The People, Respondent,v.Robert Mitchell, Appellant.BriefN.Y.May 2, 2013To be argued by: REBEKAH J. PAZMIÑO, Esq. (Counsel requests 20 minutes) COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- ROBERT MITCHELL, Defendant-Appellant. BRIEF FOR DEFENDANT-APPELLANT RICHARD M. GREENBERG, Esq. Attorney for Defendant-Appellant By: REBEKAH J. PAZMIÑO, Esq. Staff Attorney RPazmino@appellatedefender.org OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, NY 10007 (212) 402-4100 August 24, 2012 i TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 The Plea Proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 At a Pre-Sentence Proceeding Regarding Robert Mitchell’s Pro Se Plea Withdrawal Motion, The Court Elicited Statements From Defense Counsel that Were Adverse to Mr. Mitchell, While Counsel was Still Representing Him. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Although Newly-Appointed Counsel for Mr. Mitchell Added Specific and Troubling Allegations Concerning Prior Counsel’s Ineffectiveness That Were Not Enumerated in Mr. Mitchell’s Pro Se Motion, the Court Refused to Conduct Further Inquiry and Instead Proceeded with Sentencing. . . . . . . 11 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 WHERE ROBERT MITCHELL ADVANCED A POTENTIALLY VALID CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL, THE COURT BELOW ERRED IN SUMMARILY DENYING HIS MOTION TO WITHDRAW HIS PLEA WITHOUT ANY MEANINGFUL INQUIRY; AND WHERE THE COURT ELICITED STATEMENTS FROM DEFENSE COUNSEL THAT WERE ADVERSE TO HIS CLIENT, MR. MITCHELL WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL.. . . . . . . . . . . . . . . . . . 15 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 ii TABLE OF AUTHORITIES CASES Boykin v. Alabama, 395 U.S. 238 (1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Hurrell-Harring v. State, 15 N.Y.3d 8 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 People v. Baret, 43 A.D.3d 648 (1st Dep’t 2007), aff’d, 11 N.Y.3d 31 (2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 People v. Bell, 141 A.D.2d 749 (2d Dep’t 1988) . . . . . . . . . . . . . . . . . . . . . . . . . 20 People v. Betsch, 286 A.D.2d 887 (4th Dep’t 2001) . . . . . . . . . . . . . . . . . . . 20-21 People v. Bryant, 22 A.D.3d 676 (2d Dep’t 2005) . . . . . . . . . . . . . . . . . . . . . . . . 21 People v. Caccavale, 305 A.D.2d 695 (2d Dep’t 2003) . . . . . . . . . . . . . . . . . . . . 21 People v. Coleman, 294 A.D.2d 843 (4th Dep’t 2002) . . . . . . . . . . . . . . . . . . . . . 21 People v. Frederick, 45 N.Y.2d 520 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 28 People v. Gaskin, 2 A.D.3d 347 (1st Dep’t 2003) . . . . . . . . . . . . . . . . . . . . . . . . 25 People v. Gonzalez, 171 A.D.2d 413 (1st Dep’t 1991) . . . . . . . . . . . . . . . . . . . . 16 People v. Gruttadauria, 40 A.D.3d 879 (2d Dep’t 2007) . . . . . . . . . . . . . . . . . . . 21 People v. Hall, 56 A.D.2d 893 (2d Dep’t 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . 26 People v. Kelsch, 96 A.D.2d 677 (3d Dep’t 1983) . . . . . . . . . . . . . . . . . . . . . . . . 20 People v. Latham, 36 A.D.3d 553 (1st Dep’t 2007) . . . . . . . . . . . . . . . . . . . . . . . 17 People v. Linares, 2 N.Y.3d 507 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 iii People v. Longtin, 92 N.Y.2d 640 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21-22 People v. Medina, 44 N.Y.2d 199 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 People v. Nixon, 21 N.Y.2d 338 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16-17 People v. Ortiz, 76 N.Y.2d 652 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 People v. Rozzell, 20 N.Y.2d 712 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . 16, 20, 22 People v. Santana, 156 A.D.2d 736 (2d Dep’t 1989) . . . . . . . . . . . . . . . . . . . . . . 23 People v. Tinsley, 35 N.Y.2d 926 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . 16-18, 25 People v. Ulloa, 300 A.D.2d 60 (1st Dep’t 2002) . . . . . . . . . . . . . . . . . . . . . . . . . 16 People v. Vasquez, 70 N.Y.2d 1 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Pehzman v. City of New York, 29 A.D.3d 164 (1st Dep’t 2006) . . . . . . . . . . . . . 25 Wood v. Georgia, 450 U.S. 261 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 CONSTITUTIONAL PROVISIONS N.Y. Const. art. I, § 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 27, 29 U.S. Const. amend. V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 29 U.S. Const. amend. VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 U.S. Const. amend. XIV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 27, 29 iv STATUTES N.Y. Crim. Proc. Law § 220.60 (McKinney 2002) . . . . . . . . . . . . . . . . . . . . . . . . 16 N. Y. Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.3 comment [1] (Jul. 12, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18-19 N.Y. Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.4 (Jul. 12, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 N.Y. Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.7 (Jul. 12, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 N.Y. Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.7 comment [1] (Jul. 12, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 v SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST DEPARTMENT ---------------------------------------------------------------------X THE PEOPLE OF THE STATE OF NEW YORK, : Respondent, : : -against- : Ind. No. 1791/04 : ROBERT MITCHELL, : Defendant-Appellant. : ---------------------------------------------------------------------X PRELIMINARY STATEMENT By permission of the Honorable Theodore T. Jones, Judge of the Court of Appeals, granted June 1, 2012, appeal is taken from an order of the Appellate Division, First Department, entered on November 29, 2011. See People v. Mitchell, 89 A.D.3d 628 (1st Dep’t 2011), lv. granted, --- N.Y.3d --- (Jun 01, 2012). This order affirmed a judgment of conviction rendered on November 19, 2007, by the Supreme Court, Bronx County (Tallmer, J. at plea and sentencing). Following a guilty plea, Robert Mitchell was convicted of two counts of murder in the second degree. N.Y. Penal Law § 125.25(1) (McKinney 2000). Mr. Mitchell was sentenced to two concurrent prison terms of twenty-five years to life. Mr. Mitchell is currently serving his sentences. 