v.
MANAIA PEARSON, Defendant.
High
Court of
Trial Division
CR No. 48-97
CR No. 23-99
January 25, 2000
[1] The burden is on an accused to show both that his counsel acted incompetently and that without such incompetence, the case would likely have resulted in a different outcome.
[2] Criminal defense attorneys are presumed to be effective.
[3] An attorney’s legal advice is unconstitutionally deficient if it fails to meet the standard of “a reasonably competent attorney” in a criminal case.
[4]
Advising a client to plead guilty can meet the standard for effective
assistance of counsel if that advice falls within the range of competent
representation under the circumstances. [4ASR3d57]
[5] A defendant cannot successfully claim coercion simply because he pled guilty after relying on counsel’s recommendation.
[6] The fear of receiving a greater sentence does not negate the voluntariness of a plea.
[7] The number and length of meetings between a defendant and his counsel do not alone determine whether counsel rendered adequate advice.
[8] One meeting between a defendant and counsel may be sufficient to afford the defendant an adequate opportunity to understand a plea agreement.
[9] A guilty plea is valid only if it is voluntarily and intelligently made.
[10] A guilty plea is voluntarily and intelligently made if it is done with sufficient awareness of the relevant circumstances and likely consequences.
[11] For a plea agreement to be valid, the government must honor its plea bargain with the defendant.
[12] In determining the scope of a plea agreement, the Court looks to the reasonable understanding of the parties.
[13] Where government had promised not to recommend any specific sentence beyond what was recommended by the probation officer, and then, when probation officer made no recommendation, advocated the maximum sentence for two counts, to run consecutively, prosecutor breached promise that was part of plea agreement.
[14] It is irrelevant whether a breach of the plea agreement is intentional or not, it is a breach nonetheless.
[15] Even where Court is uninfluenced by the prosecutor’s sentencing recommendation, due process requires that the sentence be vacated.
[16] There is no such thing as harmless error in sentencing when a prosecutor has breached a plea agreement.
[17] The proper remedy for breach of a promise to refrain from making a sentencing recommendation is resentencing before judges different than those who imposed the sentence.
[18] Where defendant’s sentence had been vacated and he had received new date for sentencing by different judges, he nonetheless was not [4ASR3d58] entitled reasonable bail prior to the new sentencing hearing based on his guilty pleas and previous attempt to escape the territory.
Before
Counsel:
For Plaintiff, Frederick J. O’Brien, Assistant Attorney General
For Defendant,
Stephen R. Ford
ORDER DENYING MOTIONS TO WITHDRAW GUILTY
PLEAS AND DIRECTING RESENTENCING
On August 9, 1999, Defendant Manaia Pearson
(“Pearson”) moved to withdraw his guilty pleas.
During his sentencing on August 2, 1999, Pearson orally made the same
motion, arguing ineffective assistance of counsel. He made the present motion on this ground for
reconsideration of the Court’s denial of the oral motion on August 2. Pearson also sought our reconsideration of
the judgment and sentence to the same end, arguing breach of the plea agreement
during sentencing by Plaintiff American Samoa Government (“ASG”).
Background
The plea agreement filed in these consolidated actions
on June 11, 1999 was signed by Pearson, Assistant Public Defender Patricia Penn
(“Penn”), Pearson’s counsel at that time, and ASG’s counsel. The agreement provided for Pearson’s proposed
pleas of guilty in CR No. 48-97 to the crimes of attempted burglary in the
second degree, Count 1 of the Information as amended, and unlawful use of a
weapon, Count 3 of the Information; and in CR No. 23-99 to the crime of attempted
flight to avoid prosecution, Count 1 of the Information as amended. Upon the Court’s acceptance of these pleas,
ASG agreed to move for dismissal of the remaining counts in the Information in
CR No. 48-97.
The plea agreement further stated that ASG would limit
its sentencing recommendation in CR No. 48-97 to support of the probation
officer’s recommendation set forth in the presentence report, but that each
side would be free to make its own sentencing recommendation in CR No. 23-99.
The agreement expressly recognized that sentencing recommendations were not
binding on the Court, and that the Court retained complete discretion to impose
any punishment authorized by law.
