:09/26/2014
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SUPREME COURT OF ALABAMA
SPECIAL TERM, 2014
____________________
1121121
____________________
Ex parte Ronald Eugene Hollander, Jr.
PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS
(In re: Ronald Eugene Hollander, Jr.
v.
State of Alabama)
(Lauderdale Circuit Court, CC-12-350;
Court of Criminal Appeals, CR-12-0297)
PER CURIAM.
WRIT QUASHED. NO OPINION.
1121121
Stuart, Bolin, Parker, Murdock, Shaw, Main, and Wise,
JJ., concur.
Moore, C.J., and Bryan, J., dissent.
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MOORE, Chief Justice (dissenting).
The Lauderdale Circuit Court denied the motion filed by
Ronald Eugene Hollander, Jr., to withdraw his guilty plea to
attempted first-degree assault. The Court of Criminal Appeals
affirmed the trial court's denial by an unpublished
memorandum. Hollander v. State (No. CR-12-0297, May 24, 2013),
___ So. 3d ___ (Ala. Crim. App. 2013) (table). Because I
believe that Hollander has satisfied the legal standard for
the withdrawal of a guilty plea and that the result in this
case works an injustice, I dissent.
I. Facts and Procedural History
The statement of facts attached to the criminal complaint
alleges that on January 7, 2012, Chris Weldon, a City of
Florence police officer, received information that an
individual was acting suspiciously in a parking lot in
Florence.1 Arriving at the scene, Weldon observed an
individual looking into the window of a vehicle. As Weldon
1
The complaint does not set forth the factual basis upon
which the allegations against Hollander are based. The
statement of facts attached to the complaint is unsigned and
unsworn, contrary to the requirements of § 15-7-2, Ala. Code
1975. Although the statement of facts does not indicate which
police officer witnessed the alleged crimes, the grand jury's
indictment identifies the officer as Chris Weldon.
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approached, the individual got into a different vehicle.
Weldon then spoke with the individual, who identified himself
as Ronald Hollander. The officer detected an odor of paint
coming from the vehicle and observed that Hollander had a can
of gold spray paint and a plastic bag. When Hollander started
his engine, Weldon told him to turn it off, but Hollander
instead drove away. Weldon pursued Hollander in his patrol
car.
The statement of facts continues:
"Hollander turned into the Med Plus parking
lot[,] which dead ends. Hollander turned his vehicle
around and accelerated towards Officer's vehicle[,]
striking it in the front. Hollander then sideswiped
the officer's vehicle[,] causing more damage to the
officer's vehicle. Hollander then drove through
Crocodile Ed's parking lot in a reckless manor
[sic][,] which endangered patrons and property. He
then ran two stop signs and exited the parking lot
West bound [sic] on Mal[l] Road. While exiting the
parking lot Hollander lost control[,] almost
striking several vehicles at the intersection of
Mall Rd. and Cloyd Blvd. He then accelerated to over
65 MPH (twice the speed limit). Hollander then
turned West bound [sic] on Florence Blvd. Other
officers joined the pursuit at this time. Hollander
made a right turn onto Arlington Blvd. He was
blocked by several patrol officers and he stopped at
Monticello Ave. and Arlington Blvd. He was taken
into custody without further incident. The time
f[r]ame is from 7:26 PM to 7:55 PM."
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A Lauderdale County grand jury indicted Hollander for four
misdemeanors and for the felony of attempted assault in the
first degree, which Hollander allegedly accomplished by
"ramming" Weldon's patrol car with his vehicle, in violation
of §§ 13A-4-2 and 13A-6-20, Ala. Code 1975.
Hollander's trial counsel filed a motion seeking
discovery of certain listed items, which the trial court
granted. On June 6, 2012, the State served on Hollander's
attorney a notice of discovery, indicating that a CD,
containing 30 pages of documents, and a DVD had been provided
to the defendant. In plea negotiations the State rejected
Hollander's request to attend a residential drug-treatment
program as an alternative to prison. Because Hollander had
three prior felonies, a conviction of attempted first-degree
assault, a Class C felony,2 would mandate a sentence under the
Habitual Felony Offender Act ("the HFOA"), § 13A-5-9, Ala.
