United States District Court, W.D. Kentucky, Fort Campblell
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO WITHDRAW GUILTY PLEA
LANNY KING, Magistrate Judge.
Defendant is currently on pre-judgment probation pursuant to the Federal First Offender Act (FFOA), 18 U.S.C. § 3607, following a plea of guilty to simple possession of marijuana in violation of 21 U.S.C. § 844(a). Defendant has been charged with violating a condition of his probation imposed under the terms of the FFOA, i.e., refraining from use of any controlled substance.
This matter is before the Court upon Defendant's motion with withdraw guilty plea (Docket #13).
The Court has continued Defendant's probation revocation hearing pending determination of the present motion to withdraw guilty plea.
In light of the combination of issues raised by Defendant, the Court has serious doubt as to whether his decision to plead guilty was fully informed, voluntary, intelligent, and knowing. Accordingly, the Court will exercise its broad discretion to GRANT the motion to withdraw guilty plea. The hearing on the motion is CANCELLED.
Factual Background and Procedural History
On December 15, 2012, Fort Campbell military police (MPs) stopped Defendant's vehicle at the Gate 6 entry point. See Agent's Investigation Report, Docket #13-1. A female minor was in the vehicle with Defendant. MPs obtained permission to search the vehicle and discovered a pipe, or smoking device, in the female's purse, which was in the back passenger's seat. In addition, MPs discovered a small plastic baggie containing a green leafy powder in the right passenger glove box. Docket #13-2. A lab report subsequently determined that the pipe contained residue of Tetrahydrocannabinol (THC). Drug Chemistry Report, Docket #13-3.
Defendant was charged with knowingly inducing, causing, or assisting a minor to engage in criminal activity, to-wit, possession of a pipe with marijuana residue (Count 1), simple possession of marijuana (Count 2), and possession of drug paraphernalia (Count 3). Information, Docket #1.
On June 13, 2013, Defendant entered into a written plea agreement with the United States in which he would plead guilty to simple possession in exchange for dismissal of the remaining counts. Plea Agreement, Docket #4.
On June 13, 2013, pursuant to the plea agreement and in light of discussions regarding a FFOA disposition of the possession count that could result in no conviction, the pro-se Defendant pled guilty to simple possession of marijuana. Prior to taking the guilty plea, the Court read the Information to Defendant, who indicated that he understood the charges.
Contrary to Movant's assertion that he was not afforded the right to assistance of appointed counsel at the change of plea proceeding (Docket #13, p. 3), after initially taking Movant's guilty plea, the Court realized that it had not engaged in a thorough colloquy with Movant regarding the rights he would be waiving by pleading guilty. On its own motion, the Court withdrew the previously-entered guilty plea and advised Movant of his rights, including that "you have the absolute right to an attorney in this case and if you cannot afford an attorney I can appoint one for you." Docket #16-1, p. 9. The following exchange then occurred (p. 10):
Court: Alright now that I have been through all of those rights, how do you plead to the charge of one count of simple possession of marijuana?
It is now apparent that, during the entire change of plea proceeding, the Court failed to inform Defendant that simple possession carries a statutory mandatory ...