Wednesday, May 30, 2007

Change in Law Makes Defendant Innocent of Two Charges; Federal Courts Tell Pennsylvania to Devise a Solution Other Than Rescission of Plea Agreement

In McKeever v. Warden SCI-Graterford, No. 05-2492, (3d Cir. May 10, 2007), the Third Circuit (“3C”) held that the District Court did not err in granting defendant’s habeas writ, but staying that writ for 180 days and leaving the appropriate remedy to the discretion of the Commonwealth of Pennsylvania, where there was a mutual mistake of law by the parties during the plea agreement process.

McKeever pleaded guilty in 1995 to ten counts of an eleven-count Information against him stemming from his possession and delivery of heroin, including two counts arising under the Pennsylvania Corrupt Organizations Act (“PACOA”). McKeever’s guilty plea was in exchange for the Commonwealth of Pennsylvania’s (“the Commonwealth”) promise not to object to a sentencing scheme that would merge the two PACOA counts and make them concurrent with one of the drug delivery counts. He was sentenced in the Court of Common Pleas to fifteen to forty-two years of imprisonment.

In 1996, the Supreme Court of Pennsylvania held in Commonwealth v. Besch that PACOA did not apply to individuals who operated wholly illegitimate businesses. Falling within that class of persons, McKeever filed a §2254 petition. McKeever alleged that, in light of Besch, he was innocent of the two PACOA counts and as a result his guilty plea should be rescinded.

A Magistrate Judge then issued a Report and Recommendation expressing that McKeever’s petition should be granted, his two PACOA convictions vacated by the Commonwealth and that he be re-sentenced accordingly. McKeever objected, arguing for a rescission of the plea agreement because he did not enter into it ‘intelligently’ and ‘voluntarily.’ However, the District Judge subsequently issued an Order adopting the Magistrate’s Report, granting the writ of habeas corpus and staying its execution for 180 days to permit the Commonwealth to fashion an appropriate remedy. In 2005, McKeever was re-sentenced in the Court of Common Pleas to an aggregate term of fifteen to forty-two years in prison, an identical sentence to the one issued by that court ten years prior. McKeever then appealed the District Judge’s Order.

The 3C first noted that the District Court was correct in granting McKeever’s habeas petition and leaving the precise remedy in the hands of the Commonwealth. The 3C then dealt with McKeever’s argument that under general principles of contract law the plea agreement should be rescinded, as it was based upon a mutual mistake of law. The 3C rebuked that argument by saying that a rescission would only be proper if the mistake had a ‘material effect’ on the plea agreement, and here it did not. The 3C noted that the prosecution of McKeever was “fundamentally based upon his delivery of heroin,” accounting for the unchanged sentence during re-sentencing in spite of the two PACOA charges having been dropped. The 3C further reasoned that “the mistake here...is not of the type that is per se sufficient for avoidance of the plea agreement, as the allocation of future changes is part of the bargaining process.”

A forceful dissent in the 3C argued that the plea agreement was in fact voidable because the mutual mistake was material, and that the only constitutionally sufficient remedy was to withdraw the entire plea agreement. The dissent argued that its position was consistent with precedent from several sister circuits (Bradley (7th Cir.); Barron (9th Cir.); Lewis (10th Cir.)), as well as the Supreme Court’s decision in Bailey. The dissent argued that two major principles are drawn from those cases: “first, where the parties involved are mistaken in the shared belief that a certain conduct is reached by a statute, the guilty plea to the counts arising under the specific statute is constitutionally invalid...; and second, because a plea agreement comes about as ‘a package,’ a misapprehension shared by the defendant, his counsel, the prosecutor, and the trial court as to the reach of the statute constitutes a mutual mistake with material effects on the bargain, so that the entire plea agreement becomes voidable at the petitioner’s request.”

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