In addition, the plea agreement provided that during
the Court’s inquiry into the facts of the offenses for the basis of the guilty
pleas, Pearson would testify completely and truthfully about his knowledge of
the removal of ASG’s file in CR No. 48-97 from the Attorney General’s [4ASR3d59] Office. Pearson was also to so testify, if necessary,
at the preliminary examination and trial of any criminal prosecution for the
file removal.[1] The agreement
stipulated that ASG would not prosecute Pearson for any crime he may have
committed in connection with the file removal.
On June 22, 1999, the plea agreement was presented to
the Court. The Court ascertained that Pearson knew the nature of and maximum
punishments for the offenses to which he agreed to enter pleas of guilty,
admonished him of his constitutional rights in criminal prosecutions, and
determined that he was not induced to enter the proposed pleas as a result of
the use or threat of force against his person or of improper promises. We
advised him that sentencing was in the Court’s sole discretion and he would not
be allowed to withdraw his guilty pleas if the Court did not accept counsel’s
sentencing recommendations. Pearson
entered pleas of guilty and testified as proposed by the agreement. We found that his pleas were entered
knowingly and voluntarily, with an attorney’s advice, and upon a factual
basis. We also granted ASG’s motion to
dismiss the remaining counts in CR No. 48-97.
On July 19, 1999, the initial date scheduled for
sentencing, Pearson orally requested that he wanted counsel Penn replaced. We rescheduled sentencing to July 29, 1999
and directed Penn to file a proper motion to substitute counsel. That motion
was filed on July 27, 1999, with Pearson’s handwritten request attached. Sentencing was postponed to August 2, 1999.
On August 2, Pearson separately filed another handwritten motion to substitute
counsel. We denied both motions. Pearson then orally moved to withdraw his
guilty pleas, alleging ineffective assistance of counsel. We denied that motion. The Probation Officer left the sentence up to
the Court without any specific recommendation in the presentence report or at
the sentencing. ASG recommended maximum,
consecutive sentences of five years imprisonment each for the three offenses.
Although ASG’s recommendation was only incidental to our sentencing decision,
we did [4ASR3d60] sentence Pearson
to the maximum of five years’ imprisonment on each of the three offenses, to
run consecutively.
On August 9, 1999, Penn timely moved to reconsider the
judgment and sentence and the motions to substitute counsel and to withdraw the
guilty pleas. She also separately moved
to be replaced as counsel. On August 11,
1999, we granted the motion to substitute counsel and scheduled due dates for
filing briefs on the remaining two issues for reconsideration, Pearson on
August 30, 1999, and ASG on September 8, 1999. Pearson’s option to file a reply
brief was left open. On August 13, 1999,
Pearson’s present counsel was appointed.
Pearson also filed another handwritten motion to vacate the judgment and
sentence. Pearson asked to withdraw his
guilty pleas, again on grounds of ineffective assistance of counsel and added
breach of the plea agreement by ASG’s counsel.
Pearson’s present counsel filed a brief on August 30, 1999 that
addresses these grounds.[2] Our discussion
of the various pending motions will deal with these issues. Arguments were heard in due course on
December 9, 1999, with Pearson and both counsel present.[3]
Discussion
A. Ineffective
Assistance of Counsel
Pearson argues that Penn, his prior counsel, rendered
ineffective assistance as his attorney in several particulars urged in his
handwritten brief filed on August 13, 1999, and his present counsel’s brief
filed on August 30, 1999. He asserts
that he wished to proceed to trial.
However, Pearson claims that he was never able to thoroughly discuss the
case with Penn and was thus deprived of adequate opportunity to develop
possible defenses to the charges against him.
