NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0946n.06
Filed: December 5, 2005
No. 04-4177
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
RHONDA J. TURPIN, NORTHERN DISTRICT OF OHIO
Defendant-Appellant.
/
BEFORE: KEITH, SUHRHEINRICH, and CLAY, Circuit Judges.
CLAY, Circuit Judge. Defendant Rhonda J. Turpin appeals a September 14, 2004 order
of the United States District Court for the Northern District of Ohio, the Honorable Lesley Wells
presiding, sentencing Defendant in connection with two counts of theft of government funds in
violation of 18 U.S.C. § 641. For the reasons set forth below, we AFFIRM the district court’s
order.
No. 04-4177
I.
BACKGROUND
A. PROCEDURAL HISTORY
On December 10, 2003, a grand jury indicted Defendant on two counts of thefts of
government funds in violation of 18 U.S.C. § 641.
On February 12, 2004, Defendant pled guilty to both counts pursuant to a plea agreement.
The plea agreement stated in relevant part:
15. Criminal History Category. The parties have no agreement as to the
Criminal History Category applicable in this case. Defendant understands
that the Criminal History Category will be determined by the Court after the
completion of a Pre-Sentence Investigation by the U.S. Probation Office.
....
17. Sentencing Recommendations Not Binding on the Court. Defendant
understands that the recommendations of the parties will not be binding upon
the Court, that the Court alone will decide the applicable sentencing range,
whether there is any basis to depart from that range, and what sentence to
impose. Defendant further understands that once the Court has accepted
Defendant’s guilty plea, Defendant will not have the right to withdraw such
a plea if the Court does not accept any sentencing recommendations made on
Defendant’s behalf or if Defendant is otherwise dissatisfied with the
sentence.
(J.A. at 54-55). During the plea hearing, the Assistant United States Attorney (“AUSA”) stated that
the criminal history category would be determined by the court following completion of the pre-
sentence report by the probation office. The AUSA opined that the criminal history category would
be on the higher end because of Defendant’s “extensive criminal history.” (J.A. at 109.)
The district court explained to Defendant that the court had not determined Defendant’s
criminal history, and that criminal history would play a role in Defendant’s sentence. Defendant’s
counsel estimated that based on the information available to him, Defendant’s “criminal history may
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No. 04-4177
be somewhere between a four and five, with five being the highest.” (J.A. at 118.) The court then
explained the possible range of punishment corresponding to a “four” and “five” criminal history
category in relation with a “ten” and “twelve” offense level. The court read the indictment to
Defendant, and Defendant pled guilty. The court scheduled a sentencing hearing for May 3, 2004.
On March 22, 2004, the probation office sent the initial pre-sentence investigation report to
the parties. The report stated that Defendant had a total of twenty-six criminal history points, which
equated to a criminal history category of six. Defendant did not object to the report.
On April 21, 2004, the court granted Defendant’s motion to postpone the sentencing hearing
because of a scheduling conflict. The court rescheduled sentencing for May 24, 2004.
On April 27, 2004, the probation office sent a revised pre-sentence investigation report.
On May 3, 2004, Defendant’s counsel informed the probation office that he had several
objections to the pre-sentence investigation report. Specifically, counsel objected to points
connected with seven prior convictions; counsel felt that Defendant’s criminal history category
should be four. The probation office disagreed with Defendant’s counsel, and it issued a second
revised pre-sentence investigation report that noted the objections of Defendant’s counsel.
On May 19, 2004, Defendant’s counsel, Donald Butler, filed a motion to withdraw as counsel
for Defendant. The ground for his motion was the erosion of the attorney-client relationship.
On May 19, 2004, the court granted Mr. Butler’s motion, and Michael Goldberg entered an
appearance as Defendant’s counsel. Defendant’s new counsel then stated his intention to file a
motion to withdraw Defendant’s plea. He filed such motion on June 7, 2004, on the ground that
Defendant was misled by her previous counsel as to her criminal history calculation. Defendant
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claimed that in private conversations, her previous counsel assured her that certain convictions
would not be included in the computation of her criminal history, so that her criminal history
category would be two or three.
On July 14, 2004, the court denied Defendant’s motion to withdraw her plea and vacate her
conviction. The court found that Defendant failed to raise a “fair and just reason” in support of her
motion. Defendant knew that there were no guarantees with respect to her criminal history
calculation, and she knew there were no guarantees with respect to her actual sentence as a result.
The court also found that Defendant had extensive experience with the criminal justice system, so
that she should have understood the nature of her plea agreement. The court also found that there
was a substantial delay between Defendant’s notice of the criminal history stated in the initial pre-
sentence investigation report and her motion to withdraw her plea. Lastly, the court found that
Defendant had not maintained her innocence during the proceedings, and this fact weighed against
granting Defendant’s motion.
