The People, Respondent,v.Phillip A. Dodson, Appellant.BriefN.Y.November 16, 2017 September 25, 2017 John P. Asiello Clerk of the Court State of New York, Court of Appeals 20 Eagle Street Albany, New York 12207 Re: People v Dodson (Phillip A.), APL-2017-00158 Dear Mr. Asiello: This letter brief is submitted in response to the Court’s request for letter submissions pursuant to Rule 500.11. The materials previously submitted to the Appellate Division are enclosed, as well as the transcript of the lower court proceedings. Summary of Argument The trial court abused its discretion when it denied Mr. Dodson’s request for new counsel without conducting any inquiry about the breakdown in the relationship between Mr. Dodson and his attorney, and where previously, it had denied defense counsel’s own requests to be relieved without any inquiry. On two separate occasions prior to pleading guilty to assault in the first degree, Mr. Dodson’s attorney asked to be relieved of his assignment due to a breakdown in the attorney-client relationship. The conflict or issue underlying counsel’s requests to be relieved was not addressed by the court, or otherwise resolved. By the time Mr. Dodson requested new counsel to advise him regarding whether to withdraw his guilty plea – a request the court said it would grant – it appeared that the relationship had continued to deteriorate. Counsel even told the court, at the final court appearance, where Mr. Dodson requested a new attorney, that he believed he needed to remain silent because Mr. Dodson did not want counsel to speak for him. (T 1/8/2014, 5.) Thereafter, when pressed by the court John P. Asiello Clerk of the Court September 25, 2017 - 2 - on the question of whether he wanted to withdraw his guilty plea, Mr. Dodson asked: with his lawyer not speaking for him, who was he supposed ask for answers to his questions? (T 1/8/2014, 6.) Given the apparent dissolution of the relationship at the time Mr. Dodson asked for new counsel to assist him in deciding whether withdraw his guilty plea (he had not joined in counsel’s earlier requests to be relieved), the court was obligated to conduct a minimal inquiry that would enable it to carefully evaluate the request (People v Sides, 75 NY2d 822, 824-825 [1990]), or replace counsel. It failed to do either. As a result, Mr. Dodson was effectively without counsel at a critical time in the proceeding – when he had the option of withdrawing his guilty plea, and when he was adjudicated a second felony offender and sentenced as such. Argument A “seemingly serious request” for new counsel is reflected by the record in this case and the court failed in its obligation to (1) inquire about the nature and degree of the conflict between Mr. Dodson and his attorney, and (2) determine whether the attorney, who had previously asked to be relieved, could effectively assist Mr. Dodson in deciding whether to withdraw his guilty and at sentencing. This Court has made clear that while a defendant’s request for substitution of counsel should not be granted “casually” (People v Medina, 44 NY2d 199, 207 [1978]), the trial court must “carefully evaluate seemingly serious requests” to determine if there is good cause for substitution (Sides, 75 NY2d at 824-825). Good cause for substitution includes “a conflict of interest or other irreconcilable conflict with counsel” (id.). Because good cause determinations are case-specific, they fall within the discretion of the court, and the court abuses its discretion when it “conduct[s] only a perfunctory inquiry into defendant’s serious request for the assignment of new counsel.” (People v Linares, 2 NY3d 507, 511 [2004].) In Linares, the trial court’s inquiry into defendant’s request for new counsel was “diligent and thorough,” and examination of the record as a whole failed to indicate that “defense counsel had a genuine conflict of interest with the defendant or that he was in any way deficient in representing him.” (Id.) The record in this case is in sharp contrast. Here, the record shows that Mr. Dodson’s assigned attorney wanted out, and when Mr. Dodson asked for a new attorney to assist him in deciding whether to John P. Asiello Clerk of the Court September 25, 2017 - 3 - withdraw his guilty plea, the court failed to conduct any inquiry, just as it had failed to do earlier when his attorney had asked to be relieved. The circumstances underlying Mr. Dodson’s request for new counsel included