Code 1975, of 15 years to 99 years or life imprisonment. The
State offered Hollander a plea agreement for a 15-year
sentence.
2
Although first-degree assault is a Class B felony, § 13A-
6-20(b), the offense is reduced to a Class C felony when
charged as an attempt. § 13A-4-2(d)(3), Ala. Code 1975.
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Hollander's attorney, seeking to avoid the severe
consequence of a fourth felony conviction for her client,
sought to convince the court to continue the case until
Hollander finished a long-term drug-treatment program. A
record of rehabilitation, she believed, could induce the State
to recommend a plea that would avoid a fourth felony
conviction. Although Hollander's case was assigned to Judge
Michael Jones, a different judge, Judge Gilbert Self, whom
Hollander's counsel considered sympathetic to residential
drug-treatment programs, was assigned to conduct the pretrial
and settlement conferences.
On August 9, 2012, during the pretrial conference before
Judge Self, Hollander's counsel argued the motion for in-
patient drug treatment.
"Judge, Mr. Hollander is a notorious paint
huffer. He has been huffing paint since, I think,
thirteen years old.[3]
"....
"I've represented Mr. Hollander for years,
Judge, on various matters. And as an officer of the
court, I can represent to you that I've never seen
Ronnie in this state of mind.
"....
3
At the time of the hearing, Hollander was 30 years old.
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"He has never come to me and said, 'Please get
me into treatment. I want to be clean and sober.' He
has done that now."
Counsel then explained her strategy:
"He is charged with a very serious offense, and
it is an offense that probably really doesn't need
to be tried. We are asking the Court to continue the
trial and allow this defendant to go to long-term
in-patient drug treatment.
"And frankly, Your Honor, I think if he does
that and completes it and is successful at it, I
think the State may be in a better position to
negotiate a settlement in this case.
"I am, I have never been optimistic about Ronnie
Hollander being clean and sober until this day. And
I am, and I would ask you under those facts and
circumstances to continue his trial and allow him to
go."
The Lauderdale County District Attorney was unimpressed.
Noting previous unfruitful attempts to work with Hollander, he
was "not agreeable to him avoiding prison by going to
treatment now" and was "opposed to him avoiding the
consequences for endangering the lives of law enforcement
while under the influence, by now, at this eleventh hour,
trying to go to treatment."
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Noting that he had discussed the matter with Judge Jones,
Judge Self denied the motion to continue the case pending drug
treatment.
"THE COURT: All right. I'm not going to continue
it. This is based on my conversation with Judge
Jones. This was Judge Jones's file before he left,
that was, you know --
"[Hollander's counsel]: I understand, Judge.
"THE COURT: You know, so if you all want to
discuss that with Judge Jones Tuesday, that is fine.
Okay. But as far as I'm concerned, we'll leave it
set for trial."
Judge Self reiterated: "So I'm going to deny the motion to
continue. It remains set for next week. And then let the chips
fall where they may. And you just need to take this up with
Judge Jones. It's Judge Jones's file."
Thus, trial now loomed for Hollander before Judge Jones
early in the following week. Seeking to avoid trial and a
subsequent imposition of sentence by Judge Jones, counsel
advised Hollander to reappear before Judge Self in a
continuation of the pretrial conference to plead guilty and
seek a lenient sentence. Counsel calculated that the potential
detriment of pleading guilty would be more than offset by
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having Judge Self, rather than Judge Jones, as the sentencing
judge.
