United States District Court, N.D. Indiana, Fort Wayne Division
REPORT AND RECOMMENDATION
COLLINS UNITED STATES MAGISTRATE JUDGE
the Court are two handwritten motions filed by Defendant
Markell Palmer-Tate pro se, seeking to withdraw his
Plea Agreement. (DE 160; DE 165). The motions were referred
to the undersigned Magistrate Judge by Chief Judge Theresa L.
Springmann on February 14, 2018, to conduct any necessary
hearings and to issue a report and recommendation that
includes proposed findings of fact and recommendations for
the disposition of the motions. (DE 172).
the government filed a response brief to the motions (DE
178), I held a hearing on the motions on March 12, 2018 (DE
181), at which Defendant appeared with counsel. For the
following reasons, and as discussed at the hearing, I
RECOMMEND that Defendant's motions to withdraw his Plea
Agreement (DE 160; DE 165) be DENIED.
Findings of Fact
November 18, 2016, Defendant was charged in a single-count
Superseding Indictment with attempted bank robbery by force
or violence involving kidnaping during a bank robbery, and
aiding and abetting, in violation of 18 U.S.C. §§
2113(a), (d), and (e), and 18 U.S.C. § 2. (DE 33). On
December 5, 2016, Defendant appeared before me and entered a
plea of not guilty to the charge. (DE 54).
21, 2017, the government filed a Plea Agreement (“the
Plea Agreement”) entered into by Defendant and the
government. (DE 91). On July 31, 2017, Defendant appeared
with his court-appointed counsel, Thomas O'Malley, before
me at a change of plea hearing under Federal Rule of Criminal
Procedure 11, and Defendant entered a plea of guilty pursuant
to the Plea Agreement. (DE 95). I then entered Findings and
Recommendation of the Magistrate Judge Upon a Plea of Guilty
after the hearing. (DE 96). On August 18, 2017, after
Defendant waived any objection, Chief Judge Springmann
entered an Order Accepting Findings and Recommendation,
adopting them in their entirety and accepting Defendant's
plea of guilty to the offense charged in the single-count
Superseding Indictment. (DE 101).
October 25, 2017, Attorney O'Malley filed a motion to
withdraw his representation, stating that Defendant had asked
counsel to withdraw and that Defendant believed that the
attorney-client relationship had broken down and was
irreparable. (DE 121). After a hearing on the motion, I
granted the motion to withdraw, and Attorney Patrick Arata
was appointed to represent Defendant, filing an appearance on
November 2, 2017. (DE 126-DE 132).
November 13, 2017, the probation officer filed a draft of the
pre-sentence investigation report. (DE 135). On December 29,
2017, Defendant filed a “notice of no objection”
to the pre-sentence investigation report. (DE 150).
January 26, 2018, six months after the change of plea
hearing, Defendant filed pro se his first
“Motion to Withdraw Plea Agreement for Ineffective
Counsel.” (DE 160). Several days later, Defendant filed
pro se another “Motion to Withdraw from Plea
Agreement by Ineffective Counsel” (DE 165), together
with a letter complaining about his counsel (DE 163) and a
“Motion to File Objections [T]owards Pre-Sentence
Report” (DE 164). The next day, Attorney Arata filed a
motion to withdraw his representation of Defendant. (DE 167).
Chief Judge Springmann referred Defendant's two motions
to withdraw his Plea Agreement to me on February 14, 2018.
March 12, 2018, I held a hearing on Defendant's motions
to withdraw his Plea Agreement, as well as on Attorney
Arata's motion to withdraw representation. (DE 181). The
motion to withdraw representation, however, was not taken up
until after oral argument on Defendant's motions to
withdraw his Plea Agreement were concluded, as Defendant
stated that he wanted counsel's assistance during that
portion of the hearing. The motion to withdraw representation
was granted at the conclusion of the hearing (DE 181), new
counsel was appointed for Defendant (DE 182; DE 183), and
Attorney Robert Gevers filed an appearance on Defendant's
behalf on March 26, 2018 (DE 184).
Arata met with Defendant twice about Defendant's desire
to withdraw his guilty plea. At the first visit, counsel
advised Defendant that he could not withdraw his plea, and
counsel explained his reasons for advising Defendant so. At
the second visit, counsel brought Defendant three recent
cases concerning a defendant's inability to withdraw a
guilty plea, and counsel explained that he would not file a
frivolous motion on Defendant's behalf. Attorney Arata
reported that Defendant did not want to listen to his advice
and sent him insulting letters.
asked Defendant if he wanted to speak to the motions himself.
Defendant presented argument but no evidence. Defendant
argued that he did not think he had been represented
effectively by counsel because his counsel (both Attorney
O'Malley and Attorney Arata) would not do what Defendant
thought should be done, because Attorney O'Malley
purportedly gave him false information under the sentencing
guidelines and pushed him to sign the Plea Agreement, and
because Defendant felt as if he had no choice but to sign the
Plea Agreement. Defendant stated that after he signed the
Plea Agreement, he went through his case on his own and found
things that he thinks will “help him out” that
were not brought to his attention by counsel. Defendant
further argued that he had three different plea agreements,
that he was under distress, and that he did not understand at
the time the sentencing consequences of the Plea Agreement
that he signed. Defendant claimed that the offense level and
enhancements that he pled to during the plea hearing were
“totally different” than what he was told he
would be pleading to.