not only his lawyer’s requests to be relieved, but also Mr. Dodson’s belief that he had been forced to plead guilty because he could not go to trial with an attorney who did not want to represent him, and his attorney’s statement (at sentencing) that he believed Mr. Dodson no longer wanted him to speak on his (Dodson’s) behalf. These circumstances demonstrate a “seemingly serious request” for new counsel – a request that Mr. Dodson continued to press right up to the point he was sentenced – and the court failed in its obligation to make even a minimal inquiry and to carefully evaluate the request. It failed in this obligation even after counsel told the court that he believed he needed to remain silent and not speak for Mr. Dodson. After counsel’s statement about remaining silent, the court asked Mr. Dodson whether he wanted to withdraw his guilty plea. Facing this critical decision, Mr. Dodson appeared to effectively be without counsel. A defendant’s right to effective assistance of counsel on his or her motion to withdraw a guilty plea is firmly established (see People v Mitchell, 21 NY3d 964, 966 [2013]; People v Boyd, 22 NY2d 707 [1968]). A motion to withdraw has been deemed a “critical stage,” and where counsel, although standing next to his or her client, is not in a position to effectively represent the client in making or supporting such a motion, the client has been denied effective assistance of counsel (see People v Rozzell, 20 NY2d 712 [1967]). The record in this case reflects a total dissolution of the attorney client relationship by the time Mr. Dodson asked for new counsel to assist him in deciding whether to withdraw his guilty plea, and at the time he was sentenced as a predicate offender. In People v Sides (75 NY2d 824), before pleading guilty, the defendant asked to have his assigned attorney dismissed and new counsel assigned. The attorney acknowledged that his client was not satisfied with his representation, that communication between the two of them had dissolved, and that there may be issues of distrust. Without asking any questions, the court said it would not assign different counsel, but advised the defendant he was free to hire counsel or proceed to trial without counsel. The court also said that if the defendant did not plead guilty, the plea offer would be revoked. The defendant said he would plead guilty if his currently assigned attorney was still willing to represent him, and he ultimately entered a guilty plea. John P. Asiello Clerk of the Court September 25, 2017 - 4 - On appeal, the defendant argued that the court’s failure to conduct any inquiry related to his complaint and the adequacy of his attorney’s representation violated his State and Federal constitutional right to counsel. This Court agreed, pointing out that the defendant’s request for new counsel suggested “a serious possibility of irreconcilable conflict with his lawyer, as evidence by the acknowledgment of counsel that a complete breakdown of communication and lack of trust had developed in their relationship.” (Sides 75 NY2d at 825.) Without an inquiry, the court had failed in its obligation and “the defendant’s right to counsel was not adequately protected.” (Id.) The record in the present case reveals an actual serious and seemingly irreconcilable conflict – not just the possibility of one. It was defense counsel who first asked that he be relieved from representing Mr. Dodson, citing the breakdown in their relationship. Following that request, Mr. Dodson said he had only seen his attorney once in the three months he had been held in jail, and his attorney countered that it was three times, and again advocated for a different attorney. (T 10/16/2013, 2 – 6.) But the court made no inquiry regarding the problems or conflict between the two, and asked only whether counsel had been assigned or retained. The court then said, “I’m not giving him another attorney.” (T 10/16/2013, 7.) There was then conversation about Mr. Dodson having a justification defense, but no apparent defense to the gun possession charge. The court warned of possible consecutive sentences. Mr. Dodson expressed a willingness to accept a thirteen year sentence because he had “no choice.” (T 10/16/2013, 8). When the court said Mr. Dodson would have to waive a justification defense, the prosecutor raised concern about the apparent breakdown in the relation between counsel and Mr. Dodson, pointing out he did not