On Friday, August 10, Hollander reappeared before Judge
Self to plead guilty to attempted first-degree assault, a
Class C felony, under an "open plea." Although the minimum
punishment under the HFOA was 15 years, trial judges have the
option under the Split Sentence Act, § 15-18-8, Ala. Code
1975, to split a sentence of 20 years or less into a
combination of time served in prison and on probation. The
prison portion of that sentence can be as little as three
years. § 15-18-8(a)(1), Ala. Code. 1975.4 Alternatively, the
trial judge may sentence the defendant to a rehabilitation
program of 90 to 180 days. Upon successful completion of the
program, the rest of the defendant's sentence may be suspended
and a period of probation ordered. § 15-18-8(a)(2), Ala. Code.
1975. Hollander thus entered an "open" plea in the hope that
Judge Self would agree to suspend or to split his sentence.5
4
The prison portion of a split sentence may itself be
suspended, and probation ordered. § 15-18-8(c), Ala. Code.
1975. See Ex parte McCormick, 932 So. 2d 124 (Ala. 2005).
5
Conviction of certain offenses disqualifies a defendant
from receiving a split sentence. However, the crime of
attempted assault to which Hollander pleaded guilty is not a
disqualifying offense.
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As his counsel stated: "[I]t's been explained to him over the
course of the last two days that he's pleading open, but the
minimum punishment is fifteen years, subject to suspension or
a split by this Court." The district attorney explained: "He
wants to appeal to the Court for something less than [15 years
in prison], that involves a drug treatment option. Hence, his
willingness to plead open."
Because the State opposed any sentence of less than 15
years in prison, Judge Self decided "to defer adjudication of
guilt and acceptance of the plea until I've had an opportunity
to look at the [presentencing] report. And given the two
opposing views, I'm going to need that report." He rescheduled
Hollander's sentencing for September 26. Up to this point,
Hollander's strategy of avoiding a trial before Judge Jones
and positioning himself to be sentenced by Judge Self had
succeeded. However, for reasons not fully set forth in the
record, Hollander's sentencing was rescheduled for September
27 before Judge Jones. This development suddenly confronted
Hollander with the ominous flip side of the open plea -- that
Judge Jones might sentence him to more than 15 years. He
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hastened to instruct his attorney to move to withdraw his
guilty plea.
Hollander's counsel, arguing for the withdrawal of the
guilty plea, candidly explained to Judge Jones why "I advised
my client at the time he entered his plea to enter an open,
best interest, guilty plea[6] in front of Judge Self":
"Your Honor, Judge Self took the plea and set this
matter for sentencing. At that time we fully
believed that Judge Self would hear this matter at
sentencing. I don't think it's any secret that Judge
Self typically views a request for drug treatment
more favorably than this court does, and Mr.
Hollander certainly needed to make a very strong
argument on that point."
Counsel then explained how this strategy was potentially about
to boomerang:
"Subsequent to the guilty plea this court changed
the way the system was working and reassigned cases
based on their original judge; that caused this
defendant to be reassigned to this court unbeknownst
to my client. That, in effect, de facto resulted in
me giving my client poor legal advice to enter into
an open plea."
6
A judge may order a split sentence if "satisfied that the
ends of justice and the best interests of the public as well
as the defendant will be served thereby." § 15-18-8(a), Ala.
Code 1975.
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As a further argument in support of withdrawing the
guilty plea, Hollander's counsel explained that she had
recently become aware of a police video of Hollander's arrest:
"[P]rior to the plea my client entered and
subsequent to the plea my client asked me more than
once if I had reviewed the video in this case. I
instructed him I had no video and assumed there was
no video because I did not have a video; however,
subsequent to the plea my client instructed me to
investigate and find why there was no video, that
all police cars have dash cam videos and why didn't
I have it. I did that, and yesterday I located two
DVDs in the district attorney's file that I
reviewed. With their permission I took those to my
office. One of them did, in fact, contain a dash cam
video that recorded the entire series of events as
they unfolded. Your Honor, if that video was ever
provided to me or my staff, either myself or my
staff misplaced it or lost it. Therefore it was
never provided. My client never had an opportunity
to review the video and I stand here before you
today stating that that video supports my client's
version of events much more than the State's version
of events. Therefore my client entered into a guilty
plea without his lawyer having all the facts and
without him having the opportunity to review all the
evidence ...."