1 QUESTION PRESENTED Where, at sentencing, newly-appointed defense counsel added specific factual allegations to Robert Mitchell’s pro se motion to withdraw his guilty plea – allegations that, if true, could have established prior counsel’s ineffectiveness – did the court err in summarily dismissing the allegations and denying Mr. Mitchell’s motion without any meaningful inquiry? In addition, was Mr. Mitchell deprived of the effective assistance of counsel where the court elicited statements from defense counsel that were clearly adverse to his client’s interests? 2 INTRODUCTION Robert Mitchell’s case demonstrates a failure by the court at every stage to properly consider the serious allegations of attorney coercion and ineffective assistance of counsel that were raised in connection with Mr. Mitchell’s motion to withdraw his guilty plea. After being held on murder charges for nearly four years, Mr. Mitchell entered a plea of guilty to two counts of murder in exchange for a promise of concurrent terms of 25 years to life. Prior to sentencing, Mr. Mitchell moved to withdraw his guilty plea, claiming that he was innocent and had been coerced by his attorney to plead guilty. When Mr. Mitchell’s pro se application was first brought to the court’s attention, the court declined to provide him with an opportunity to explain the bases for his claims. Instead, the court elicited self-serving statements from defense counsel that were clearly adverse to his client, and only after, did the court relieve counsel and appoint a new attorney to represent Mr. Mitchell. Because his own attorney advocated against him, Mr. Mitchell was deprived of the effective assistance of conflict-free counsel. At a subsequent proceeding, newly-appointed counsel added specific, factual bases to Mr. Mitchell’s initial claims. However, despite newly-appointed counsel’s revelations and assertions that Mr. Mitchell had a potentially valid ineffective assistance of counsel claim, the court refused to conduct any further inquiry. Because 3 the court failed to engage in proper inquiry into Mr. Mitchell’s serious allegations, the court could not have made the informed determination that the law requires. The court below therefore violated Mr. Mitchell’s due process rights – a violation which this Court should now remedy. 1 For convenience, citations preceded by “P. __” refer to the plea proceeding of October 22, 2007; citations preceded by “PS. __” refer to the pre-sentencing proceeding that took place on November 14, 2007; and citations preceded by “S. __” refer to the sentencing proceeding of November 19, 2007. All of the documents cited in this brief can be found in the Appendix, parallel citations to which will be designated by “A. __.” 4 STATEMENT OF FACTS The Plea Proceeding On October 22, 2007, almost four years after being indicted, Robert Mitchell pled guilty to two counts of murder in the second degree, while represented by initially-assigned defense attorney, Cesar Gonzalez. The case had been set for trial on October 17, 2007, and adjourned for a possible disposition. See A. 12-23.1 The subsequent plea proceeding began with a discussion on the written waiver of the right to appeal. See P. 15-16 (A. 26-27). Defense counsel indicated that Mr. Mitchell had read the written waiver, counsel had explained it to him, and Mr. Mitchell had signed it. P. 16 (A. 27). Mr. Mitchell did not speak during this exchange. The court next confirmed, through Mr. Mitchell’s one-word affirmative responses, that he had “had sufficient time to discuss this with [his] attorney,” was “satisfied” with counsel’s services, and that no one had forced him to plead guilty or had made any promises to him in order to induce his plea. P. 18 (A. 29). Mr. Mitchell also responded “Yes,” when the court asked if he understood that his guilty 5 plea would have the same legal effect as if he had been found guilty after trial. P. 18- 19 (A. 29-30). Tracking the language of the first two counts in the indictment, the court asked Mr. Mitchell if it was true that, acting in concert with others, he intentionally caused the deaths of the two decedents by shooting them in the head with a gun. P. 20 (A. 31). When Mr. Mitchell said “No,” the court responded: “Then why are we doing this? I can’t take a plea if he can’t --” Id. The court then asked the prosecution whether Mr. Mitchell was charged with being “personally” responsible for the deaths, or if he had been charged under an acting in concert theory with his co-defendant, Kevin Washington. See id. The prosecution said it “believe[d]” that Mr. Mitchell had been personally responsible for one of the deaths, but admitted that it had no proof of this. P. 20-21 (A. 31-32). When the court requested further clarification as to whether the charge was that Mr. Mitchell had been “acting in concert with [the co- defendant],” the prosecution acknowledged that this was the case. P. 21 (A. 32). The court then provided an expanded explanation of what it meant to have acted in concert with another individual, after which Mr. Mitchell assented to the factual allocution. P. 22 (A. 33). When the court subsequently asked whether there was “any question at all in [his] mind that [he] did commit the [charged offenses] . . . and [was] 2 For reasons unknown, Mr. Mitchell’s plea withdrawal motion was not included in the record on appeal. In an effort to locate it, undersigned counsel contacted both of Mr. Mitchell’s defense attorneys and the Bronx District Attorney’s Office, and reviewed the file on record at the Clerk’s Office in Bronx County Supreme Court. Notwithstanding these efforts, the written motion could not be located. Because both parties and the court referred to and quoted from the motion on the record, however, the fact that the actual motion is not now available does not in any way impede this Court’s review of the issues presented. 