know “how much” of a breakdown there had been. (T 10/16/2013, 10.) The court followed up by saying that defense counsel had asked to be removed, and even though it was sure Mr. Dodson “would be real happy if I removed him and gave you another attorney,” that was “not going to happen” because “when you get an assigned attorney, that’s your attorney.” (T 10/16/2013, 11.) The court still asked no questions about the breakdown in the relationship between the two. It ordered counsel to see Mr. Dodson in the jail, and told Mr. Dodson to talk to his attorney. While counsel and Mr. Dodson did talk at the jail before the next court date, that conversation between the two did not appear to have improved the relationship. Specifically referencing that conversation, counsel again asked to be John P. Asiello Clerk of the Court September 25, 2017 - 5 - relieved if Mr. Dodson planned to enter a guilty plea that day. The court still asked no questions, and denied the request. (T 10/30/2013, 2.) While thereafter, Mr. Dodson and the court and the prosecutor engaged in extended discussion about the motions that had been filed, and the impact upon the thirteen year plea offer of going forward with those motions and hearings, defense counsel said nothing from the point in time when the court denied his request to be relieved, except to say (after the guilty plea had been entered and a waiver of appeal form signed), that he had told Mr. Dodson that he retained only the right to appeal ineffective assistance of counsel.1 (T 10/30/2013, 2 – 11.) Counsel’s second request to be relieved came on the heels of his conversation with Mr. Dodson, and it is curious in that he said, based on that conversation, he should be relieved if Mr. Dodson was intending to plead guilty that day. Certainly, this strongly suggests that counsel did not believe Mr. Dodson should enter a guilty plea that day. The lingering question is why? Did he believe that a breakdown in communication resulted in an impairment of Mr. Dodson’s ability to knowingly, intelligently and voluntarily enter a guilty plea or waive the rights associate with the entry of a guilty plea? Did he feel that he was unable to effectively represent Mr. Dodson? Or was it that Mr. Dodson lacked appropriate understanding as to some aspect of the case or potential defense? Just as in Sides, the court failed to “ask even a single question about the nature of the disagreement or its potential for resolution” and accepted the guilty plea. (Sides, 75 NY2d at 825.) At the time the plea was entered, the court had asked not a single question of either counsel or Mr. Dodson to ascertain the nature of the conflict or the degree to which the relationship had broken down. It had obtained no assurance from counsel that he could effectively represent Mr. Dodson. 1 A number of claims survive a valid waiver of appeal (see e.g. People v Callahan, 80 NY2d 273, 280 [1992] [legality of sentence]; People v Campbell, 97 NY2d 532, 535 [2002] [constitutional speedy trial]; People v Morris, 94 AD3d 1450 [4th Dept 2012] [involuntary plea]). The waiver of appeal in this case does not preclude the claim that the court abused its discretion in summarily denying Mr. Dodson’s request for new counsel because (1) Mr. Dodson’s claim implicates the voluntariness of his plea (see Morris, 94 AD3d 1450), and (2) Mr. Dodson’s waiver could not be a knowing and voluntary one given that his request for new counsel was made after the waiver of appeal (see People v Johnson, 14 NY3d 483, 487 [2010]). At the time Mr. Dodson waived his right to appeal it cannot be said that he intentionally and knowingly relinquished his right to counsel on a motion to withdraw the guilty plea. John P. Asiello Clerk of the Court September 25, 2017 - 6 - There were two court appearances after Mr. Dodson entered his guilty plea. At the first of the two, Mr. Dodson told the court that he wished to take back his plea, explaining that he felt he was forced to plead guilty, asking “[h]ow could I even think about a trial with a man that stated to you two times that he does not want to represent me? He does not want to represent me.” (T 12/18/2013, 2.) The court responded saying “[y]ou went over this before,” and without addressing Mr. Dodson’s complaint, proceeded with the second violent felony information, asking Mr. Dodson whether he had any constitutional challenges to his underlying conviction. Mr. Dodson responded as follows. THE