APPEAL
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Daniel R. Domínguez, U.S. District
Judge]
Rafael
F. Castro Lang for appellant.
Nelson
Pérez-Sosa, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States
Attorney and Mariana E. Bauzá-Almonte, Assistant
United States Attorney, Chief, Appellate Division, were on
brief for appellee.
Before
Torruella, Thompson, and Kayatta, Circuit Judges.
THOMPSON, Circuit Judge.
Appellant
Angel Ortiz-Vega ("Ortiz") was charged with several
counts related to a drug distribution conspiracy in Puerto
Rico. Ortiz was originally represented by court-appointed
counsel, Francisco M. Dolz-Sanchez ("Dolz"), but
after seven months retained private counsel, Luis R.
Rivera-Rodriguez ("Rivera"), because, according to
Ortiz, Dolz failed to provide him with effective assistance
of counsel throughout plea negotiations. Ortiz raised his
ineffective assistance claim at several points prior to
sentencing, claiming that Dolz's lack of adequate
communication cost him a better plea deal. The district court
declined to rule on Ortiz's ineffective assistance claim
prior to sentencing, finding the motion to be
"premature." Ortiz eventually pled guilty to a
higher plea offer negotiated by his new counsel and was
sentenced in accordance with that agreement.
On
appeal, Ortiz argues, inter alia, that the district
court erred by refusing to rule on the merits of his
ineffective assistance claim prior to sentencing. For the
reasons discussed below, we agree with Ortiz and remand the
case to the district court for further proceedings.
Background
In the
summer of 2011, Ortiz was charged in a nine-count superseding
indictment along with over a hundred other co-defendants
allegedly involved in a large-scale drug conspiracy. For his
role, Ortiz was charged with conspiracy to possess with
intent to distribute various controlled substances including
heroin, cocaine, marijuana, Percocet, and Xanax, as well as
the actual possession of those substances with intent to
distribute them, within a thousand feet of a public school in
violation of 21 U.S.C. §§ 841, 846, and 860 (Counts
I-IV). Ortiz was also charged with aiding and abetting others
in the use or possession of firearms during the drug offenses
in violation of 18 U.S.C. § 924(c) and 2 (Count V).
On
August 6, 2012, Ortiz ultimately entered into a non-binding
plea agreement with the government, pursuant to Federal Rule
of Criminal Procedure 11(c)(1)(B), in which he agreed to
plead guilty to the conspiracy and firearms charges (Counts I
and V) with an applicable United States Sentencing Guidelines
("Guidelines") range of 168-180 months on both
counts. See United States v. Torres-Oliveras, 583
F.3d 37, 41 (1st Cir. 2009) (discussing the difference
between non-binding Type B and binding Type C plea
agreements). The journey to reach this point of agreement had
proven long and contentious, with Ortiz switching counsel and
his previous (court-appointed) counsel, his current
(privately-retained) counsel, and the government each making
conflicting assertions as to the facts surrounding
Ortiz's plea negotiations. We necessarily discuss the
facts surrounding Ortiz's plea negotiations, since they
form the basis of his present appeal and assertion that the
district court erred in failing to rule on his ineffective
assistance claim prior to sentencing.
1.
Plea Negotiations
Ortiz
was arrested on the drugs and firearm charges described above
in late June 2011. At that time, Dolz was appointed as his
attorney. Dolz asserts that he first met
with Ortiz in July 2011 to discuss the charges lodged against
Ortiz and to conduct a full client interview. On January 24,
2012, six months after his arrest, Ortiz filed a pro se
"Motion for Lawyer Dismissal" in which he requested
that Dolz be "released from his position on [sic]
[Ortiz's] case" because, according to Ortiz, Dolz
had "acted in a [sic] unreasonable way" and had not
communicated with him since he had been imprisoned. The court
did not respond to Ortiz's pro se motion until six months
after it was filed (after Ortiz had replaced Dolz with a
privately-retained attorney), and the court ultimately
dismissed Ortiz's pro se motion as moot given his
retention of new counsel. The parties dispute how often Dolz
communicated with Ortiz and the substance of their
communications during plea negotiations.
According
to Dolz, after Ortiz filed his pro se motion, Dolz reached
out to the government via email to discuss a possible plea
offer.[1] Dolz asserts that he then visited
Ortiz on March 6, 2012 -- some eight months after first
interviewing Ortiz -- to further discuss Ortiz's case.
