Opinion
F050482
4-24-2007
THE PEOPLE, Plaintiff and Respondent, v. FRANK JOSEPH CHEEVER, Defendant and Appellant.
Deborah Prucha, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, John A. McLean and Harry Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
OPINION
THE COURT
Before Vartabedian, Acting P.J., Wiseman, J., and Dawson, J.
On November 15, 2005, a single-count criminal complaint was filed charging appellant, Frank Joseph Cheever, with continuous sexual abuse of a child under the age of 14 (Pen. Code, § 288.5, subd. (a)). On March 15, 2006, pursuant to a plea agreement, appellant pled no contest to the charged offense. On April 13, after determining that appellant had expressed the wish to withdraw his plea, the court, without relieving appellants appointed counsel, appointed a second attorney for the purpose of determining whether grounds existed for the withdrawal of the plea. On April 25, that attorney reported to the court he had determined no grounds existed for appellant to withdraw his plea. On May 6, the court sentenced appellant to six years in prison.
Further references to dates of events are to dates in 2006.
Initially, appellants appointed appellate counsel filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d. 436.) Thereafter, this court directed the parties to submit briefing on certain issues. In response, appellant, through counsel, filed a brief in which he argues as follows: (1) by appointing a second counsel to determine whether a basis existed for the withdrawal of appellants plea, the court improperly delegated a judicial function; (2) the court erred in failing to conduct an inquiry into appellants request that he be allowed to withdraw his plea; and (3) the court erred in appointing a second counsel without relieving appellants first appointed counsel. The People essentially concede each of these points. In addition, appellant himself, apparently in response to this courts invitation to submit further briefing, has submitted two letters in which, as best we can determine, he challenges the validity of his plea on constitutional grounds and makes related claims. (See Bradshaw v. Stumpf (2005) 545 U.S. 175, 183 [plea of guilty or no contest is "valid only if done voluntarily, knowingly, and intelligently, `with sufficient awareness of the relevant circumstances and likely consequences "].) We will reverse the judgment on a conditional basis and remand for further proceedings.
BACKGROUND
The report of the probation officer (RPO) recites: "[Appellant] . . . stated he was trying to withdraw his plea. He stated, `They scared me into this. I wasnt in my right mind. " At the sentencing hearing, on April 13, the court, apparently referring to the statement quoted above, stated, "in reading the [RPO] last night, I saw something indicating that [appellant] may wish to attempt to withdraw his plea." At that point, there occurred the following colloquy between the court and appellants appointed counsel, deputy public defender Joel Lueck:
"THE COURT: . . . [¶] Have you spoken with him about that?
"MR. LUECK: I have, Your Honor. It is his desire to litigate that motion.
"THE COURT: Okay. What I am going to do is appoint counsel through IDP for the purpose of looking into the possibility of filing a motion to withdraw the plea. . . . [¶] What Id like to do is perhaps something a little different than weve done in the past. I am not going to relieve the Public Defenders Office at this point in time. I am going to leave them on the case. However, I am appointing counsel through IDP for the limited purpose of exploring the possibility of filing a motion."
Thereafter, the court set a hearing date of May 1 and stated, "I want something from IDP in writing filed on that date, either the motion itself or something indicating that its being withdrawn or that there is no basis for it."
On April 25, attorney Brian McNamara filed a document stating: "There are no legal issues to support filing a motion to withdraw the plea in this case."
On May 1, appellant appeared for sentencing. After the court noted, inter alia, the presence of Mr. McNamara, "whos appointed on the issue of whether or not theres a right to withdraw the plea," and Mr. Lueck, "[appellants] regular counsel for all other purposes," the following colloquy took place:
"THE COURT: . . . [¶] . . . Mr. McNamara, through the Indigent Defense Program, you were appointed to represent Mr. Cheever on the request that he was making to withdraw his plea; correct?
"MR. McNAMARA: Correct.
"THE COURT: And you met with him, you went over everything, and you ended up filing a statement with the Court indicating that, in your legal opinion, there are no legal issues to support the filing of a motion to withdraw the plea in this case; correct?
"MR. McNAMARA: Thats right.
"THE COURT: Okay. Youve explained that to Mr. Cheever?
"MR. McNAMARA: Yes.
"THE COURT: While he may not like that, he understands that?
"MR. McNAMARA: Yes.
"THE COURT: Okay. And for Mr. Cheevers benefit, Ill just share with him that Mr. McNamara and two or three other lawyers quite often get involved in these proceedings with regard to withdrawing a plea. So I feel comfortable with his representation, even though I know nothing about the underlying circumstances of it."
