United States v. Gary Collyard

Filing

PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Kermit E. Bye and Duane Benton (UNPUBLISHED) [4156173] [13-2795]

United States Court of Appeals
For the Eighth Circuit
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No. 13-2795
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Gary Albert Collyard
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: May 16, 2014
Filed: May 21, 2014
[Unpublished]
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Before WOLLMAN, BYE, and BENTON, Circuit Judges.
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PER CURIAM.
Gary Albert Collyard pled guilty to conspiracy to commit securities fraud and
conspiracy to commit bank fraud. The district court1 denied his motion to withdraw
1

The Honorable Susan Richard Nelson, United States District Judge for the
District of Minnesota.

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his guilty plea. Collyard appeals. Having jurisdiction under 28 U.S.C. § 1291, this
court affirms.
I.
At the change-of-plea hearing, on a Monday, the district court asked Collyard
whether he had taken any illicit, prescription, or over-the-counter drugs within the
last 24 hours. He replied that he was currently prescribed hydrocodone (for eyelid
surgery four days earlier). He said he had not taken it since Saturday, but had taken
only the prescribed amount of Tylenol within the last 24 hours. When the court asked
if the drugs affected his ability to think clearly, Collyard said, “No, Your Honor.”
Defense counsel later said “Mr. Collyard has exhibited very rational, logical thinking
as part of this process here.”
Ten months later, Collyard moved to withdraw his guilty plea due to ineffective
assistance of counsel. Fourteen months after the guilty plea, he moved to withdraw
his plea due to mental impairment from the use of hydrocodone, expressly waiving
the ineffective assistance of counsel claim.
Collyard presented three witnesses at the evidentiary hearing on his motion.
First, his ex-wife testified she stopped helping him take his hydrocodone on the
Saturday before the change-of-plea hearing, and did not know if he took it the day of
the plea. She drove him to the courthouse where he left the vehicle and entered the
courthouse on his own. She returned to pick him up after he called her. Second,
Collyard’s business partner testified he had several lengthy phone conversations with
him between his surgery and the day he pled guilty. The partner, however, could not
remember the substance of the conversations. He said Collyard did not seem like
himself during that time, but the partner also did not know if Collyard had taken
hydrocodone. Finally, a forensic toxicologist testified that Collyard’s prescribed dose
of hydrocodone would have caused impaired judgment. The toxicologist admitted
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that hydrocodone affects people differently, that he also did not personally know
about Collyard’s use of hydrocodone after his surgery, and that if Collyard had taken
it on Saturday, it would not have affected him two days later at the change-of-plea.
The district court denied Collyard’s motion to withdraw his plea of guilty,
finding “neither medication nor residual pain impaired Defendant’s judgment at the
plea hearing on February 27, 2012 . . . .” United States v. Collyard, No. 12-CR-58,
2013 WL 2318141, at *9 (D. Minn. May 28, 2013).
II.
“A guilty plea may be withdrawn before sentencing if the defendant
demonstrates a ‘fair and just reason’ for the withdrawal.” United States v. Mugan, 441
F.3d 622, 630 (8th Cir. 2006), quoting Fed. R. Crim. P. 11(d)(2)(B). “The defendant
bears the burden of showing fair and just grounds for withdrawal.” Id. at 630-31.
This court reviews the denial of a motion to withdraw a guilty plea for abuse of
discretion. United States v. Maxwell, 498 F.3d 799, 801 (8th Cir. 2007). “Whether
[a] plea was knowing and voluntary is a mixed question of fact and law that we
review de novo.” United States v. Gray, 152 F.3d 816, 819 (8th Cir. 1998).
Collyard argues (1) his guilty plea was involuntary due to his use of
hydrocodone, and (2) the district court abused its discretion in concluding that he was
competent and not under the influence of hydrocodone.
As the district court found, Collyard’s plea was voluntary. First, he did not
present evidence that he was actually under the influence of hydrocodone when he
pled guilty. None of his witnesses knew if he took it. Their observations that he was
tired and didn’t seem like himself do not overcome his own sworn testimony that he
did not take it. Further, Collyard’s answers during the lengthy colloquy with the
judge show he fully understood the proceedings. See United States v. Rollins, 552
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F.3d 739, 741-42 (8th Cir. 2009) (finding the consumption of prescription medication
48 hours before a plea would not render it invalid where the defendant told the court
he had not taken any mind-altering substances and demonstrated competence during
the Rule 11 colloquy).
The district court did not abuse its discretion in denying Collyard’s motion.
The district court considered evidence from both the change-of-plea and evidentiary
hearings. The district court properly weighed the evidence and made credibility
determinations, all of which are supported by the record.
*******
The district court’s judgment is affirmed.
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