(Emphasis added.)
Judge Jones denied Hollander's motion to withdraw his
guilty plea, adjudicated him guilty of attempted assault,
dismissed the remaining misdemeanor charges, and sentenced
Hollander as a habitual felony offender to 20 years in prison.
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On October 24, 2012, Hollander filed a postjudgment
motion to set aside his guilty plea. Forgoing argument about
the misadventure of the unexpected change of sentencing judge,
the motion relied completely on the belated discovery of the
police-chase video. Prior to entering a guilty plea, the
motion stated, Hollander had inquired of his attorney
"numerous times" as to why no "dash-cam" video was provided in
discovery. Counsel had told him that a video had not been
produced and therefore must not exist. Because of Hollander's
repeated requests about the video both before and after the
guilty plea, counsel finally inquired of the district
attorney's office and obtained a copy, which Hollander had yet
to view. The video, stated the motion, "painted a different
light on the facts of the case."
Counsel explained in the motion how not having the video
had skewed her advice to Hollander's disadvantage.
"Had the undersigned had the opportunity to
review the video tape prior to the plea, the legal
advice given to the defendant would have been far
different from the legal advice that the defendant
received. It was on the undersigned's advice that
the defendant pled guilty to the crime for which he
is charged."
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On November 2, 2012, the circuit court denied Hollander's
motion to withdraw his guilty plea. The Court of Criminal
Appeals affirmed Hollander's conviction for attempted first-
degree assault and his sentence as a habitual felony offender.
Hollander then petitioned this Court for a writ of certiorari,
which we granted and which this Court today quashes.
II. Standard of Review
"[W]hether a defendant should be allowed to withdraw a
plea of guilty is a matter solely within the discretion of the
trial court, whose decision will not be disturbed on appeal
absent a showing of abuse of discretion." Ex parte Heaton, 542
So. 2d 931, 933 (Ala. 1989).
III. Analysis
Before the Court of Criminal Appeals, Hollander argued
that his constitutional right to effective assistance of
counsel had been violated in two respects. First, trial
counsel advised Hollander to plead guilty in the expectation
that he would be sentenced by Judge Self. However, this
strategy failed, exposing Hollander to the hazard of an open
plea before Judge Jones. Second, trial counsel, despite
multiple requests by Hollander, failed to obtain and to review
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the dashboard-camera video that recorded the events leading to
his arrest.
"In order to prevail on a claim of ineffective assistance
of counsel, a defendant must show (1) that his counsel's
performance was deficient, and (2) that he was prejudiced by
the deficient performance." Burtram v. State, 733 So. 2d 921,
922 (Ala. Crim. App. 1998) (citing Strickland v. Washington,
466 U.S. 668, 687 (1984)). "In the context of guilty plea
proceedings, a petitioner must show that, but for his
counsel's errors, he would not have pleaded guilty but would
have insisted on proceeding to trial." Burtram, 733 So. 2d at
922 (citing Hill v. Lockhart, 474 U.S. 52, 58-59 (1985)). "The
court shall allow withdrawal of a plea of guilty when
necessary to correct a manifest injustice." Rule 14.4(e), Ala.
R. Crim. P.
A. The Strategy of Seeking Sentencing Before Judge Self
Simply because counsel's strategy to present Hollander
for sentencing before Judge Self did not succeed does not mean
counsel was ineffective. Otherwise, every convicted defendant
would have a viable ineffective-assistance claim. Instead, the
"petitioner must show that counsel's performance was so
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deficient as to fall below an objective standard of
reasonableness." Ex parte Baldwin, 456 So. 2d 129, 134 (Ala.