On September 14, 2004, the court sentenced Defendant to twenty-seven months of
imprisonment for each count, with the sentences to run concurrently. The court also ordered three
years of supervised release and monetary penalties in the amount of the restitution required.
On September 23, 2004, Defendant filed a timely notice of appeal.
B. FACTS
Defendant is a resident of Ohio. According to the government’s allegations, from September
1999 to May 2002, Defendant received Housing Assistance Payment checks. She received these
checks in the name of “Ethel White,” the purported landlord of a property, on behalf of tenant “Cleo
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No. 04-4177
Turpin.” In actuality, Defendant owned the property, and she was not entitled to receive the
Housing Assistance Payment checks.
According to the government’s allegations, from September 1999 to August 2002, Defendant
received Housing Assistance Payment checks on behalf of her daughter, knowing that her daughter
was not eligible for such assistance.
II.
DISCUSSION
A. DEFENDANT’S GUILTY PLEA WAS KNOWING, VOLUNTARY, AND
INTELLIGENT.
1. Standard of Review
The issue of whether a plea was knowing, voluntary, and intelligent is a legal question that
this Court reviews de novo. United States v. Jones, 403 F.3d 817, 822 (6th Cir. 2005) (quoting
United States v. Walker, 160 F.3d 1078, 1095-96 (6th Cir. 1998)).
2. Analysis
Defendant entered into her guilty plea knowingly, voluntarily, and intelligently.
a. Legal Framework
A guilty plea is more than just an admission of guilt; it is a waiver of the constitutional right
to a trial by judge or jury. Brady v. United States, 397 U.S. 742, 748 (1970). As a result, a
defendant must enter a guilty plea knowingly, voluntarily, and intelligently. Id. The district court
must verify “that the defendant’s plea is voluntary and that the defendant understands his or her
applicable constitutional rights, the nature of the crime charged, the consequences of the guilty plea,
and the factual basis for concluding that the defendant committed the crime charged.” United States
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No. 04-4177
v. Webb, 403 F.3d 373, 378-79 (6th Cir. 2005) (citing United States v. Goldberg, 862 F.2d 101, 106
(6th Cir. 1988)). In a simple case, however, the district court may fulfill its responsibility by reading
the indictment and allowing the defendant to ask questions about the charge. United States v.
Valdez, 362 F.3d 903, 908 (6th Cir. 2004).
b. Application to this case
This is a simple case; it involves two counts of theft of government funds, and the manner
in which the crimes were committed was straightforward. See supra. As a result, the district court
fulfilled its duty when it read the indictment to Defendant, and Defendant pled guilty.
Even under a more detailed analysis, the result would be the same. The heart of Defendant’s
claim with respect to this issue is that she did not understand “the consequences of the guilty plea.”
Webb, 403 F.3d at 379. In support of this argument, Defendant relies on her previous attorney’s
misstatements as to his estimate of Defendant’s criminal history category. As Defendant views the
situation, “[t]he choice between a plea and trial cannot be knowingly and voluntarily made where
a defendant does not have proper information regarding her potential sentence.” (Def.’s Br. at 20
(emphasis supplied).)
The flaw in Defendant’s argument is that Defendant in fact had the proper information
regarding her potential sentence. Paragraph 2 of Defendant’s plea agreement stated the maximum
penalty allowed for her crimes. Paragraph 15 stated that the parties had not agreed to a criminal
history category. Paragraph 17 stated that Defendant’s counsel’s recommendations were not a
guarantee, that the court had the ultimate authority in deciding the sentence, and that Defendant
could not withdraw her plea if she was dissatisfied with the sentence she received.
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No. 04-4177
At the plea hearing, the AUSA reiterated that the criminal history category had not yet been
determined, and he stated he felt that the criminal history category would “be toward the higher end
of the criminal history chart.” (J.A. at 109.) Likewise, the district court spent a great deal of effort
explaining that it did not know Defendant’s criminal history category, and that Defendant’s sentence
would vary based upon that information. Defendant’s counsel guessed that her criminal history
category would be four or five; however, the court never accepted this estimate as definitive.
Although Defendant may not be pleased with the sentence she received in light of her
previous attorney’s advice, she knew the maximum penalty she could receive, she knew that her
sentence would be based on her criminal history category, she knew that her criminal history
category was unknown at the time, and she knew that she could not withdraw her plea if she was
dissatisfied with the sentence. In short, Defendant was well aware of the potential sentence, even
if she is unhappy with the actual sentence.
B. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING
DEFENDANT’S MOTION TO WITHDRAW HER GUILTY PLEA.