Instead, he states that Penn merely advised him that any judge would
find him guilty and that this advice instilled in him fear of greater
punishment. The situation led to the
plea agreement. Pearson further asserts
that Penn still did not fully advise him on the nature of all the charges
against him, especially those to which he plead guilty, or the plea taking
process, to enable him to make an informed decision about entering guilty
pleas. He claims that [4ASR3d61] Penn
only urged him to plead guilty to lower possible penalties and gain dismissal
of some charges. He also states that
Penn met with him only once after he entered the guilty pleas and did not give
him a copy of the plea agreement until the night before the sentencing. In sum, Pearson claims that he received such
ineffective assistance of counsel that his guilty pleas were effectively
coerced and were not freely and voluntarily made. He therefore argues that he should be allowed
to withdraw his guilty pleas.
[1-3] The
burden is on Pearson to show both that his counsel acted incompetently and that
counsel’s error would likely have resulted in a different outcome. Saucily v.
Tu`ufuli, 6 A.S.R.2d 15, 20 (Trial Div. 1987). In order to overcome the strong presumption
of effectiveness, a defendant attacking counsel’s effectiveness must show
specific unreasonable errors and a reasonable likelihood that absence of those
errors would have changed the result of the case.
[4-6]
Counsel can meet the constitutional standard for effective assistance by
advising a client to plead guilty if that advice falls within the range of
competent representation under the circumstances. Saucily, 6 A.S.R.2d at 20
(quoting United States v. Cronic, 466
[7-8] The
number and length of meetings between a defendant and his counsel do not alone
determine whether counsel rendered adequate advice. One meeting between a defendant and counsel
may be sufficient to afford the defendant an adequate opportunity to understand
the plea. Pearson is an educated college graduate, and the plea agreement in
this case was not complex. He has not
indicated anything his counsel failed to explain that would have made him
change his pleas. Counsel could not have
informed Pearson that one possible outcome of pleading guilty would be a
maximum sentence recommendation by the prosecutor, because as discussed below,
ASG made this recommendation at the sentencing only upon learning of the
Probation Officer’s total deference to the Court to fashion the sentence. In fact, counsel’s failure to tell Pearson of
this possibility was not a failure by counsel at all.
[9-10] A
guilty plea is valid only if it is voluntarily and intelligently [4ASR3d62] made. Brady v.
Furthermore, other evidence indicates that Pearson
entered his plea voluntarily. We fully
explained to him the terms of the plea agreement, the nature of the crimes to
which he was pleading guilty, and the maximum punishment for those crimes. In addition, Pearson was fully advised of his
constitutional rights in criminal prosecutions and that sentencing was in the
sole discretion of the Court. Pearson
was asked about the use or threat of force, and about any inducements other
than the plea agreement to make him plead guilty. Pearson intelligently answered the Court’s
questions and gave every indication that he understood both our questions and
other statements during the plea taking proceedings.
We find no evidence that Penn rendered ineffective
legal assistance. Thus, we will deny Pearson’s motion to reconsider the denial
of his earlier motion to withdraw his guilty pleas on this ground. Once again,
we find that Pearson knowingly and voluntarily entered his guilty pleas, with a
competent attorney’s advice, and upon a factual basis.
B. Violation
of the Plea Agreement
In his handwritten brief filed on August 13, 1999,
Pearson argued generally that ASG’s counsel violated the plea agreement by
failing to limit its sentencing recommendation to the probation officer’s
recommendation set forth the presentence report. In his counsel’s brief filed on August 30,
1999, Pearson amplified that argument by stating that the specific violation
occurred when ASG’s counsel recommended consecutive terms of imprisonment. At the hearing on December 9, 1999, Pearson
added that violation by ASG’s counsel specifically encompassed his
recommendation for the maximum sentence on all counts as well. Pearson asserts that ASG should not have made
these specific recommendations because ASG agreed in the plea agreement to
limit its recommendation to supporting the probation officer’s recommendation
in CR 48-97, and on that basis, he is entitled to withdraw his guilty pleas.
ASG filed no opposing brief, but in oral argument at
hearing on December 9, 1999, ASG counsel argued that ASG had no duty to refrain
from making a sentencing recommendation because the probation officer did not
make any recommendation. According to
ASG, the agreement not to make a recommendation was based on a condition that
never came [4ASR3d63] to pass, the
condition being that the probation officer make a sentencing recommendation.
