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United States v. Malone

United States District Court, N.D. Indiana, South Bend Division

December 30, 2014



JON E. DEGUILIO, District Judge.

Defendant Vernado Malone pled guilty to two counts of a three-count Indictment: Count 1 (Wire Fraud, in violation of 18 U.S.C. § 1343) and Count 3 (Aggravated Identity Theft, in violation of 18 U.S.C. § 1028A). On August 13, 2014, the Court held a change of plea hearing, at the conclusion of which the Court accepted Mr. Malone's pleas of guilty. Now before the Court are three motions: (1) a Motion to Withdraw the Guilty Pleas [DE 196], which was filed through counsel; (2) a pro se motion titled "Motion to Withdraw Counsel Due to Conflict of Interest/Ineffective Assistance of Counsel" [DE 199]; and (3) a pro se motion titled "Ineffective Assistance of Counsel" [DE 203].

The Court held a hearing on the pro se motions on November 25, 2014. In essence, Mr. Malone claims that his appointed counsel, Philip Skodinski, provided ineffective assistance. Such claims could require counsel to argue his own ineffective assistance in order to address the withdrawal of Mr. Malone's guilty plea and potentially create a conflict of interest that necessitates his withdrawal from the case. See United States v. Ellison, 798 F.2d 1102, 1106 (7th Cir. 1986); United States v. Caban, 962 F.2d 646, 650 (7th Cir. 1992). At the conclusion of the hearing, the Court indicated that it would consider whether Mr. Malone's allegations, if true, may entitle him to relief from his guilty pleas. Having now considered the matter, the Court determines that even if Mr. Malone's allegations are true, they do not constitute a fair and just reason to withdraw his pleas of guilty. Additionally, because no further evidence is required in ruling on the motion to withdraw the guilty pleas, the Court finds no conflict on the part of Mr. Skodinski. Accordingly, each of the motions is DENIED. [DE 196, 199, 203.]

I. Facts and Procedural History

On July 31, 2014, a plea agreement was filed, in which Mr. Malone agreed to plead guilty to Counts 1 and 3 of the Indictment. [DE 174.] That plea agreement included several provisions; those most applicable to the issues addressed here are: (1) a factual basis to support the defendant's guilt as to both counts to which he was pleading guilty [¶9(b)], (2) a waiver of Mr. Malone's appellate rights [¶9(e)], and (3) a stipulation that the loss amount for purposes of calculating the advisory Guidelines range was $120, 000 [¶9(i)]. A change of plea hearing was scheduled for August 6. However, at the beginning of that hearing, Mr. Malone stated that he desired additional time to consult with Mr. Skodinski before pleading guilty. The change of plea hearing was rescheduled for the following week.

The change of plea hearing was actually conducted on August 13, 2014. [DE 178, 186.] After inquiry, the Court found Mr. Malone competent to plead guilty, with the agreement of both counsel. The Court engaged in a lengthy colloquy with Mr. Malone, covering the factual basis to support his pleas of guilty, the rights he was giving up in the plea agreement, and many of the specific terms of the plea agreement. Relevant portions of the colloquy are quoted below, as necessary. At the conclusion of the hearing, the Court accepted the pleas of guilty, ordered the Probation Office to prepare a presentence report, and set a date for sentencing.

Through counsel, Mr. Malone filed a motion to withdraw his plea of guilty on October 30, 2014. [DE 196.] That motion raised several grounds for withdrawing the plea, including: that Mr. Malone suffers from a low IQ, was not on his correct medication at the time of the change of plea, and had limited independent memory of the crimes charged in this case; that Mr. Malone felt pressured to enter into the plea, even though he had not seen any discovery in the case; that Mr. Malone is concerned that his plea will waive his right to appeal the denial of his motion to dismiss the indictment on speedy trial grounds; that Mr. Malone thought he was agreeing to a "cap" rather than a stipulation to loss amount for Guidelines purposes; and that Mr. Malone believes he has a meritorious defense. [ Id. ] The government responded in opposition [DE 200] and Mr. Malone filed a reply through counsel [DE 201].