1. Standard of Review
This Court reviews the district court’s decision denying Defendant’s motion to withdraw her
plea for abuse of discretion. United States v. Denkins, 367 F.3d 537, 544 n.3 (6th Cir. 2004)
(referencing United States v. Pluta, 144 F.3d 968, 973 (6th Cir. 1998)).
2. Analysis
The district court did not abuse its discretion when it denied Defendant’s motion to withdraw
her guilty plea.
a. Legal Framework
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No. 04-4177
Federal Rule of Criminal Procedure 11(d) states: “A defendant may withdraw a plea of guilty
. . . after the court accepts the plea but before it imposes sentence if . . . the defendant can show a
fair and just reason for requesting the withdrawal.”
In giving content to “a fair and just reason,” this Court has relied on several non-exclusive
factors:
(1) the amount of time that elapsed between the plea and the motion to withdraw it;
(2) the presence (or absence) of a valid reason for the failure to move for withdrawal
earlier in the proceedings; (3) whether the defendant has asserted or maintained his
innocence; (4) the circumstances underlying the entry of the guilty plea; (5) the
defendant's nature and background; (6) the degree to which the defendant has had
prior experience with the criminal justice system; and (7) potential prejudice to the
government if the motion to withdraw is granted.
United States v. Bazzi, 94 F.3d 1025, 1027 (6th Cir. 1996). No one factor is controlling. Id.
b. Application to This Case
With respect to the first two factors, the district court found that substantial time had elapsed
between Defendant’s guilty plea, February 12, 2004, and her motion to withdraw, June 7, 2004. In
addition, the district court found that substantial time had elapsed between the time Defendant
should have been on notice of her criminal history category, March 22, 2004, and her motion to
withdraw.
The Court agrees with the district court’s reasoning in that Defendant does not explain why
she waited until June 7, 2004 to make a motion to withdraw, when she found out on March 22, 2004
that her criminal history category was six, and not the criminal history category of two or three her
previous counsel was estimating in private. Defendant never denies receiving the March 22, 2004
pre-sentence investigation report; she was therefore on notice that the court was going to use a
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No. 04-4177
criminal history category of six to assess her sentence. Defendant should have filed a motion to
withdraw immediately thereafter; her purported dependence on counsel does not excuse her inaction.
With respect to the third factor, we agree with the district court that Defendant has not
consistently maintained her innocence. At her plea hearing, Defendant admitted to the facts
underlying the crimes. Her counsel specifically stated, “She is not disputing what she did. I mean,
that’s why she signed [the plea agreement], because she acknowledged her participation in the acts
she was involved in here.” (J.A. at 114.) During her sentencing hearing, Defendant stated, “And
I apologize to the government, to Section 8, to HUD, for anything I did.” (J.A. at 150.) Defendant
did not assert her innocence at any time during this hearing. Only in her memorandum in support
of her motion to withdraw did Defendant assert her innocence.
This Court recognizes that the circumstances surrounding a plea hearing and a sentencing
hearing may have impeded Defendant’s ability to maintain her innocence. The problem, however,
is that at only one point, in her memorandum in support of her motion to withdraw, does Defendant
assert her innocence. This is not a consistent maintenance of innocence.
Neither Plaintiff nor Defendant addressed the fourth and fifth factors.
With respect to the sixth factor, we agree with the district court that Defendant has had
extensive experience with the criminal justice system, a fact that Defendant does not dispute.
With respect to the seventh factor, we agree with Defendant that the United States has not
suffered prejudice with respect to its ability to try this case. All evidence for this case continues to
be available, and nothing in the record suggests any other form of prejudice.
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No. 04-4177
From these factors, this Court cannot say that the district court abused its discretion when
it denied Defendant’s motion to withdraw her plea. Defendant did not explain why she waited to
make the motion, Defendant has not consistently maintained her innocence, and Defendant has
extensive experience with the criminal justice system. From these facts, the district court was well
within its power when it denied Defendant’s motion.
Most importantly, we have specifically stated that “the mere fact that an attorney incorrectly
estimates the sentence a defendant is likely to receive is not a ‘fair and just’ reason to allow
withdrawal of a plea agreement.” United States v. Stephens, 906 F.2d 251, 253 (6th Cir. 1990).
Even if Defendant’s previous attorney gave erroneous advice as to his estimate of Defendant’s
sentence, Defendant could not withdraw her plea. The rationale is that the district court, by
explaining that Defendant’s sentence would depend on her criminal history category, by explaining
that such category had not yet been calculated, and by explaining the court had the ultimate power
in deciding the sentence, made clear to Defendant that her counsel’s erroneous estimate would have
no weight in its sentencing decision. See United States v. Cinnamon, 112 Fed. App’x 415, 419 (6th
Cir. 2004) (unpublished).