[11-12] In
the landmark case of Santobello v. New York, 404 U.S. 257, 262
(1971), the Supreme Court found that when a plea “rests in any significant
degree on a promise or agreement of the prosecutor, so that it can be said to
be part of the inducement or consideration, such promise must be
fulfilled.” For a plea agreement to be
valid, the government must honor its plea bargain with a defendant.
In Santobello, the Court held that a sentence
could not stand when a prosecutor promised to make no sentencing
recommendation, but another prosecutor recommended the maximum sentence. 404
[13] By
recommending the maximum sentences for the two offenses in CR No. 48-97, ASG directly
contravened the agreement in this case. ASG may not agree to make no sentencing
recommendation beyond supporting the probation officer’s recommendation for the
two offenses in CR No. 48-97 and then, when the probation officer opted to make
no particular recommendation, recommend a sentence, much less the maximum
imprisonment for these two offenses. ASG
could not go beyond recommending the maximum or some lesser term of
imprisonment for the offense in CR No. 23-99. Despite ASG’s contention, an
agreement to limit a sentencing recommendation to what was stated in the
presentencing report is a promise, not a condition. To allow ASG’s interpretation would violate
the unambiguous language of the plea agreement.
ASG also violated the plea agreement by recommending
consecutive sentences for the three offenses.
A recommendation for consecutive sentences, in practical terms, is a
request that determines the length of imprisonment. See Carbone, 739 F.2d at 47 (violation
when prosecutor agreed to make no sentencing recommendation on two counts, but
then argued for a split sentence on those counts). To recommend consecutive sentences, other
than to run the sentence for the offense in CR No. 23-99, is a request that
also violates the plea agreement. [4ASR3d64]
[14] ASG’s counsel
probably committed the error inadvertently, in likely frustration over
Pearson’s relatively uninformative testimony when the guilty pleas were taken
on June 22, 1999, and the Probation Officer’s unexpected silence in
recommending a sentence. Nonetheless, it
is irrelevant whether the breach was intentional or not.
[15-16] Even
when the Court is uninfluenced by the prosecutor’s sentencing recommendation,
the interests of justice require that the defendant be entitled to relief. Santobello, 404
[17] The
Court in Santobello indicated two possible remedies when a plea bargain
is violated by the government: specific performance of the agreement by
resentencing the defendant or withdrawal of the guilty plea. 404
[18]
Pearson’s bail was revoked due to his flight from
Pearson’s present counsel has permanently departed
Order
1. Pearson’s
motions to withdraw his guilty pleas are denied. However, because of the breach of the plea
agreement by ASG’s counsel, Pearson’s sentence is vacated, and these actions
are transferred to Acting Associate Justice John L. Ward II for
resentencing. Since he is still a flight
risk, and no longer has any right to bail, Pearson shall remain in custody
pending his resentencing.
2. Barry I. Rose is appointed as Pearson’s counsel for
further proceedings in these actions.
It is so ordered.
**********
[1] Contemporaneously with the burglary of the Attorney General’s Office, a burglary of the courthouse resulted in the removal of the court’s file in CR No. 48-97. This action was then pending before Chief Justice Michael Kruse, who requested the assistance of the Public Defender to reconstruct the court’s file. Unfortunately, the Public Defender provided the Clerk of the Court with the entire file of his office. The Public Defender’s file may have included confidential attorney-client communications and attorney work product. Although the Chief Justice did not see the Public Defender’s file and the Clerk made copies only of documents in that file that would normally be part of the court’s file, the Chief Justice was concerned about any appearances of any inappropriate judicial conduct and recused himself from further proceedings in these actions. The case was then transferred to this court.
[2] ASG did not file a brief.
[3] Proceedings after August 13, 1999 became intertwined with various considerations and other proceedings, including: Pearson’s handwritten request for leave to do legal research, which was scheduled for hearing on September 13, 1999 and later taken off-calendar; requests by Pearson’s present counsel for a transcript of the sentencing; unavailability of ASG’s counsel for a time; and the filing of Pearson’s petition for a writ of habeas corpus, which was consolidated with similar writs filed by other inmates in CA No. 116-99, CA No. 117-99, and CA 118-99.