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United States v. Simmons

United States District Court, E.D. Kentucky, Northern Division

June 25, 2018

UNITED STATES OF AMERICA PLAINTIFF
v.
TAVO SIMMONS DEFENDANT

          MEMORANDUM OPINION AND ORDER

          David L Bunning, United States District Judge.

         I. Introduction

         This matter is before the Court upon Defendant's pro se motion to withdraw guilty plea (Doc. # 65). The United States having filed its response to the motion (Doc. # 72), the Court will adjudicate the motion without the need for a reply. For the reasons that follow, the motion is denied.

         II. Relevant Facts[1]

         The Defendant was arrested on August 2, 2017 in Florence, Kentucky after agents with the Cincinnati DEA office received a tip from the Riverside, California DEA office that a group of individuals transporting heroin was staying at the Extended Stay Hotel on Turfway Road in Florence, Kentucky. Upon arriving at that location, undercover officers saw a white Volvo semi-truck with Indiana license plates parked in the side parking lot. At approximately 5:20 p.m., agents observed two black males (later identified as defendant Simmons and co-defendant Jason Renfro) exit the side door of the hotel and walk toward the semi-truck. Both men got into the truck and when they emerged, defendant Simmons was wearing a backpack. As they began walking back into the hotel, agents approached Simmons and Renfro. While Renfro stopped at the agents' direction, Simmons attempted to flee and discarded the backpack on the ground. Simmons was arrested a short time later. Located within the backpack was slightly less than one kilogram of cocaine. A search of the semi-truck uncovered another package underneath the lower bunk in the sleeper cab which was found to contain slightly less than one-half kilogram of heroin.

         During his rearraignment, Simmons explained that Renfro drove to Kentucky with another individual named Ricky Powers in the semi-truck, while he flew in to Dayton, Ohio. Simmons also admitted that Powers owed him money from a failed, joint real estate venture, he came here to try to collect it, he knew that Powers sold cocaine and other drugs; that he went out to truck to get Powers's bag at Powers's request; that he knew that the bag contained cocaine when he discarded it and attempted to flee from the DEA agents. [Id.]

         III. Procedural History

         After their arrest on August 2, 2017, Simmons and Renfro were charged in a Criminal Complaint on August 3, 2017 and made their initial appearance on August 4, 2017. Twenty days later they were indicted by the grand jury on August 24, 2017 and charged with conspiracy to distribute and possess with intent to distribute over 500 grams of cocaine and over 100 grams of heroin (Doc. # 15). Following a status conference held on November 22, 2017, and the filing of a pro se “Declaration of Status and Rights” (Doc. # 27), Simmons was ordered to be evaluated for competency (Doc. # 28). Undeterred, Simmons persisted in his pro se filings (See Docs. # 39 & 48). Simmons' pro se notice (Doc. # 39) was denied on February 20, 2018 (Doc. # 41).

         After receiving the competency report, which was filed under seal (Doc. # 46), the Court determined that Simmons was competent to stand trial during a hearing dated March 1, 2018. (Doc. # 45). In her report, Bureau of Prisons' Forensic Psychologist Judith Campbell noted that while Simmons refused to submit to psychological testing, his answers to written questions and their observations of him during the evaluation were sufficient for a diagnosis and competency finding (Doc. # 46). During the evaluation, Simmons acknowledged completing his GED in 1989 and that he had studied law and loves law books (id. at 3). He was also somewhat argumentative and oppositional with the examiner when discussing court proceedings (id. at 6). Ultimately, Dr. Campbell diagnosed Simmons with an unspecified personality disorder, with antisocial and narcissistic features. (id.) Because of this disorder, and his belief that he can interpret the law to his advantage, Dr. Campbell initially had some difficulty in engaging productively with him during her evaluation. Despite these initial hurdles, she ultimately found him to be competent to stand trial. (id. at 8).

         During that March 1, 2018 hearing, the Court appointed a new attorney to represent the Defendant and, on March 2, 2018, attorney Frank Mungo was appointed to represent Simmons (Doc. # 47). Defendant reviewed the discovery with Mr. Mungo and ultimately decided to enter a guilty plea.[2]

         On April 13, 2018, Simmons pled guilty to conspiracy to distribute over 500 grams of cocaine (Doc. # 52). There was no written plea agreement. During the plea, Mr. Mungo described Simmons as competent, telling the Court “[h]e's sharp as a razor blade.” (Doc. # 68 at 8). Mr. Mungo also shared that he and Simmons “get along great.” (id. at 10). When asked about the incoherent filings being mailed from California, Defendant further acknowledged that that pipeline was “off” (id. at 3). Simmons further stated that he hadn't been made any promises from any person as part of his guilty plea (id. at 10-11).

         Simmons further acknowledged that he had previously pled guilty in federal court in Pittsburgh, Pennsylvania (WD-PA) in 2009 to a cocaine conspiracy charge and served time for that offense in federal custody (id. at 11). When asked if he understood he was facing a ten (10) year minimum mandatory sentence as a result of the cocaine quantity here and his prior felony drug conviction, Simmons responded “[w]e've discussed it, yeah. We're good with that.... I'm good with that.” (id. at 12). In fact, during the extensive plea colloquy with the Court, Simmons was very straightforward, saying “gotcha” several times, indicating his knowledge of everything the Court asked him.

         On May 29, 2018, Simmons filed the current motion to withdraw his plea, forty-six (46) days after pleading guilty.

         IV. Analysis

         The Defendant has moved to withdraw his guilty plea, arguing that he “entered an involuntary guilty plea under threat, duress, and coercion due to fraud, misrepresentation and/or deliberate concealment by the government attorneys and court-appointed attorney. (Doc. # 65). In his motion, the Defendant raises two arguments: (1) his attorney, Frank Mungo, advised that his sentencing exposure would be greater (by “an additional ‘TWENTY' years”) if he did not plead guilty; and (2) the government concealed material evidence that it lacked both territorial jurisdiction and statutory authority to proceed. He also continues to assert that the Court lacks jurisdiction, and raises certain prerequisites that only apply in civil cases.[3]

         The withdrawal of a guilty plea prior to sentencing is a matter “within the broad discretion of the district court," United States v. ...


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