United States District Court, E.D. Tennessee, Greeneville
MEMORANDUM OPINION AND ORDER
GREER UNITED STATES DISTRICT JUDGE
before the Court is the defendant's motion to withdraw
his guilty plea, [Doc. 724]. Pursuant to this Court's
order, the defendant has filed a supplemental brief in
support of his motion, [Doc. 809]. The United States has
responded, [Doc. 825]. On May 30, 2018, this Court held an
evidentiary hearing on the matter. The transcript of said
hearing has been filed, [Doc. 862], and the matter is now
ripe for review. For the reasons that follow, the
defendant's motion will be DENIED.
October 19, 2017, the parties filed a signed plea agreement
in this case, [Doc. 395], and the Court subsequently
scheduled a change of plea hearing to commence on November
17, 2017 (“November 17 hearing” or “change
of plea hearing”). Two days before the scheduled change
of plea hearing, the defendant's former counsel
(“Mr. Leonard”) filed a motion to withdraw from
the case, [Doc. 477]. At the change of plea hearing on
November 17, 2017, the Court took up the defendant's
counsel's motion to withdraw in a sealed hearing. Based
on the representations made during the sealed hearing by both
counsel and the defendant, the motion to withdraw was denied,
see [Doc. 494], and the Court went forward with the
change of plea hearing. This Court ultimately accepted the
defendant's guilty plea as to Count One of the
Indictment, and took the parties' plea agreement under
advisement. On January 5, 2018, the defendant's former
counsel filed a subsequent motion to withdraw from
representation, [Doc. 621]. On January 23, 2018, the
defendant filed a pro se motion to appoint new
counsel and to withdraw his guilty plea, [Doc. 655]. This
Court held a hearing on both motions on January 25, 2018, and
granted the former counsel's request to withdraw.
Additionally, the Court appointed new counsel for the
defendant, [Doc. 673], and required the defendant to confer
with new counsel to determine if a withdrawal of his guilty
plea was still requested. The defendant subsequently filed a
renewed motion to withdraw his guilty plea in accordance with
this Court's order, [Doc. 724].
Court held an evidentiary hearing on the defendant's
motion on May 30, 2018. The defendant was the sole witness on
his behalf. The United States presented its own witness and
defendant, along with 24 co-defendants, was indicted by a
federal grand jury on February 14, 2017 in a thirty-three
count indictment, [Doc. 3]. The defendant was charged in
three separate counts of the indictment, including Count One
for conspiracy to distribute 50 grams or more of
methamphetamine, Count Eight for possession with the intent
to distribute a quantity of methamphetamine, and Count Nine
for possession of a firearm in furtherance of a drug
trafficking offense, [Doc. 3]. The defendant signed and filed
a plea agreement on October 19, 2017, [Doc. 395]. In that
plea agreement, the defendant agreed to plead guilty to Count
One of the indictment for conspiracy to distribute 50 grams
or more of actual methamphetamine. The stipulation of facts
agreed to by the parties satisfying the elements of the
offense for Count One specifically set out that “[t]he
defendant was a member of a drug trafficking organization . .
. operating primarily in Sullivan County, Tennessee and
Southwest Virginia during the time frame of the conspiracy
charged in the superseding [sic] indictment.”
[Id. at ¶ 4]. Additionally, the agreement
stated that the “Defendant agrees that he conspired
with his co-defendants to distribute methamphetamine (actual)
and that he is responsible for the distribution of at least
150 grams but less than 500 grams of methamphetamine
(actual).” [Id.]. The agreement further stated
that “[t]he defendant is pleading guilty because the
defendant is in fact guilty.” [Id. at ¶
defendant appeared before this Court at the November 17
hearing, nearly a full month after the plea agreement was
signed and filed. During the sealed proceedings, after
placing the defendant under oath, the following exchange took
COURT: Mr. Leonard has informed [the Court] that as of last
Friday you were indicating to him that you wished to have a
trial in the case rather than enter a plea; is that correct?
DEFENDANT: Yes, sir. At the time he come [sic] spoke with me,
I was explaining to him that I, that I was having problems
with the plea agreement; but over the weekend I went over the
plea agreement over and over, I talked about it with my
family, and if, if I can, I was going to go ahead and take
the plea agreement today since it was already
signed…But I'm willing today, I'm just ready
to get it over with.
I was hoping today that [my attorney would] come talk to me
before I came in here, and I'd explain to him that, you
know, it was just in my feelings and thought about going to
trial, but now I'll just go ahead, it's signed,
I'll go ahead and plead guilty today and get it over
COURT: Well, Mr. Dishner, I'm not sure I'll allow you
to go forward just to get it over with. If you're
satisfied with this plea agreement and you're satisfied
with your representation by Mr. Leonard, that's one
thing; but if you simply decided to do it simply to get it
over with, I'm not sure I'm going to accept it.
DEFENDANT: No, sir, that's not what I meant. I mean that
I'm satisfied with the plea agreement and I'm
satisfied with what my lawyer has done, so I think it would
be in my best interest to go ahead and plead here today.
806 at Page ID # 7739-41]. After further discussion, the
Court went on to state to the defendant:
COURT: . . . But having said that to you, I can't get
involved in the plea agreement or plea negotiations. I
certainly - makes absolutely no difference to me whether you
plead guilty or go to trial. I've got a trial scheduled
in just two weeks, I think, maybe three, two or three weeks.
That trial is apparently going forward anyway with one or two
of your codefendants, so it's, it's no more work for
me, it's - that's what I'm here for.
DEFENDANT: Yes, sir.
COURT: So if you want a trial, you can have a trial. It's
that simple. You're entitled to a trial. Going forward,
if you decide to enter a plea today, going forward Mr.
Leonard is still going to be your attorney. I don't think
I'm going to let him withdraw under these circumstances.
COURT: You're going to have to get along with him.
DEFENDANT: He's - I like Mr. Leonard. He's been very
good to me. Like I said, your honor, we just - we both got
heated a little bit, and it's - I guess everybody does.
COURT: I guess here is where we are, Mr. Dishner. If there is
any doubt in your mind today about going forward with this
agreement you've made with the government and entering a
guilty plea, now is the time to voice that because once you
enter this guilty plea, I'm not likely to let you
DEFENDANT: Yes, sir, I understand that.
COURT: So do you want to go forward today?
DEFENDANT: Yes, sir.
COURT: So understanding all that and after reflecting over
the weekend then, do you want to go ahead with this guilty
plea this morning?
DEFENDANT: Yes, sir.
COURT: And do you want Mr. Leonard to continue to represent
DEFENDANT: Yes, sir.
at 7744-46]. After this exchange, the Court commenced the
change of plea hearing with the government present. At the
change of plea hearing, the Court followed its usual plea
colloquy with the defendant, explaining to the defendant the
offenses he was charged with, the elements of the offense he
was pleading guilty to, his right to plead not guilty, his
rights associated with a trial, the mandatory minimum penalty
as well as the maximum possible penalty which the Court could
impose, and other questioning of the defendant to ensure that
his plea of guilty was voluntarily and knowingly made.
Further, the Court pointed out again to the defendant that
“if you enter this guilty plea here today pursuant to
this plea agreement, do you understand that it is very, very
unlikely you could at some later time ...