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United States v. Dishner

United States District Court, E.D. Tennessee, Greeneville

June 20, 2018




         Currently 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.

         I. Procedural Background

         On 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].

         The 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 evidence.

         II. FACTS

         The 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 ¶ 5].

         The 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 place:

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 with.
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.

         [Doc. 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 withdraw it.
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 you?
DEFENDANT: Yes, sir.

         [Id. 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 ...

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