DEFENDANT: If I had a lawyer to let me know what constitutional and underlying conviction meant, then yes, yes. I don’t know what that means. I’m not a law expert. . . . I don’t have a lawyer to help me with this because he does not want to represent me. He has stated this numerous times. (T 12/18/2013, 2 [emphasis added].) Again, the court made no inquiry – not even to ascertain whether counsel had discussed with Mr. Dodson the prior conviction or possible challenges to its use for predicate sentencing purposes. Mr. Dodson said he was not going to say anything further, and the court said it took that as an indication that he was standing mute and adjudicated him a second felony offender. The court then asked defense counsel if he was aware of any constitutional challenges to the underlying conviction. Counsel indicated he was not aware of any, and started to follow that statement up, but only got as far as adding “[h]owever - - ” before the court cut him off. (T 12/18/13, 4.) Defense counsel then told the court that Mr. Dodson wanted to know whether the court had read the grand jury minutes (as it had promised to do). Mr. Dodson again expressed his dissatisfaction with his attorney. THE DEFENDANT: He told you he does not want to represent me. How can I go to trial with a lawyer that does not want to represent me? Twice he explained this to you. (T 12/18/13, 7.) The court admitted it had not reviewed the grand jury minutes and the prosecutor was asked to provide them. Mr. Dodson commented that it was “crazy” that he, rather than his lawyer, was the one to bring up the issue of the grand jury minute review when the court was about to sentence him without having engaged in the promised review. Sentencing was adjourned. (T 12/18/13, 8-9.) John P. Asiello Clerk of the Court September 25, 2017 - 7 - On January 8, 2014, the court said it was going to allow Mr. Dodson to withdraw his guilty plea because the court did not feel thirteen years was a long enough sentence. The court added that it was “going to get [him] a new attorney,” but appeared to condition the assignment of new counsel to a withdrawal of the plea (T 1/8/2014, 3-4), as it immediately followed up by directly asking Mr. Dodson whether he wished to withdraw his plea. Essentially, Mr. Dodson responded that he lacked the guidance of counsel on how to proceed, and requested new counsel. THE DEFENDANT: I’m not saying nothing, man. I’m not saying nothing. I need a new lawyer to come and see me and let me know my chances. I’m not saying I withdraw my plea. I’m not saying none of that. I’m saying that I need a lawyer that is willing to represent me, let me know my chances because this man is not giving me a straight answer about anything. That’s what I need. That’s what I need. (T 1/8/2014, 4). Ignoring Mr. Dodson’s complaints, the court proceeded to sentencing. When asked if he had anything to say on his client’s behalf, defense counsel said, “Judge, I believe I need to remain silent because my client does not wish me to speak for him.” (T 1/8/2014, 5.) Mr. Dodson added that he did not wish to be sentenced and the following exchange took place. THE COURT: You didn’t move to withdraw your plea by remaining silent. THE DEFENDANT: Yeah, I move to withdraw my plea. THE COURT: You want to withdraw your plea? THE DEFENDANT: Yeah. THE COURT: You just said you weren’t going to say anything. THE DEFENDANT: I need a new lawyer to let me know – I need a new lawyer. That’s what I need, man. That’s what I need. I just didn’t – this man right here is playing. I’m not a law man. I can’t let you know what I – I don’t know what’s going on. John P. Asiello Clerk of the Court September 25, 2017 - 8 - THE COURT: I just want you to understand if you withdraw your plea, that offer will not be made again and it’s not coming back. Do you understand that? (T 1/8/2014, 5-6.) The court again asked Mr. Dodson whether he was withdrawing his guilty plea. THE DEFENDANT: My lawyer’s not speaking for me, so who am I supposed to ask? Who am I suppose [sic] to ask questions to if my lawyer is not – THE COURT: I will take that as a no. I’m going to sentence you […]. (T 1/8/2014, 6-7.) Mr. Dodson was then sentenced pursuant to the negotiated disposition. In People v Porto (16 NY3d 93 [2010]), this Court spelled out its holding in Sides: “where potential conflict is acknowledged by counsel’s admission of a breakdown in trust and communication, the trial court