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December 4, 2000


The opinion of the court was delivered by: Sweet, D.J.,

  O P I N I O N

Petitioner Elias Guzman ("Guzman"), a prisoner in state custody, brings this pro se habeas corpus action pursuant to 28 U.S.C. § 2254(b). He alleges that (1) his guilty plea was not voluntary, knowing or intelligent due to the fact that he was heavily medicated during the allocution; (2) his trial counsel rendered ineffective assistance in violation of the Sixth Amendment both by making a crucial legal error and by testifying in opposition to Guzman's subsequent motion to withdraw his guilty plea; and (3) the trial court's failure to appoint new counsel violated his due process and equal protection rights under the Fourteenth Amendment. For the reasons discussed below, the case is remanded to the state court for an evidentiary hearing on the motion to withdraw the plea with new counsel.

Prior Proceedings

In 1996, Guzman was charged with first-degree robbery in the Supreme Court, New York County. On March 3, 1997 at a hearing before the Honorable Harold J. Rothwax, Guzman stated that he was unhappy with his attorney, Joseph Ronson ("Ronson"), and wished to be assigned new counsel. One of the grounds for the motion, as Ronson told the court, was that, in bringing a motion to suppress, he had mistakenly conceded that Guzman had possessed a box-cutter on his person, whereas in fact, the box-cutter had been discovered on the ground one or two feet away when Guzman was arrested.*fn1 Judge Rothwax allowed the defense to amend the motion to reflect Guzman's contention that he did not possess the box-cutter, denied the motion to suppress as to the box-cutter for lack of standing, and denied the motion for reassignment of counsel.

The next day, Guzman appeared before the Honorable Michael Gross for a Wade and Mapp hearing. Before the hearing began, Judge Gross inquired whether the parties had discussed possible dispositions. The prosecutor stated that the People had offered Guzman a plea carrying a sentence of nine years, with the People's recommendation to increase to twelve years after the hearing. If convicted after trial, Guzman would have faced a statutory maximum determinate sentence of twenty-five years as a second felony offender.

Guzman then addressed the court and asked to be assigned new counsel due to Ronson's admitted error regarding the box-cutter. "I don't understand. This is my life we're talking about," Guzman stated. Resp. Ex. C at 4. Judge Gross denied the motion, finding that he was bound by Judge Rothwax's legal finding that Ronson was providing "effective, competent, representation" such that "there was no basis at all for challenging the representation [Guzman] received." Id. at 5.

Judge Gross then again asked the parties if a plea was possible. Ronson stated that he and Guzman were not communicating effectively, and the hearing was adjourned briefly. After the parties returned, Ronson stated that he had discussed the possibility of a guilty plea with Guzman. Ronson informed the court that Guzman was suffering from "significant pain" due to carpal tunnel syndrome, for which Guzman had taken "considerable medication," id. at 13-14. Ronson stated that he was "not in position . . . to assess what I believe to be an affect [sic] on his ability to understand the proceedings here" but suggested that Guzman might be amenable to a disposition nonetheless, despite the fact that Ronson had not met with Guzman once during the previous month and that they "weren't done speaking" when the case was recalled that day. Id. Ronson stated that Guzman was interested in pleading guilty if the court would follow the People's request that a sentence of no more than nine years be imposed, and if Guzman could be transferred to the hospital at Riker's Island for treatment, see id. at 15-17. The court agreed, and Ronson stated that Guzman intended to withdraw his plea of not guilty and enter a plea of guilty.

The allocution was not a model of clarity. When Judge Gross first asked Guzman whether he wished to plead guilty, Guzman replied "yes." Id. at 22. But, when asked if he had been given enough time to confer with his attorney, Guzman replied, "Yes. We talked about it. I wanted to know if I could have more time to think about it. I don't know if it's possible. Is it possible?" Id. The court offered to delay the allocution for thirty minutes to give Guzman time to consider this "crucial decision," but Guzman stated that he was ready to continue. When asked if he was satisfied with the advice Ronson had given him, Guzman replied in the affirmative. However, when asked to admit to the substantive elements of the crime, Guzman did not respond, and the allocution was delayed for another twenty minutes.

When the hearing resumed, Judge Gross stated the charge as set forth in the indictment and asked Guzman if the facts asserted therein were true, to which Guzman replied, "No." Id. at 25. After the attorneys informed the judge of the details of the crime, Ronson stated "I spoke to Mr. Guzman. I haven't heard anything in my discussions with him which would require me to tell the Court there was no legal or factual basis for a guilty plea in this case. He wishes you to consider and continue the allocution that started earlier." The allocution then resumed again, and Guzman gave satisfactory answers until he was asked what weapon he used in the commission of the attempted robbery. He replied, "Whatever they have. I don't know. [Pause] A sharp object." Id. at 30.

After ascertaining that this allocution was acceptable to the prosecutor, the judge then went on to advise Guzman of all the rights he was waiving by pleading guilty. However, although Ronson had stated on the record that Guzman had taken "considerable medication," and there had been difficulties in the allocution, id., the judge did not make any inquiries as to the effect of that medication on Guzman before he accepted the plea.

At sentencing on April 7, 1997, Ronson notified Judge Gross that Guzman had prepared a pro se motion to withdraw his guilty plea and for appointment of new counsel. After Ronson summarized Guzman's various grounds for the motion in an extensive colloquy with the judge, the prosecutor derisively dismissed the allegations. See id. at 17-18 ("He can sit here from now until dooms day [sic] as far as I'm concerned and say he's innocent. He's being framed and all the reference of his nonsense, but it's not happening. Now as to his other claims, and for him to somehow say that you [sic] some improper contact between myself and Mr. Ronson is absolutely ridiculous.").

Of the several claims raised in Guzman's motion, Ronson identified the coercion claim as having the most merit, and suggested that Guzman should be appointed counsel given the obvious conflict of interest raised by having Ronson argue his own ineffectiveness. In relevant part, the subsequent exchange is set forth below:

Court: . . . again I'm not trying to intrude on the confidential aspect of your relationship with Mr. Guzman, but are there any other communications that argubly [sic] that would support the claim of coersion [sic] on Mr. Guzman's part by counsel?"
Ronson: No. There's an error in the — his characterization of his exposure after trial, and that appears in two pages of his letter which supports his motion. He faces twenty-five years in prison. That's a huge amount of time. He does not face twenty-five years to life in prison. As for anything else, unfortunately I believe my communication with him are protected by the attorney/client privilege at this point.

Id. at 22.

Guzman was then given the opportunity to state the detailed grounds for his motion on the record, including his claim that he was over-medicated at the time of the plea, that the defense attorney and prosecutor had engaged in improper communications, and that the proof of his innocence was that his carpal tunnel syndrome rendered him physically unable to commit the crime charged. Ronson then stated, "If I was in receipt of information that the defendant was disoriented, and unable to proceed to hearing and trial, I would have made that plain to the Court." Id. at 28-29.

Although the court accepted the proffer that Guzman had been medicated on the date of the allocution, see id. at 29, the ...

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