1984). Counsel's strategy, with which Hollander agreed, to
seek sentencing before Judge Self rather than a trial before
Judge Jones may have failed because of circumstances beyond
counsel's control, but it certainly was objectively
reasonable. As the Court of Criminal Appeals stated:
"Because counsel was familiar with Hollander's long-
standing struggles with substance abuse, it was not
unsound trial strategy for counsel to suggest a plea
agreement in front of a judge normally sympathetic
to requests for drug treatment. That trial counsel
did not predict the case would be transferred to
another judge cannot be considered deficient
performance ...."
Because Hollander has not met his burden of showing that
counsel's tactical decision to seek sentencing before Judge
Self was objectively unreasonable, we need not ask whether
that decision caused him prejudice. "[T]here is no reason for
a court deciding an ineffective assistance claim ... to
address both components of the inquiry if the defendant makes
an insufficient showing on one." Strickland, 466 U.S. at 697.
B. Counsel's Failure to Locate the Police Dashboard-Camera
Video
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The Court of Criminal Appeals, conceding that counsel's
failure to discover the dashboard-camera video in a timely
manner satisfied the first Strickland prong of deficient
performance, nonetheless held that the failure did not
prejudice Hollander's decision to plead guilty.
"Hollander's argument that his trial counsel's
assistance was deficient based on trial counsel's
failure to investigate whether there was an
exculpatory dashboard video satisfies the first
Strickland prong. Counsel admitted to either
misplacing the video if it had been sent, or failing
to look in the district attorney's file for the
video even after repeated requests by Hollander to
investigate the existence of the video. Because it
was unreasonable not to determine whether there was
a dashboard-camera video that contained potentially
exculpatory evidence, Hollander's trial counsel's
performance was arguably deficient under the first
Strickland prong. ...
"Although counsel's performance was arguably
deficient, Hollander has not demonstrated the
prejudice necessary to satisfy the second Strickland
prong."
The Court of Criminal Appeals stressed that, despite
counsel's statements that the video favored Hollander's
version of the events, its absence from the record means that
"there is nothing to indicate that the video would exonerate
Hollander." However, Hollander did not need to show that the
missing video would exonerate him, only "that there is a
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reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been
different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome."
Strickland, 466 U.S. at 694 (emphasis added). See Hill v.
Lockhart, 474 U.S. 52, 59 (1985) (stating that "whether the
error 'prejudiced' the defendant by causing him to plead
guilty rather than go to trial will depend on the likelihood
that discovery of the evidence would have led counsel to
change his recommendation as to the plea" (emphasis added));
Waters v. State, 963 So. 2d 693, 696 (Ala. Crim. App. 2006)
(holding that because the defendant "did not have complete
information upon which to base his decision" the trial court
should have afforded him the opportunity to withdraw his
guilty plea).
In this case we need not estimate the "likelihood" that
counsel would have changed her recommendation, because the
record indicates that she did and that she so informed the
trial court at the sentencing hearing. Further, when decisive
evidence, which the defendant sought diligently to discover,
but counsel negligently failed to acquire, suddenly surfaces
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after the entry of a guilty plea, counsel's failure to offer
that evidence into the record when moving for withdrawal of
the plea at the sentencing hearing further undermines
confidence in the outcome.
The Court of Criminal Appeals additionally reasoned that
the evidence against Hollander was so strong that even the
availability of the video would not have changed his decision
to plead guilty.
"The record indicates that Hollander was observed by
police officers huffing paint in the driver's seat
of an automobile. Hollander refused to turn off his
car when police ordered him to do so, and then led
police on a high-speed chase once officers tried to
apprehend him. During that high-speed chase
Hollander ended up in a dead-end alley, and in his
attempt to reverse course and escape, he rammed into
a police car. Hollander was charged with five
separate crimes for his actions, and the State had
numerous police witnesses that would testify to
Hollander's guilt for each of those crimes.
Considering the State's evidence, it is unlikely
that Hollander would not have agreed to plead guilty
given the evidence against him and the number of
crimes for which he was charged."