6 pleading guilty to acting in concert” with other individuals, Mr. Mitchell said: “No.” P. 23 (A. 34). At a Pre-Sentence Proceeding Regarding Robert Mitchell’s Pro Se Plea Withdrawal Motion, The Court Elicited Statements From Defense Counsel that Were Adverse to Mr. Mitchell, While Counsel was Still Representing Him. Nearly one month later, on November 14, 2007, the case was scheduled for sentencing. However, prior to the imposition of his sentence, Mr. Mitchell, who continued to be represented by initially-assigned defense counsel, filed a pro se motion to withdraw his plea. Defense counsel informed the court that he had just that day received a copy of Mr. Mitchell’s pro se motion, and that “[o]rdinarily, I wouldn’t be preoccupied with it except that one basis that he alleges is that, and I quote, ‘I was coerced into pleading guilty by my defense attorney.’” PS. 3 (A. 41).2 In response, the court asked whether it was fair to say that counsel was “not responding to these allegations.” Id. To this, counsel replied: “I think, as a practical matter, I think I am somewhat barred from responding to these particular allegations per se. However, 7 inasmuch as now Mr. Mitchell has alleged certain grounds --.” Id. (emphasis added). At this point, the court interrupted to say: [U]nless you’re making statements that are contrary to his interests, Counsel. Then, I mean, if we are getting into this conversation, [the thing to do] is to assign new counsel, as I understand the law, if you are actually taking a position adverse to your client’s, as opposed to not taking any position with respect to this application, then there is no requirement of assigning a new attorney. Is that where you were headed? Id. (emphasis added). In response, counsel said: “You couldn’t have read my mind better.” Id. The court proceeded to review Mr. Mitchell’s pro se motion and asserted that it was “the Riker’s equivalent of a boilerplate motion,” with spaces to insert the date, and with the word “coerced” already typed in. PS. 4 (A. 42). When the court asked Mr. Mitchell if he had “anything at all to add,” the only thing the court allowed Mr. Mitchell to say in response was: “Yes. I have been sitting in Riker’s [I]sland for four years, and from day one I said I was not guilty.” PS. 4-5 (A. 42-43). At this point, the court interrupted, stating that it was familiar with the situation, having presided over the co-defendant’s earlier trial, and then asserted that it had taken a “full allocution” from Mr. Mitchell, in which he had said that no one had pressured, coerced, or promised him in order to induce his guilty plea. PS. 5 (A. 43). When asked by the court, the prosecution said that this was its “recollection” as well. Id. 8 The court went on to again assert that this was “a totally boilerplate motion. It’s not in any way adapted to the particulars of your case . . . . [T]here is no meat to this is what I’m trying to say.” PS. 6 (A. 44). The court next asserted that, although Mr. Mitchell may have maintained his innocence, many defendants do so until they plead guilty, but that the: mere switching of innocence unbacked by anything else in the face of what I know, sir, had to have been a very thorough allocution, sir, it’s just not a basis for withdrawing your plea; and given the fact that counsel has not in any way disputed any allegations, there is not a basis here to appoint a new attorney or to hold any type of hearing. All you have said to me is you previously said you were innocent. Well, you told me under oath, sir, that you were not innocent; that you, in fact, were guilty. PS. 6-7 (A. 44-45) (emphasis added). The court proceeded to summarily deny Mr. Mitchell’s motion. PS. 7 (A. 45). When Mr. Mitchell asked for permission to make a statement on the record, the court was quick to remind him that he was still represented by counsel, it was “generally not a good idea” for him to make remarks on the record, and the better course of action would be to speak through his attorney. Id. The court went on to say: “Mr. Gonzalez is still your attorney. He is a very, very competent attorney. If you want to say something, I suggest that you run it by him first because you could be prejudicing yourself.” Id. 9 The court then asked defense counsel if there was anything he wished to say on Mr. Mitchell’s behalf, to which counsel said: “[O]nly that I do not adopt the merits or factual assertions relative to this [motion].” PS. 8 (A. 46). When asked by the court whether he was “not contesting it factually such that your [counsel’s] interests would be adverse at this time to your client,” counsel requested a bench conference, which was held off the record. Id. When back on the record, the court said: Counsel is concerned that if he does not respond to the defendant’s allegations, however boilerplate and meritless they may be, that he may in some way be implicitly acknowledging that there is any truth to them or any merit to them. I understand his reluctance to do that, even though at this point that would then place him in a position adverse to his client[’s] and I’d have to assign new counsel.” Id. (emphasis added). To this, counsel responded: “Yes, your Honor.” Id. After expressing that it was unsure of whether the law required the assignment of new counsel, the court asserted that, “out of prudence, if we are going to take this step, it makes sense to assign him new counsel.” PS. 9 (A. 47). However, instead of assigning new counsel immediately, the court proceeded to elicit direct responses from defense counsel to Mr. Mitchell’s allegations, while counsel was still representing Mr. Mitchell. See id. In response to the court’s query, counsel first stated: “[O]bviously, I take a position contrary to Mr. Mitchell