US v. Charles Ward

Filing 920100525

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4898

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. CHARLES WARD, a/k/a Chuck, Defendant ­ Appellant.

Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. John Preston Bailey, Chief District Judge. (3:09-cr-00032-JPB-DJJ-1)

Submitted:

April 27, 2010

Decided:

May 25, 2010

Before SHEDD, AGEE, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Charles T. Berry, Fairmont, West Virginia, for Appellant. Betsy C. Jividen, Acting United States Attorney, Thomas O. Mucklow, Assistant United States Attorney, Martinsburg, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Charles with various Ward was drug charged in a six-count Pursuant indictment to a plea

felony

offenses.

agreement, Ward pled guilty to Count Three of the indictment, which charged him with aiding and abetting in the distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2006) and 18 U.S.C. § 2 (2006), in exchange for dismissal of all other counts. Ward was sentenced to 200 months in prison. He now For

appeals, arguing that his trial counsel was ineffective. the reasons that follow, we affirm. On effective appeal, Ward of argues counsel that at his he was plea denied hearing

the and

assistance

subsequent sentencing hearing.

Specifically, Ward argues that

counsel was ineffective for failing "to fully and competently inform Ward of options to accepting a conditional plea agreement which contained a stipulation regarding relevant drug conduct and which contained a provision that required Ward to pay the $100.00 special assessment within forty (40) days following

entry of his plea." The Government argues that Ward's appeal should be

dismissed because he validly waived his right to appeal in his plea agreement. even a valid However, the Government also acknowledges that appellate waiver would not prevent Ward from

appealing on the basis of an alleged violation of his Sixth 2

Amendment right to counsel in proceedings following the guilty plea. See United States v. Attar, 38 F.3d 727, 732-33 (4th Cir.

1994) (finding that, where defendants sought "to challenge their sentences on the ground that the proceedings following entry of the guilty plea -- including both the sentencing hearing itself and the presentation of the motion to withdraw their pleas -- were conducted in violation of their Sixth Amendment right to counsel," "the general waiver of appeal rights contained in this plea agreement" could not be "construed as a waiver of the right to challenge their sentences on that ground"). Therefore, the

ineffective assistance claims raised by Ward are not barred by his appellate waiver. "A claim of ineffective assistance of counsel should be raised by a habeas corpus motion under 28 U.S.C. § 2255 [(West Supp. 2009)] in the district court and not on direct appeal, defense unless counsel it conclusively not appears from the record that

did

provide

effective

representation."

United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999) (internal quotation marks and alterations omitted). To

demonstrate ineffective assistance, a defendant must show that his "counsel's representation fell below an objective standard of reasonableness," and that the error was "prejudicial to the defense" such that "there is a reasonable probability that, but for counsel's unprofessional 3 errors, the result of the

proceeding

would

have

been

different."

Strickland

v.

Washington, 466 U.S. 668, 688, 692, 694 (1984). of a plea agreement, where a defendant

In the context ineffective

claims

assistance, the prejudice prong is satisfied where the defendant shows that "there is a reasonable probability that, but for

counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." 52, 59 (1985). In his first claim, Ward argues that counsel "ignored the provision in the Plea Agreement which required Ward to pay the $100.00 special assessment within forty (40) days of entry of his guilty plea," and "[i]nstead, counsel depended upon a conversation that he had with the Government, in which counsel was informed that Ward would receive the third point reduction for timely acceptance." Ward argues that although he did not Hill v. Lockhart, 474 U.S.

have the financial means to pay the special assessment, he "may well have been able to timely marshal the money to satisfy the assessment from friends and family members." "[t]here is a reasonable have the the probability different to that had the Ward pay He insists that result been the that of the

proceeding advised

would

been

properly special counsel

regarding In

necessity

timely Ward

assessment."

alternative,

claims

should not have advised him to enter into the plea agreement

4

requiring him to pay the special assessment within forty days because counsel knew that Ward did not have the ability to pay. Despite Ward's contentions, his counsel's alleged

ineffectiveness regarding the special assessment is not apparent on the face of the record. First, Ward himself acknowledges

that he did not have the money to pay the special assessment due to his indigency, and states on appeal only that he "may well have been able to timely marshal the money to satisfy the

assessment from friends and family members."

Further, Ward does

not assert that he would not have taken the plea had counsel properly informed him about the special assessment fee. even assuming counsel's actions could be Thus,

considered

unreasonable, there is nothing in the record to demonstrate that Ward was prejudiced by counsel's alleged ineffectiveness. * Ward also asserts that, in the alternative, counsel should have never advised him to take the plea, because he knew Ward was indigent and could not afford the special assessment. However, the record shows that in exchange for taking the plea,

Additionally, the record is replete with instances in which Ward and his counsel were reminded that only upon payment of the special assessment and compliance with all other terms of the plea agreement would the Government move for the additional one-level reduction. As noted, this information was conveyed by the Government and the court during Ward's plea, it was contained within the PSR, and it was expressly noted in the plea agreement.

*

5

Ward had all five remaining counts in the indictment dismissed and he received a two-level reduction for acceptance of

responsibility.

According counsel the deference to which he is

entitled under Strickland, the record does not demonstrate that counsel's standard advice of to take the See plea fell below 466 an objective at 689

reasonableness.

Strickland,

U.S.

(noting that "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable

professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy" (internal

quotation marks omitted)).

Accordingly, because the record does

not conclusively demonstrate that counsel was ineffective, we conclude that Ward's claim is not properly before this court on appeal. In his second claim, Ward asserts that "counsel failed to inform Ward that he could enter a guilty plea and place the burden of proving relevant conduct upon the Government." Ward

now claims that if counsel had informed him that, in addition to going to trial or accepting the plea agreement offered by the Government, he had this third option, "he would not have entered into a plea agreement which stipulated that large quantity of relevant conduct."

6

The record shows that, at the sentencing hearing, Ward stated to the court that counsel "never advised me that I could have [a] relevant conduct hearing about" the drug quantity for which he was responsible. However, there was no response from

counsel on that matter at the hearing, and the record does not contain any affidavit or response from trial counsel indicating what he recalls telling Ward regarding relevant conduct and, if he failed to discuss it with Ward, why he chose not to disclose that information. Thus, any conclusion by this court regarding

counsel's discussions with Ward on the issue of relevant conduct would be premised on surmise or speculation, and we decline on direct appeal to consider Ward's arguments regarding his trial counsel's ineffective assistance. See United States v. Allen,

491 F.3d 178, 191-92 (4th Cir. 2007). Accordingly, we affirm Ward's conviction and sentence. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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