These assertions do not conform with the facts alleged in the
indictment and the criminal complaint. According to the
indictment, only Officer Chris Weldon witnessed Hollander
huffing paint, driving off, eluding Weldon, striking Weldon's
patrol car with his vehicle, recklessly driving through the
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parking lot of a mall, and leading Weldon in a police pursuit
that created a substantial risk of serious physical injury to
Weldon. According to the statement of facts attached to the
complaint, the other officers joined the pursuit only after
Hollander committed the alleged crimes. Considering that the
State's evidence of attempted first-degree assault hinges on
the testimony of only one witness, it is unlikely that
Hollander pleaded guilty on account of "numerous police
witnesses."
Likewise, the number of crimes charged is not conclusive
of Hollander's decision to plead guilty. Each of the four
misdemeanors carried a maximum sentence of 12 months. They
pale in comparison, even collectively, to the potential
sentence of 15 years to life for the attempted-assault charge
as magnified by the habitual-felony-offender enhancement.
Knowing that evidence was available that could conclusively
exonerate him from the attempted-assault charge would
certainly have altered Hollander's decision to plead guilty.
Deficient performance, but not prejudice, may be found,
for instance, when a purported error of counsel is harmless.
For example, trial counsel may fail to object to hearsay
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testimony, but other properly admitted evidence may be so
probative of the defendant's guilt as to render the improper
evidence duplicative and thus nonprejudicial. In this case,
however, the dashboard-camera video is unique and likely
conclusive, in that it portrays the actual events underlying
the guilty plea. In the absence of the video, the jury would
have to weigh Hollander's credibility against that of the
police officer. With the video, Hollander has the assistance
of incontrovertible evidence that could conclusively exonerate
him. Counsel's statements indicate that, in her view,
Hollander would not have pleaded guilty had he been able to
view that evidence on a timely basis. She freely confessed
that her error in this regard induced Hollander to plead
guilty. Hollander's insistence that the video was essential to
his defense indicates that he understood that it would benefit
him. Repeatedly asking counsel to inquire about the existence
of the video would have been irrational if Hollander knew that
he had indeed directly rammed the police vehicle in full view
of the dashboard-camera recording device.
"An ineffectiveness claim ... is an attack on the
fundamental fairness of the proceeding whose result is
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challenged." Strickland, 466 U.S. at 697. When deficient
performance of counsel causes unique dispositive evidence to
be unavailable on a timely basis for consideration in making
the decision whether to plead guilty or go to trial, the
unfairness to the defendant who pleads guilty without
knowledge of the existence of this evidence is palpable. The
failure of trial counsel to offer the video into evidence, and
thus its absence from the record on appeal, prohibits us from
determining the precise degree of prejudice Hollander suffered
from its absence.7 Nonetheless, to require Hollander to suffer
the effects of a guilty plea he would not otherwise have
entered into but for counsel's deficient performance is
fundamentally unfair. See Ex parte Thomas, 616 So. 2d 352
(Ala. 1992) (holding that a refusal to permit the withdrawal
of a guilty plea in light of misrepresentations about lost
evidence "constituted a manifest injustice" justifying
withdrawal of the plea).
7
Indeed, counsel's failure to offer the video into
evidence at the hearing on Hollander's motion to withdraw his
guilty plea is further evidence of deficient performance and
resulting prejudice to Hollander. If the video were in the
record, this Court would have had a firmer basis on which to
evaluate Hollander's petition.
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Allowing Hollander to withdraw his guilty plea does not
mean he will go free. "Upon withdrawal of a guilty plea, the
charges against the defendant as they existed before any
amendment, reduction, or dismissal made as part of a plea
agreement shall be reinstated automatically." Rule 14.4(e),
Ala. R. Crim. P. Unless he repleaded, Hollander would still
face trial for attempted first-degree assault and four
misdemeanors. But at his side he would have not only counsel,
but also the perfect witness: a video of the events giving
rise to his indictment.
IV. Conclusion
Because under governing law Hollander is entitled to
withdraw his guilty plea, I dissent from quashing the writ of
certiorari.
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