is obligated to make a minimal inquiry” (Porto 16 NY3d at 101). That standard was not met in Porto, where defendant’s blank form motion, along with his attorney’s explanation that defendant was frustrated, was insufficient to trigger the court’s duty to inquire in light of the timing of the request for new counsel (the morning of jury selection) and counsel’s assurance of effective representation. Distinguishing the circumstances in Porto from those in Sides, this Court pointed out that “[i]n Sides, the defendant’s motion for new counsel was acknowledged by the defense counsel who confirmed an apparent rift in the attorney-client relationship.” Here, Mr. Dodson’s attorney told the court that there had been a breakdown in relationship. The record certainly demonstrates a breakdown, especially by the time Mr. Dodson requested new counsel and when counsel said he did not believe Mr. Dodson wanted him to speak on his behalf. Most significantly, in this case there was no assurance by counsel, of his ability to effectively represent his client. In Porto’s companion case, People v Garcia (16 NY2d at 101-102), the defendant, who at no time had expressed discontent with his attorney until the point at sentencing when he learned he would receive an enhanced sentence for violating the condition of the plea agreement, requested new counsel. His attorney, while generally avoiding expanding upon the request, did relate that the defendant had “professed a belief that he had been coerced by counsel into accepting the John P. Asiello Clerk of the Court September 25, 2017 - 9 - guilty plea.” With nothing more to substantiate or expand upon the situation, this Court found the “vague claims were unavailing” and that no additional inquiry was needed (id. at 102). The situation in the present case is very different. Rather than a history of court appearances that fail to give any indication of a problem, counsel asked to be relieved not once but twice, at two different appearances, citing a breakdown in the relationship. And even though counsel, after he first asked to be removed, went to the jail and talked to Mr. Dodson as requested by the court, that meeting and conversation did not repair the relationship, as evinced by counsel’s subsequent request to be relieved, in which he specifically referenced that conversation as the basis for his belief that he should be relieved if Mr. Dodson was planning to enter a guilty plea that day. This was the landscape upon which Mr. Dodson’s request for new counsel was made. Starting at the time defense counsel first asked to be removed due to a breakdown in the attorney-client relationship, continuing to the second time counsel asked to be removed “given [the] conversation” he had had with Mr. Dodson following their most recent meeting at the jail, and culminating at the time Mr. Dodson asked for new counsel to assist him in deciding whether to withdraw his guilty plea. The court never engaged in any inquiry of either counsel or Mr. Dodson, and never obtained an assurance from counsel that he could effectively represent Mr. Dodson. Without an inquiry, there could be no careful evaluation of what was a “seemingly serious request.” Moreover, due in part to the court’s failure to ask any questions, it is unclear whether, at the time of sentencing, Mr. Dodson was represented by counsel or proceeding pro se. Both Mr. Dodson and counsel made statements that indicated counsel did not speak for Mr. Dodson, and Mr. Dodson complained that he had no attorney to assist him and to ask questions of. (T 1/8/2014, 5-7.) Notwithstanding, with no inquiry, the court proceeded to sentence Mr. Dodson – effectively denying his request for new counsel to assist him in deciding whether to accept the court’s offer to withdraw the plea. The court had not even determined whether counsel was still representing Mr. Dodson either at the time it asked if he was withdrawing his guilty plea, or at sentencing. In this case, as in Sides, it cannot be said that the right to the effective assistance of counsel was protected. The court’s summary denial of Mr. Dodson’s John P. Asiello Clerk of the Court September 25, 2017 - 10 - request for new counsel was an abuse of discretion and deprived him of the assistance of counsel as guaranteed under the Federal and State Constitutions. Respectfully submitted, Janet C. Somes Senior Assistant Public Defender jd encs pc: Nancy Gilligan, Esq. Phillip A. Dodson