with respect to the assertion . . . that he was coerced. I have spoken to Mr. Mitchell here in court relative 10 to some of the things that he is alluding to as forming the basis for his belief that he was coerced and --” Id. (emphasis added). At this point, the court interrupted and confirmed with counsel that he had given Mr. Mitchell a copy of the appellate decision in the co-defendant’s case. Id. Defense counsel subsequently expressed on the record that Mr. Mitchell’s position was that counsel’s conduct had resulted in an undue influence to plead guilty, adding: “It’s a position I cannot adopt. In fact, in certain respects, some of things that he’s alleging to the Court now are at odds.” PS. 10 (A. 48) (emphasis added). When asked if he was “expressly denying that [he] in any way coerced” Mr. Mitchell’s plea, counsel said: “No I did not.” Id. When the court followed this by asking if counsel had told Mr. Mitchell “what his options were,” counsel said: “I believe I fulfilled my professional obligations under the law to give him a perspective as to what possible consequences may flow in the event things didn’t go his way.” PS. 10-11 (A. 48-49). The court proceeded to ask counsel if he had discussed what he believed were the strengths and weaknesses of the prosecution’s case, and what occurred at the co-defendant’s trial, finishing this query by asking the pointed questioned: “You discussed all that with him, correct?” PS. 11 (A. 49) (emphasis added). Counsel replied: “Yes, your Honor.” Id. 11 The court then addressed Mr. Mitchell and said: “I would have to agree at this point, since your attorney has flatly denied your allegations, again, no matter how meritless or boilerplate they may be, it’s more prudent to give you yet another attorney” to review the pro se plea withdrawal motion and “decide whether he or she believes there is anything to go forward with.” Id. (emphasis added). The court then expressed Mr. Mitchell directly that it believed his plea withdrawal motion would not ultimately be successful. See id. At the conclusion of this proceeding, the court adjourned the case for five days so that a new attorney could be assigned to represent Mr. Mitchell. See PS. 12-14 (A. 50-52). It was only at this point that the court relieved initially-assigned defense counsel, Mr. Gonzalez, as counsel for Mr. Mitchell. PS. 12 (A. 50). Although Newly-Appointed Counsel for Mr. Mitchell Added Specific and Troubling Allegations Concerning Prior Counsel’s Ineffectiveness That Were Not Enumerated in Mr. Mitchell’s Pro Se Motion, the Court Refused to Conduct Further Inquiry and Instead Proceeded with Sentencing. On November 19, 2007, Mr. Mitchell was represented by newly-appointed defense counsel, Kyle Watters. At the outset of this proceeding, the court again characterized Mr. Mitchell’s pro se plea withdrawal motion as “boilerplate,” recounting that, in the motion, Mr. Mitchell had alleged that he was “pressured” and 3 Although the court claimed earlier that newly-appointed counsel had “spoken with his client for some time now,” S. 2 (A. 54), counsel’s own assertions belie this assertion. 12 “coerced” by his former attorney to plead guilty and that, despite his protestations of innocence, the attorney had informed him that the judge would sentence him to the maximum sentence if he were convicted at trial. S. 2 (A. 54). The court asserted that, “[o]ut of an excess of caution,” it had assigned new counsel, and was now prepared to hear new counsel on the motion. S. 2-3 (A. 54-55). When newly-appointed counsel was given the opportunity to address the court, he began by saying that he had spoken with Mr. Mitchell at the courthouse that day, which was the first time they had met. S. 5 (A. 57).3 Newly-appointed counsel then pointed out how his discussions with Mr. Mitchell had revealed issues concerning the prior attorney’s representation that, if true, could “be a basis for an ineffective assistance of counsel claim.” Id. Newly-appointed counsel cautioned, however, that he was “not making an assessment” as to the truthfulness of Mr. Mitchell’s claims, since he had not been present during the Mr. Gonzalez’s representation and did not know Mr. Gonzalez or Mr. Mitchell during that time. Id. Counsel followed this by saying: “I only know that, I believe there is some merit to a claim of ineffective assistance of counsel if, in fact, the allegations are accurate.” S. 5-6 (A. 57-58) (emphasis added). 13 Newly-appointed counsel proceeded to specifically note that Mr. Mitchell had informed him that, in the nearly four years leading up to his plea, previously-assigned counsel had never visited him, and had not discussed the merits of his case or any possible defenses with him. S. 6 (A. 58). Rather, previously-assigned counsel’s only advice to Mr. Mitchell was to simply “take whatever plea he could get, otherwise he would never get out.” Id. Without conducting any further inquiry, the court denied Mr. Mitchell’s motion, again characterizing it as “entirely conclusory and boilerplate,” and stating that it would “rely on the actual plea minutes and the plea discussion.” S. 6-7 (A. 58- 59). The court also noted that Mr. Mitchell had himself “initiated the possibility” of a 25 year to life sentence, and that the court had given Mr. Mitchell an “extended weekend” to consider whether to accept this sentence. S. 7 (A. 59). The court next asserted that: from my own observations, and from the plea minutes themselves, there simply cannot be anything here to sustain a claim of coercion or any type of ineffective assistance of counsel claims in connection with his plea. If he has some other basis for making an ineffective assistance of counsel claim, not related to his plea counsel, then he’s free to do that, but there is nothing here other than pure boilerplate and pure conclusory language, so I’m denying the motion . . . . S. 8 (A. 60). The court opined that, because Mr. Mitchell’s claims were “literally boilerplate,” that he had not “even bothered to adapt . . . to this case,” his allegations 14 were a mere “pro forma change of heart after he’s entered knowingly, voluntarily into a plea.” S. 9 (A. 61). The court then said that, “as far as [it was] concerned, there [was] absolutely nothing” to support Mr. Mitchell’s claim of ineffective assistance. Id. The court proceeded to sentence Mr. Mitchell to two concurrent prison terms of 25 years to life. S. 19 (A. 71). 