Dolz claims that at this meeting Ortiz stated that he would
only accept a plea offer of eighty-four months (or seven
years) for both counts.
On
March 19, 2012, the government offered Ortiz a plea deal well
above seven years, with a Guidelines range of 130-147 months
(or between a little over ten and a little over twelve years)
on both counts. Dolz claims that he visited
Ortiz again on April 7, 2012 to communicate the 130-147 month
plea offer. According to Dolz, he advised Ortiz to take the
offer, but Ortiz rejected it and reiterated that he would
only accept a plea deal of seven years on both counts, or
that he would go to trial. Dolz claims that as soon as he
exited the prison after meeting with Ortiz, Ortiz's wife
called and informed him that Ortiz no longer wanted to
present a counteroffer of seven years to the government as
they had just discussed, but instead wanted to present a
counteroffer of sixty months on the conspiracy charge (Count
I) and wanted the firearms charge (Count V) to be dismissed
altogether.
Accordingly,
on April 12, 2012, Dolz emailed the government Ortiz's
counteroffer of sixty months. The government responded to
Dolz's email with a one-liner: "Rejected. See you in
trial then?" The record is ambiguous as to whether Dolz
ever responded to this rejection of Ortiz's counteroffer,
but it does indicate that Dolz may not have communicated with
Ortiz again regarding plea negotiations until after Ortiz had
retained new counsel three months later in July 2012.
Dolz
asserts that at some point after Rivera had been retained (on
July 24, 2012), but presumably prior to Dolz's last
meeting with Ortiz on the following day (July 25, 2012), he
communicated with the government via email to see if the
130-147 month offer was still on the table. Dolz claims that
the government informed him that the original offer had
expired and that the new offer was 180 months, which the
government had also communicated to Rivera. Dolz also
indicated that the government was mistaken in its statement
that the original offer had expired and claimed that he
believed that the original offer of 130-147 months had not
expired and would not expire until July 31, 2012 -- the date
set by the court for any change of plea.
On July
25, 2012, the day after Rivera filed his appearance in the
case, Dolz claims that he visited and informed Ortiz that
"there was a plea offer outstanding and that July 31,
2012 was the deadline for the [change of plea] motion."
It is unclear from the record whether the "outstanding
plea offer" referenced by Dolz was the new 180 month
offer or the previous 130-147 month offer which Dolz
apparently believed had an expiration date of July 31,
2012.[2] Dolz also asserts that at this final July
meeting, he informed Ortiz that his previous counteroffer of
sixty months had been rejected and that there was nothing
else Dolz could do since Ortiz had retained Rivera to handle
his case. Despite Ortiz retaining new counsel, Dolz contends
that the government continued to communicate with him
concerning Ortiz's case and that on July 31, 2012 the
government sent him a new plea offer of 168-180 months that
was slated to expire on August 1, 2012.
The
government mostly agrees with Dolz's account of plea
negotiations, but also states that after rejecting
Ortiz's counteroffer of sixty months, it understood that
the original 130-147 month offer had been rescinded.
As
expected Ortiz has a very different view of what occurred
during plea negotiations. According to Ortiz, Dolz only
visited him twice: once on April 7, 2012 to communicate the
original 130-147 month plea offer and again after Ortiz had
retained Rivera as his new counsel.[3] Ortiz claims that Dolz
failed to keep him updated concerning plea negotiations and
failed to communicate with him after the government rejected
his counteroffer. In response to Ortiz's assertions, at a
hearing before the district court, Dolz said that he
"saw [Ortiz] as [he] need[ed] to see him" and that
Ortiz was given the information needed regarding his case
despite his assertion that Dolz only visited him twice. At
another hearing, Ortiz countered that he never communicated
to Dolz that he would rather go to trial, and that he always
wanted to plead guilty, but that he was looking for the best
deal. Of course, Dolz denied these contentions.
2.
Plea Agreement
Regardless
of the back and forth alleged by Ortiz and Dolz concerning
plea negotiations, Ortiz did finally enter into a plea
agreement with the government that was negotiated by his new
counsel Rivera. According to Rivera, by the time he got
involved with the case, the government refused to offer Ortiz
the original plea offer of 130-147 months, claiming that its
initial offer had expired. Ortiz alleges that he was faced
with the choice ...