Mr. Malone also submitted several pro se motions claiming that Mr. Skodinski must be removed due to either having provided ineffective assistance of counsel or because he has a conflict of interest. [DE 199; DE 203; DE 205; DE 207.] The filings raise a number of allegations against Mr. Skodinski; those relevant to the motion to withdraw the guilty plea are discussed below.

II. Standard of Review

Rule 11 of the Federal Rules of Criminal Procedure governs the Court's acceptance of, and a defendant's ability to withdraw, a plea of guilty. The rule states, in relevant part: "A defendant may withdraw a plea of guilty or nolo contendere:... (2) after the court accepts the plea, but before it imposes sentence if: (A) the court rejects a plea agreement under Rule 11(c)(5); or (B) the defendant can show a fair and just reason for requesting the withdrawal." Fed. R. Crim. P. 11(d). Here, the Court did not reject the plea agreement, so subsection (A) is not available to Mr. Malone. Therefore, unless Mr. Malone can demonstrate a "fair and just reason" for withdrawing his pleas of guilty, the pleas will stand.

Ineffective assistance of counsel can render a plea involuntary. To show ineffective assistance of counsel, a defendant "must show both that the counsel's performance was objectively unreasonable and that, but for counsel's errors, the defendant would not have pled guilty." United States v. Peliti, 576 F.3d 377, 383 (7th Cir. 2009) (quoting United States v. Lundy, 484 F.3d 480, 484 (7th Cir. 2007)). If such a showing is made, then the ineffective assistance is a "valid basis for withdrawing a guilty plea." Id.

III. Discussion

Each of Mr. Malone's arguments in support of withdrawing his plea are addressed, in turn, below.

A. Mr. Malone's Claims Are Disregarded To The Extent They Conflict With His Sworn Statements At His Change of Plea Hearing

Mr. Malone makes a number of claims in support of his attempt to withdraw his pleas of guilty, both through counsel and in his pro se motions. However, the Court must view these claims in light of Mr. Malone's sworn statements made at the change of plea hearing; in this case, many of the current claims conflict with Mr. Malone's previous sworn statements.

The Court is "generally justified in discrediting the proffered reasons for the motion to withdraw and holding the defendant to [his] admissions at the [plea colloquy]." United States v. Patterson, 576 F.3d 431, 437 (7th Cir. 2009) (quoting United States v. Messino, 55 F.3d 1241, 1248 (7th Cir. 1995)). Additionally, "[c]laims of involuntariness or confusion that in the abstract seem like sufficient reasons to allow a defendant to withdraw his plea, or at least look into the matter further, may be insufficient in the context of a record containing substantial indications of voluntariness and lack of confusion." Id. (quoting United States v. Trussel, 961 F.2d 685, 689 (7th Cir. 1992)). In other words, "a motion that can succeed only if the defendant committed perjury at the plea proceedings may be rejected out of hand unless the defendant has a compelling explanation for the contradiction." Thompson v. United States, 732 F.3d 826, 830 (7th Cir. 2013).

Accordingly, the Court rejects several of the grounds raised by Mr. Malone because they are in direct contradiction with statements he made at the change of plea hearing. While Mr. Malone now claims he was "under pressure to enter the plea by certain deadlines, " [DE 196-1], he stated at the change of plea hearing that he felt like he had enough time to discuss his case with Mr. Skodinski. [DE 188 at 10:25-11:2.] Additionally, the Court previously continued the change of plea hearing to provide Mr. Malone with an additional week to consider whether he wanted to plead guilty and to consult with his attorney. No further continuance was sought at the August 13 hearing, nor did Mr. Malone ever suggest that he needed more time to consider whether to plead guilty.

Next, Mr. Malone now claims that he has a low IQ and was not on his correct medication at the time of the change of plea hearing. Therefore, he argues, he did not properly understand the plea agreement or the change of plea hearing. Those statements also contradict Mr. Malone's statements at his change of plea hearing. The Court specifically noted at the change of plea that it was cognizant of the mental health examinations previously received and engaged in a thorough colloquy with Mr. Malone regarding his understanding of the proceedings. Mr. Malone discussed his current and ...

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