15 ARGUMENT WHERE ROBERT MITCHELL ADVANCED A POTENTIALLY VALID CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL, THE COURT BELOW ERRED IN SUMMARILY DENYING HIS MOTION TO WITHDRAW HIS PLEA WITHOUT ANY MEANINGFUL INQUIRY; AND WHERE THE COURT ELICITED STATEMENTS FROM DEFENSE COUNSEL THAT WERE ADVERSE TO HIS CLIENT, MR. MITCHELL WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL. The unique circumstances of this case demonstrate a failure at every level to adequately consider the allegations underlying Robert Mitchell’s pro se motion to withdraw his guilty plea. When Mr. Mitchell filed his initial pro se application claiming attorney coercion and ineffective assistance of counsel, instead of obtaining further information from Mr. Mitchell, directly, the trial court elicited self-serving statements from defense counsel that were adverse to his client. Only after these statements were made did the court relieve counsel and decide to appoint a new attorney to represent Mr. Mitchell. At a subsequent proceeding, newly-appointed counsel added specific, factual bases to Mr. Mitchell’s initial claims. Despite indications by newly-appointed counsel that Mr. Mitchell had a potentially viable ineffective assistance of counsel claim, the sentencing court did not conduct any further inquiry into the matter and simply denied the motion out of hand. 16 Instead, what the court should have done was either grant Mr. Mitchell’s motion, or at the very least, engage in additional inquiry into the circumstances surrounding Mr. Mitchell’s claims. Because it failed to pursue even the most basic of inquiries into Mr. Mitchell’s allegations, the court could not have made the kind of informed determination that the law requires when faced with an application to withdraw a guilty plea. The sentencing court’s failure violated Mr. Mitchell’s due process rights. See U.S. Const. amends. V, XIV; N.Y. Const. art. I, § 6; see also People v. Rozzell, 20 N.Y.2d 712, 713 (1967); People v. Gonzalez, 171 A.D.2d 413, 413-14 (1st Dep’t 1991). Accordingly, this Court should vacate Mr. Mitchell’s plea and reverse his conviction or, in the alternative, remand the matter for proper inquiry into the bases for Mr. Mitchell’s plea withdrawal motion. In accordance with the constitutional requirement that a guilty plea be the product of a knowing, intelligent and voluntary choice, every defendant has the right to move for the vacatur of his or her plea if any of these essential elements is missing. See Boykin v. Alabama, 395 U.S. 238, 243 (1969); People v. Ulloa, 300 A.D.2d 60, 61 (1st Dep’t 2002); see also N.Y. Crim. Proc. Law § 220.60(3) (McKinney 2002). While this Court has held that the “disposition of [plea withdrawal motions] rests largely in the discretion of the Judge to whom the motion is made,” People v. Tinsley, 35 N.Y.2d 926, 927 (1974), it has also made clear that, “where the initial inquiry 17 exposes difficulties or subsequent interpositions by defendant on sentencing raise questions, the court should be quick to offer the defendant an opportunity to withdraw his plea and at the very least conduct a hearing.” People v. Nixon, 21 N.Y.2d 338, 355 (1967). Though a formal hearing is not per se required whenever a defendant moves to withdraw his guilty plea, see People v. Baret, 43 A.D.3d 648, 649 (1st Dep’t 2007), aff’d, 11 N.Y.3d 31, 33-34 (2008), and there is no “hard and fast rule which prescribes the nature and extent of the fact-finding procedures prerequisite to the dispositions of motions to withdraw a plea of guilty,” it is well-settled that a judge must afford the defendant “a reasonable opportunity to advance his claims,” in order to make “an informed and prudent determination” on the defendant’s motion. People v. Frederick, 45 N.Y.2d 520, 524-25 (1978). This opportunity may take the form of a “limited inquiry into the basis of defendant’s complaint,” People v. Latham, 36 A.D.3d 553, 555 (1st Dep’t 2007), but whatever its form it must entail some consideration by the court of defendant’s allegations. See Frederick, 45 N.Y.2d at 524-25. Thus, even absent a formal hearing, this Court’s precedent makes clear that judges must engage in, at least, “a limited interrogation.” Tinsley, 35 N.Y.2d at 927(concluding that the “opportunity given defendant at the time the motion was 18 made to withdraw his plea -- to speak for himself and to have his counsel address the court on his behalf -- met the required procedural standard”). Here, unlike in Tinsley, Robert Mitchell was never given any meaningful opportunity to speak for himself. Indeed, when the court asked Mr. Mitchell if he had “anything at all to add” to what he had put forth in his pro se plea withdrawal motion, the only thing it allowed him to say was that he had been at Riker’s Island for four years and that, throughout that time, he had maintained his innocence. PS. 4-5 (A. 42-43). At this point, the court interrupted to note its familiarity with the case and to assert that it had taken a “full allocution” from Mr. Mitchell at the previous plea proceeding. PS. 5 (A. 43). When Mr. Mitchell later asked to make a statement on the record, the court was quick to remind him that he was still represented by counsel, and strongly urged him to speak only through his attorney. PS. 7 (A. 45). Yet, this was the very attorney whose ineffectiveness Mr. Mitchell was trying to explain to the court and who was also moments away from being relieved. As the record makes clear, defense counsel was not acting in his client’s interest at this point in the case. Thus, unlike in Tinsley, initially-assigned defense counsel was not addressing the court on Mr. Mitchell’s behalf, as was his ethical duty. See N.Y. Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.3 comment [1] (Jul. 12, 2012) (counsel must “act with commitment and dedication to the interests 4 While the Rules of Professional Conduct were first codified on April 1 2009, and so the events of this case occurred under the former Code of Professional Responsibility, the attorney’s duty of loyalty to the client and obligation to advocate on his behalf remain unchanged. 19 of the client and in advocacy upon the client’s behalf”).4 See also N.Y. Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.7 comment [1] (Jul. 12, 2012) (loyalty is an “essential aspect[] of a lawyer’s relationship with a client”). Defense counsel here was clearly not acting loyally towards Mr. Mitchell when he made numerous statements in direct opposition to his client’s position. Rather, counsel was defending his own conduct in the case and was thus effectively advocating against his own client, creating a serious conflict of interest. See N.Y. Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.7(a) (Jul. 12, 2012). First in his line of wholly adverse statements was counsel’s assertion that he was “obviously” taking “a position contrary to Mr. Mitchell with respect to the assertion . . . that he was coerced. I have spoken to Mr. Mitchell here in court relative to some of the things that he is alluding to as forming the basis for his belief that he was coerced . . . .” PS. 9 (A. 47). At the court’s prompting, counsel confirmed that he had given Mr. Mitchell a copy of the appellate decision in the co-defendant’s case. Id. Counsel next asserted that he could not adopt Mr. Mitchell’s position that his conduct had resulted in an undue influence on Mr. Mitchell to plead guilty. PS. 10 (A. 48). Counsel then “expressly den[ied] that [he] in any way coerced” Mr. 5 Of course, it should be noted that, since defense counsel’s coercion and ineffectiveness were the underlying bases for Mr. Mitchell’s assertion that his plea was not knowing, intelligent, and voluntary, counsel was hardly in an objective position to evaluate Mr. Mitchell’s allegations. See Rozell, 20 N.Y.2d at 713 (noting that it is “difficult, if not impossible, for counsel effectively to represent the right of the accused to have judicial consideration given to his motion to withdraw a plea of guilty, where counsel is himself called as a witness in an inquiry which penetrates deeply into the intraprofessional relationship”). 20 Mitchell’s plea. Id. Counsel followed this by saying that he believed he had “fulfilled [his] professional obligations under the law to give [Mr. Mitchell] a perspective as to what possible consequences may flow in the event things didn’t go his way.” PS. 10-11 (A. 48-49). The court then elicited from counsel that he had discussed the strengths and weaknesses of the prosecution’s case, as well as what happened at the co-defendant’s trial. PS. 11 (A. 49). Counsel made all of these statements prior to being relieved as Mr. Mitchell’s attorney. See PS. 12 (A. 50). Simply put, defense counsel’s statements were improper, even if he did, in fact, believe that Mr. Mitchell had no grounds to withdraw his plea.5 An attorney may refuse to actively participate in a motion to withdraw a plea so long as the “‘lack of participation worked no discernible prejudice.’” People v. Bell, 141 A.D.2d 749, 750 (2d Dep’t 1988) (quoting People v. Kelsch, 96 A.D.2d 677, 679 [3d Dep’t 1983]). Here, however, counsel did not merely refuse to join in Mr. Mitchell’s motion, he actually spoke out against it. See People v. Betsch, 286 A.D.2d 887, 887 (4th Dep’t 2001) (“[a]lthough defense counsel had no duty to support” defendant’s pro se motion 6 Appellate courts have reached similar conclusions that a conflict of interest existed between the client and the defense attorney in cases where the client filed a pro se motion to set aside the verdict. See, e.g., People v. Gruttadauria, 40 A.D.3d 879, 880 (2d Dep’t 2007) (where, in response to defendant’s pro se C.P.L. 330.30 motion alleging ineffective assistance, defense counsel submitted an affirmation in which he opposed the motion by “explain[ing] his performance on the record with references to matters dehors the record,” counsel took a “position adverse to his client,” thereby “depriv[ing] the defendant of effective assistance of counsel”); People v. Coleman, 294 A.D.2d 843, 844 (4th Dep’t 2002) (defense counsel’s statement on the record that, “‘I think I did everything that an attorney should do under all of the circumstances here,’” was “in direct conflict with defendant’s contention that defense counsel had been ineffective,” thus counsel had taken a position that was adverse to his own client). 21 to set aside the verdict due to, inter alia, ineffective assistance, defense counsel “could not take a position that was adverse to that of his client”). At this point, counsel was no longer representing Mr. Mitchell’s interests and was, instead, taking a position that was directly in conflict with that of his client. See People v. Caccavale, 305 A.D.2d 695, 695 (2d Dep’t 2003) (where counsel “specifically denied” defendant’s pro se plea withdrawal allegation of attorney coercion, and “stressed what he had done on the defendant’s behalf,” defendant’s right to counsel was “adversely affected when his attorney, essentially, became a witness against him and took a position adverse to him”); see also People v. Bryant, 22 A.D.3d 676, 677 (2d Dep’t 2005) (same conclusion where defendant alleged ineffective assistance of counsel).6 Because the record makes clear that defense counsel was actually advocating against his client’s non-frivolous position, counsel was not “conflict free and singlemindedly devoted to [Mr. Mitchell’s] best interests,” 22 as he was obligated to be. People v. Longtin, 92 N.Y.2d 640, 644 (1998). This clearly violated Mr. Mitchell’s state