At that point, the court inquired of Mr. Lueck as to whether there was any legal cause sentence could not be pronounced. Mr. Lueck asked for additional time. The court continued the matter to May 9, and on that date, with appellant represented by Mr. Lueck, the court imposed sentence.
DISCUSSION
Appellant first contends, and the People concede, "The trial court incorrectly delegated its obligation to make the determination of whether appellant should have been allowed to withdraw his plea." We agree.
As indicated above, the court appointed Mr. McNamara to "look[] into the possibility of filing a motion to withdraw the plea"; thereafter, Mr. McNamara reported to the court that there were no grounds for such a motion; and the court accepted this representation without further inquiry, even though, as the court stated, it knew "nothing about the underlying circumstances . . . ." By proceeding in this manner, the court improperly delegated its judicial function. As this court stated in People v. Eastman (2007) 146 Cal.App.4th 688, 697, when a court "appoint[s] [second counsel] to determine for the court whether there [is] a legal or factual basis for withdrawal of the plea," it "abandon[s] its own constitutional and statutory obligations to make the ultimate determination itself based upon the relevant facts and law of which the court is made aware by some legally sanctioned procedure. (Cal. Const., art. 6, § 1 [the judicial power of the State is vested in the courts]; Code Civ. Proc., § 170 [a judge has a duty to decide any proceeding in which he or she is not disqualified]; People v. Superior Court (Laff) (2001) 25 Cal.4th 703 . . . [powers of nonjudicial officers are constitutionally limited; findings and recommendations of such officers must be independently reviewed by the court and are not binding until adopted by the court]; Hosford v. Henry (1951) 107 Cal.App.2d 765, 772 . . . [a court cannot delegate its own fact-finding powers].)"
Appellant next argues "the trial court erred in failing to conduct an inquiry into the basis for any request by appellant to withdraw [his] plea . . . ." Specifically, he argues that appellants statement to the probation officer that "[t]hey scared me into [pleading no contest]" was sufficient to "put [the court] on notice that appellant [was raising a claim of] ineffective assistance of counsel" and therefore the court was required to conduct a hearing under People v. Marsden (1970) 2 Cal.3d 118 to determine whether to appoint substitute counsel.
Under Marsden, " ` "When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorneys inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations]." [Citations.] " (People v. Hart (1999) 20 Cal.4th 546, 603.) A defendants request that appointed counsel be relieved and new counsel appointed "trigger[s] [a] duty under [Marsden] to inquire further into the bases for [the defendants] dissatisfaction." (People v. Hill (1983) 148 Cal.App.3d 744, 752-753.) "[T]he court must inquire on the record into the bases of defendants complaints and afford him the opportunity to relate specific instances of his attorneys asserted inadequacy." (Id. at p. 753.) This inquiry is not a pro forma function. (People v. Cruz (1978) 83 Cal.App.3d 308, 316.)
However, appellants statements that "they scared" him and that he "wasnt in [his] right mind" do not lead necessarily to the conclusion that appellant was claiming he had been denied the effective assistance of counsel and/or that he was requesting the appointment of substitute counsel. (Italics added.) On the record before us, notwithstanding appellants use of the word "they," it is at least as likely appellant was claiming the prosecution had pressured him into pleading no contest. Here, where appellant apparently claimed his plea was invalid, but the record reveals virtually nothing regarding the basis for that claim, Marsden is inapposite. Rather, we are guided by People v. Brown (1986) 179 Cal.App.3d 207 and People v. Osorio (1987) 194 Cal.App.3d 183.
In Brown, trial counsel informed the court at sentencing that the defendant wanted to withdraw his plea, but that in her opinion there was no "legal basis" for such a motion, and she was not making the motion for him. (People v. Brown, supra, 179 Cal.App.3d at p. 211.) The defendant told the court that at the time he entered his plea "a death had [him] shook up . . . ." (Id. at p. 213.) He asked the trial court if he could withdraw his plea and obtain another attorney, but the trial court refused to grant either request. (Id. at pp. 211-213.) The appellate court concluded that "the decision to seek withdrawal of a plea of guilty" (id. at p. 215) is one within the defendants power to make even against the advice of counsel and that the defendant had been "deprived of his right to make an effective motion to withdraw his plea" (id. at p. 213). The court remanded with instructions for a Marsden hearing should counsel continue to refuse to bring the motion. (Id. at p. 216.) In so holding, the court stated that it was not suggesting that counsel is required to make a frivolous motion or "compromise accepted ethical standards." (Ibid.)