C. THIS COURT SHOULD NOT HEAR DEFENDANT’S SIXTH AMENDMENT
INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM.
1. Preservation of the Issue
At heart, Defendant’s claim is one of ineffective assistance of counsel; however, Defendant
never squarely addresses the contours of such a claim as delineated by Strickland v. Washington,
466 U.S. 668 (1984), even though she does cite the case and the appropriate inquiry in her brief to
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No. 04-4177
this Court. Defendant does not even cite to the appropriate case for ineffective assistance of counsel
in connection with guilty pleas, Hill v. Lockhart, 474 U.S. 52, 58-59 (1985).
Moreover, the Court does not usually entertain ineffective assistance of counsel claims on
direct review. United States v. Shabazz, 263 F.3d 603, 612 (6th Cir. 2001) (citing United States v.
Jackson, 181 F.3d 740, 747 (6th Cir. 1999)). The rationale behind this policy is that the record from
the lower court is usually insufficient for this Court to decide such a claim, because the focus of the
record is not on the quality of counsel’s representation. Id. (citing United States v. Aguwa, 123 F.3d
418, 423 (6th Cir. 1997)). Instead, this Court has held that a defendant should usually pursue an
ineffective assistance of counsel claim through collateral review. Id. (citing United States v. Long,
190 F.3d 471, 478 (6th Cir. 1999)). If, however, trial counsel’s ineffectiveness is so apparent from
the record that additional fact-finding is unnecessary, then this Court should hear the ineffective
assistance of counsel claim on direct review. Massaro v. United States, 538 U.S. 500, 508 (2003).
We do not believe that the instant case is one where the ineffectiveness of Defendant’s
previous counsel was so obvious from the record as to preclude the necessity of additional fact-
finding. The Court agrees with Defendant that her previous counsel’s error in estimating her
criminal history is reflected in counsel’s objections to the first revised pre-sentence investigation
report. On the other hand, the record also shows that Defendant’s previous counsel estimated her
criminal history to be four or five, instead of the two or three she claims counsel advised her in
private. The record is simply inconclusive as to whether Defendant’s previous counsel was indeed
ineffective, and further development of the record is necessary.
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No. 04-4177
As an aside, one may believe that because Defendant did not have a “fair and just” reason
to withdraw her guilty plea, she also does not have a valid claim for ineffective assistance of
counsel. This is incorrect; the two inquiries are subtly distinct. Defendant could not withdraw her
guilty plea because she knew that her sentence could be different than that estimated by counsel.
See supra.
On the other hand, to establish an ineffective assistance of counsel claim, Defendant must
show: (1) her counsel’s representation fell below an objective level of reasonableness, and (2) there
is a reasonable probability that, but for her counsel’s errors, she would not have pled guilty and
would have insisted on going to trial. Lockhart, 474 U.S. at 58-59. In other words, a defendant who
relies on her counsel’s erroneous sentence estimate and takes a plea agreement may not withdraw
from the plea agreement, as she knew her counsel’s sentence estimate could differ from the sentence
actually delivered by the court. She can, however, still make an ineffective assistance of counsel
claim in that her counsel’s sentence estimate fell below an objective standard of reasonableness, and
but for her counsel’s erroneous sentence estimate, she would not have taken the plea.
D. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION WHEN IT DID NOT
CONDUCT AN EVIDENTIARY HEARING IN CONNECTION WITH
DEFENDANT’S MOTION TO WITHDRAW HER GUILTY PLEA.
1. Standard of Review
This Court reviews the district court’s denial of a motion to withdraw a guilty plea for abuse
of discretion. See supra. If factual matters bearing directly on the plea are in controversy,
Defendant is entitled to an evidentiary hearing on such matters. United States v. Triplett, 828 F.2d
1195, 1198 (6th Cir. 1987). If the district court does not hold an evidentiary hearing to which
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No. 04-4177
Defendant is entitled, this is an abuse of discretion. See, e.g., United States v. Joslin, 434 F.2d 526,
531 (D.C. Cir. 1970).
2. Analysis
The district court did not abuse its discretion when it did not conduct an evidentiary hearing
in connection with Defendant’s motion to withdraw her plea. As explained supra, even if the district
court were to assume that Defendant’s previous counsel gave her incorrect advice concerning her
probable sentence, this fact was not a valid reason for Defendant to withdraw her plea. This is true
because Defendant knew that her criminal history category had not yet been decided, and she knew
that her sentence would be based on this figure. In other words, the district court did not need to
hold an evidentiary hearing, because even if Defendant proved ineffective assistance of counsel, she
still could not withdraw her plea.
III.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court order.
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