and federal constitutional right to “conflict-free” counsel, see Wood v. Georgia, 450 U.S. 261, 271 (1981); People v. Ortiz, 76 N.Y.2d 652, 656 (1990) – a right which attaches at every critical stage of the proceedings, including when the court is deciding a plea withdrawal motion. See Rozell, 20 N.Y.2d at 713. In addition, this Court has held that an attorney’s efforts to undermine his client’s arguments can constitute grounds for reversal. See People v. Vasquez, 70 N.Y.2d 1, 3 (1987). In Vasquez, the defendant-appellant wished to raise ten issues on appeal, nine of which appellate counsel believed were meritless. Id. Counsel submitted a brief arguing the single point he considered meritorious and setting forth the remaining issues under a point hearing which asserted that these other issues were “without merit.” Id. This Court found that, while counsel was not obligated to discuss the claims he deemed meritless, he should not have disparaged them. Id. Rather, the proper procedure would have been to “make no comment about claims considered frivolous.” Id. Under the reasoning of Vasquez, what defense counsel should have done here was simply present the motion and, if he chose to do so, decline to adopt it. Counsel should not, however, have made any comments on the substance of the motion. Indeed, counsel’s initial instincts – that he was “somewhat 23 barred from responding to these particular allegations,” PS. 3 (A. 41) – were correct. By making numerous statements, which not only addressed, but directly contradicted Mr. Mitchell’s claims of attorney coercion and ineffective assistance of counsel, counsel abrogated his duty to be an effective advocate. Furthermore, not only did defense counsel fail to fulfill his professional obligations to his client, but the court also acted improperly in eliciting adverse information from counsel while he continued to represent Mr. Mitchell. Indeed, the court was well aware that, if counsel intended to make statements “contrary to [Mr. Mitchell’s] interests,” the proper course of action was to relieve him and assign new counsel. Id. See also PS. 7 (A. 45) (recognizing that if counsel were to respond to Mr. Mitchell’s allegations, this would place counsel “in a position adverse to his client[’s],” and new counsel would have to be assigned). Instead of doing so when it became clear that counsel was acting in a manner that was adverse to the interests of his client, the court continued to ask leading questions, designed to obtain information that would undermine Mr. Mitchell’s claims. The court was, however, obligated to assign new counsel prior to eliciting a specific response from counsel. See People v. Santana, 156 A.D.2d 736, 737 (2d Dep’t 1989) (“If the court deemed it necessary to obtain factual information from defense counsel, it should have assigned the defendant different counsel before doing so.”) (emphasis added). By 24 failing to do so, Mr. Mitchell’s right to counsel was “adversely affected” when, “at the court’s urging,” counsel acted as a witness against his own client. Id. As the record thus shows, the failure to consider Mr. Mitchell’s allegations was multi-layered: first, the court refused to elicit any information directly from Mr. Mitchell concerning his allegations; next, the court elicited statements from initially- appointed counsel that were adverse to his client’s interests; and then, counsel offered his own statements on the record that he was ethically barred from making while still representing Mr. Mitchell. The court also failed to properly address both the allegations Mr. Mitchell set forth in his pro se plea withdrawal motion, as well as the additional factual bases for Mr. Mitchell’s claims which newly-appointed counsel made at the outset of the sentencing proceedings. While it is true that Mr. Mitchell used a pre-prepared form motion as a framework to advance his claims, the court should not have relied upon this fact as the basis for denying his application. Mr. Mitchell was simply availing himself of the only resources available to him as an incarcerated individual, who had not had the benefit of any legal training. It seems that far too often courts give short shrift to plea withdrawal motions simply because they are fashioned from “boilerplate” documents. Yet, what other avenue does an indigent defendant have, particularly one who, like Mr. Mitchell, is encumbered with an attorney who has failed to meet even the most 7 In Gaskin, unlike here, the First Department recognized that the lower court had engaged in sufficient consideration of the defendant’s plea withdrawal motion, where the defendant filed a pro se motion containing conclusory and unelaborated claims and, when given the opportunity to address the court, he “merely restated” his claims. 2 A.D.3d at 347. In contrast, the court here never provided Mr. Mitchell with any opportunity to directly explain his allegations on the record. 25 basic of his obligations? Certainly, in other contexts, pro se litigants are granted liberal readings of their claims by the courts. See, e.g., Pehzman v. City of New York, 29 A.D.3d 164, 168 (1st Dep’t 2006) (“a pro se complaint should be construed liberally in favor of the pleader”). Because Mr. Mitchell’s pro se plea withdrawal motion did not provide enough information to allow the court to properly determine whether his plea was knowing, intelligent and voluntary, the court was obligated to conduct at least some “limited interrogation” into the matter, see Tinsely, 35 N.Y.2d at 927 – including obtaining information directly from Mr. Mitchell, particularly after defense counsel’s contrary version of events was fully enumerated on the record. Even if the court was, arguably, not under an obligation to conduct further inquiry based solely on the statements set forth in Mr. Mitchell’s initial pro se plea withdrawal motion, see, e.g., People v. Gaskin, 2 A.D.3d 347, 347 (1st Dep’t 2003),7 the court’s duty to inquire was certainly triggered when