Osorio followed Brown. There, the defendant stated at sentencing that he wanted to withdraw his plea because "he didnt understand what he was pleading to. " (People v. Osorio, supra, 194 Cal.App.3d at p. 186). Trial counsel indicated there was good cause, but refused, in " `good conscience, " to bring the motion because withdrawal of the plea would result in reinstatement of counts dropped under the plea agreement. (Id. at p. 186.) On appeal, the court determined that the case should be remanded to allow defendant to bring a motion to withdraw the plea. (Id. at pp. 188-189.)
Brown and Osorio teach that a criminal defendant has a right to bring a nonfrivolous motion to withdraw a plea and that he or she has a right to be represented by counsel in bringing such a motion. As the People concede, the courts failure in the instant case to ask appellant to articulate his reasons for wishing to withdraw is plea leaves us with a record on which we are unable to determine what the asserted grounds for withdrawal of his plea were. Thus, we cannot determine whether those grounds are frivolous, or whether appellant is claiming ineffective assistance of counsel in connection with his plea. Under these circumstances, as the People further concede, remand is necessary.
Appellant also contends it was error for the court to appoint a second counsel without relieving the first. The People again concede, and we agree. Our Supreme Court criticized such a procedure in People v. Smith (1993) 6 Cal.4th 684: "We are unaware of any authority supporting the appointment of simultaneous and independent, but potentially rival, attorneys to represent defendant. When a Marsden motion is granted, new counsel is substituted for all purposes in place of the original attorney, who is then relieved of further representation. If the Marsden motion is denied, at whatever stage of the proceeding, the defendant is not entitled to another attorney who would act in effect as a watchdog over the first." (Id. at p. 695.)
Appellant, in a letter he himself submitted to the court, makes three arguments. First, he argues as follows: he suffers from a learning disability; at the time of his plea, he was under the influence of medication; and he was "pressured" and "coerced" into pleading no contest in that his trial counsel told him that if he did not accept the plea agreement, the prosecutor would "fight against [appellant] . . . to give [appellant] a life sentence." As a result of these factors, he suggests, his plea was not voluntary and intelligent, and was therefore constitutionally invalid.
However, the factual bases of appellants argument, i.e., his claims regarding his mental functioning and what his attorney told him, are not supported by the record. Therefore, this challenge to the validity of the plea is not cognizable on appeal. (People v. Williams (1988) 44 Cal.3d 883, 917, fn. 12 ["[t]he scope of an appeal is, of course, limited to the record of the proceedings below"].)
It appears that appellant also argues that his trial counsel and/or the attorney appointed for the purpose of determining whether to file a motion to withdraw appellants plea were constitutionally ineffective in failing to pursue a motion to withdraw the plea. However, "[a] defendant who raises the issue [of ineffective assistance of counsel] on appeal must establish deficient performance based upon the four corners of the record. `If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal . [Citations.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1003.) On this sparse record, appellant has not established he was deprived of his right to effective assistance of counsel.
Finally, it appears that appellant asks that a tape recording of the proceeding at which he entered his plea be made part of the record on appeal. He suggests that a tape recording, unlike the written record, would reveal his "confusion," "emotional stress" and lack of "understanding" at the time he entered his plea. Appellants request goes to his challenge to the validity of his plea and, as indicated above, that challenge is not properly before us. Moreover, this request presupposes that such a recording exists. There is nothing in the record to so indicate. Appellants request is denied.
This matter should be remanded to allow appellant to make a motion to withdraw his plea. If counsel declines to represent appellant, the trial court, as in Brown, "should hold a hearing, attempt to determine the basis of the conflict and decide, in its discretion, whether substitute counsel should be appointed to represent the defendant." (People v. Brown, supra, 179 Cal.App.3d at p. 216.)
DISPOSITION
The judgment is reversed and the cause remanded to the superior court to permit appellant, within 30 days after the remittitur is filed in the trial court, to make a motion to withdraw his plea of no contest in a manner consistent with the views expressed in this opinion. If the superior court grants such a motion, the superior court shall reinstate the original charge, if the prosecution so moves, and proceed to trial or make other appropriate dispositions. If no such motion to withdraw the no contest plea is filed by appellant within the time limit set forth above, or if the motion to withdraw appellants plea is denied, the superior court is directed to reinstate the original judgment.