newly-appointed counsel asserted that Mr. Mitchell’s claims, if true, could constitute ineffective assistance of counsel. See S. 5 (A. 57). Not only did newly-appointed counsel, as an officer of the court, raise the significant possibility that prior counsel was ineffective, but he also 26 added new, specific factual allegations underlying Mr. Mitchell’s claims, discussing how he had been informed that, in the four years leading up to Mr. Mitchell’s plea, prior counsel had not visited Mr. Mitchell, and had not discussed the merits of the case or any possible defense. S. 6 (A. 58). Rather, prior counsel’s only advice to Mr. Mitchell had been to “take whatever plea he could get, otherwise he would never get out.” Id. These serious allegations thus presented the court with more than just a “boilerplate” pro se motion. Notably, neither the court nor the prosecutor offered facts indicating that Mr. Mitchell’s claims were unlikely to be true. When newly-appointed counsel informed the court of specific and possibly meritorious claims, the court was thus obligated to do more than simply reject these allegations out of hand and proceed to sentencing. See People v. Hall, 56 A.D.2d 893, 893 (2d Dep’t 1977) (remanding for hearing to assess defendant’s statements at sentencing which included assertions of innocence, cautioning that “[e]ven if there was some doubt as to what the defendant was referring, the trial court should not have imposed sentence without further inquiry”). It seems not only hypocritical, but wholly unjust for a plea court to dismiss a defendant’s claims as “conclusory” and “boilerplate,” only to then itself issue a conclusory denial of those claims. That the court should have conducted some inquiry is further supported by the magnitude of Mr. Mitchell’s claims, which implicated one of the most basic tenets of 8 The state’s Rules of Professional Conduct also mandate that lawyers “reasonably consult with the client about the means by which the client’s objectives are to be accomplished; . . . [and] explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” N.Y. Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.4 (Jul. 12, 2012). 27 his fundamental right to counsel: to actually confer with his attorney. See U.S. Const. amend. VI, XIV; N.Y. Const. art. I. § 6. Never should this right be taken more seriously, and a court be more certain of a plea’s soundness, than when the stakes are, as they were here, extraordinarily high. Indeed, this Court recently characterized a claim that counsel was routinely unavailable to clients as a complete denial of counsel—where prejudice is presumed—and not simply a claim of ineffectiveness. See Hurrell-Harring v. State, 15 N.Y.3d 8, 19 (2010) (finding plaintiffs alleged facts sufficient to state civil claim for denial of right to counsel where lawyers met with clients “little, if at all, were often completely unresponsive to their urgent inquiries and requests from jail, sometimes for months on end, waived important rights without consulting them, and ultimately appeared to do little more on their behalf than act as conduits for plea offers”).8 After some inquiry into Mr. Mitchell’s claims, the court may have decided that they were without merit, and its authority may have supported a denial of Mr. Mitchell’s claim at that juncture. However, the court’s summary denial here constituted a violation of its duty to provide Mr. Mitchell with a “reasonable 28 opportunity” to advance his claims. See Frederick, 45 N.Y.2d at 525. It also violated the court’s continuing duty to “carefully evaluate serious complaints about counsel.” People v. Linares, 2 N.Y.3d 507, 510 (2004) (quoting People v. Medina, 44 N.Y.2d 199, 207 [1978]). Given the incredibly serious prison sentence Mr. Mitchell was facing, it cannot possibly be the rule that a court need only appoint new counsel—and ignore whatever information that appointment might raise—to discharge these duties. Indeed, the court’s summary rejection of Mr. Mitchell’s motion in the face of his additional assertions, through newly-appointed counsel, suggests that the court’s assignment of new counsel was nothing more than an empty formality. In sum, the record here shows that there was a complete failure at every stage to engage in even a limited examination of Mr. Mitchell’s plea withdrawal motion. Without ever hearing from Mr. Mitchell directly, the court denied his motion, even after specific factual information was brought to its attention by newly-appointed counsel that could have constituted a viable claim. Although the balance between process and judicial efficiency is not easily struck, that difficulty must not be used as a shroud to immunize courts from improper and fairness-threatening shortcuts. Where the court appointed new counsel for the very purpose of determining the bases underlying Mr. Mitchell’s claims, and counsel’s investigation and subsequent report to the court revealed that these claims may have been meritorious, the court should 29 have granted Mr. Mitchell’s motion or, at the very least, conducted additional inquiry into the matter. Because it did not, the court deprived Mr. Mitchell of his constitutional due process rights. See U.S. Const. amend. V, XIV; N.Y. Const. art. I, § 6. Accordingly, this Court should either vacate Mr. Mitchell’s plea and reverse his conviction, or remand for a proper inquiry to determine the merits underlying his plea withdrawal claim. 30 CONCLUSION For the reasons stated above, Robert Mitchell’s plea should be vacated, and his conviction reversed. In the alternative, this Court should remand the matter for proper inquiry into Mr. Mitchell’s plea withdrawal motion. Dated: New York, New York August 24, 2012 Respectfully submitted, RICHARD M. GREENBERG, ESQ. Attorney for Defendant-Appellant ___________________________ By: REBEKAH J. PAZMIÑO, ESQ. Staff Attorney RPazmino@appellatedefender.org OFFICE OF THE APPELLATE DEFENDER 11 Park Place, Suite 1601 New York, New York 10007 (212) 402-4100