United States District Court, S.D. New York
OPINION AND ORDER
S. ROMAN, UNITED STATES DISTRICT JUDGE
December 16, 2016, Defendant, Robert M. Kolaczynski
("Defendant" or "Kolaczynski") was
charged in a one count indictment with violating 18 U.S.C.
§ 1343, wire fraud, and subsequently arraigned. On March
24, 2017, Defendant pled guilty to the sole count of the
indictment. Now before the Court is Defendant's motion,
pursuant to Fed. R. Crim. Pro. 11 (d)(2)(B), seeking to
withdraw his guilty plea or, alternatively, seeking a hearing
to determine if the plea was entered knowingly and
voluntarily. For the following reasons, Defendant's
motion is DENIED.
was charged in a criminal complaint, dated August 23, 2016,
with violating 18 U.S.C. § 1343. On September 1, 2016,
Defendant was arrested and arraigned based on the criminal
complaint. On December 16, 2016, Defendant was indicted on
one count of wire fraud involving in excess of $1.2 million
and subsequently arraigned. On March 24, 2017, following the
exchange of extensive discovery, Defendant pled guilty to the
charge in the indictment, admitted the forfeiture allegations
in the indictment and executed a Consent Order of Forfeiture.
By letter dated July 18, 2017, Defendant sought to
re-schedule his sentencing date on the basis that he
anticipated filing a motion to vacate his guilty plea. On
August 15, 2017, new counsel was appointed to represent the
Defendant. By motion dated October 1, 2017, Defendant seeks
to withdraw his guilty plea on the basis, inter
alia, that it was not given voluntarily.
Rule of Criminal Procedure 11 governs guilty pleas. Rule
11(d)(2)(B) provides in relevant part, that a defendant may
withdraw a plea of guilty after the court accepts the plea
but before it imposes a sentence provided the defendant can
demonstrate "a fair and just reason" for
withdrawing the plea. Although Rule 11 suggests that motions
to withdraw a plea prior to sentencing are to be
"liberally granted, " United States v.
Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992), the
defendant bears the burden of demonstrating that there exist
valid grounds for withdrawal of a plea, United States v.
Schmidt, 373 F.3d 100, 102 (2d Cir. 2004) (citing
United States v. Couto, 311 F.3d 179, 185 (2d Cir.
2002)). Courts must also be mindful that "society has a
strong interest in the finality of guilty pleas, " and
that allowing withdrawal of pleas "undermines confidence
in the integrity of our judicial procedures." United
States v. Maker, 108 F.3d 1513, 1529 (2d Cir. 1997)
(internal citations omitted).
determining whether the defendant has demonstrated a
"fair and just reason" for the withdrawal, the
Court may consider (1) whether the defendant has asserted his
legal innocence in the motion to withdraw the guilty plea;
(2) the amount of time that has elapsed between the plea and
the motion (the longer the elapsed time, the less likely
withdrawal would be fair and just); and (3) whether the
government would be prejudiced by a withdrawal of the plea.
See Couto, 311 F.3d at 185. Courts may also consider
whether the defendant has "raise[d] a significant
question about the voluntariness of the original plea."
United States v. Torres, 129 F.3d 710, 715 (2d Cir.
1997).Whether or not to grant a motion to withdraw a guilty
plea is addressed to the broad discretion of the trial court.
See United States v. Soft, 558 F.2d 1073, 1082 (2d
defendant's mere change of heart prompted by a
re-examination of the government's case or a
re-examination of the potential penalty that may be imposed
is insufficient to constitute a "fair and just
reason" to withdraw a plea. See Gonzalez, 970
F.2d at 1100. Nor is defendant's distrust of the criminal
justice system a basis for withdrawing a guilty plea.
United States v. Grimes, 225 F.3d 254, 259 (2d Cir.
2000). Similarly, a "strategic miscalculation" does
not warrant the setting aside of an otherwise valid guilty
plea. See United States v. Broce, 488 U.S. 563, 571
(1989). The parties' mutual mistake as to the applicable
Sentencing Guidelines range does not render a defendant's
plea voidable where the plea agreement expressly takes into
account that the sentencing court may impose a calculation
different from those stipulated to and which provides that in
that event the defendant would have no right to withdraw his
plea. See United States v. Rosen, 409 F.3d 535, 548
(2d Cir. 2005).
defendant's self-incriminating statements made under oath
at his plea allocution hearing are deemed to "cany a
strong presumption of verity." Blackledge v.
Allison, 431 U.S. 63, 74 (1977). Therefore, a
defendant's subsequent presentation of conclusory
statements that simply contradict what was said during the
plea allocution are insufficient to withdraw a guilty plea.
See Torres, 129 F.3d at 715. In order to prevail on
a motion to withdraw a guilty plea, a defendant must not only
claim innocence but must also proffer evidence which supports
his claim of innocence. See United States v. Piris,
599 F.Supp.2d 205, 214-15 (D. Conn. 2009) (citing United
States v. Hirsch, 239 F.3d 221, 225 (2d Cir.2001)).
defendant seeking to withdraw his guilty plea is not
automatically entitled to an evidentiary hearing unless he
raises "some significant questions concerning the
voluntariness or general validity of the plea. "
Gonzalez, 970 F.2d at 1095. Further, no hearing is
required where the defendant has merely contradicted his
previously sworn admission, makes only conclusory statements
or provides inherently incredible statements in support of
his motion to withdraw his plea. Id. at 1100.
Lastly, the government need not demonstrate prejudice unless
the defendant has made an initial showing warranting the
granting of the application. See Hirsch, 239 F.3d at
225 (2d Cir. 2001).
support of his application, Defendant submits an affidavit
wherein he avers he wishes to withdraw his guilty plea
because he is actually innocent, has always maintained his
innocence in his discussions with his former counsel, and
only pled guilty out of duress. Defendant maintains that he
pled guilty on the advice of and after being pressured to do
so by his former counsel. Defendant asserts he was advised to
plea guilty because he was told he was likely to be convicted
and that a plea would help minimize any potential jail
suggests that at the time of his plea he was preoccupied by
concerns about his wife's compromised health (she suffers
from melanoma and had undergone several surgeries) and
worried about the possibility that his children could be left
without a mother. He further asserts that he was taking
hydrocodone, an opioid medication, to alleviate pain
associated with injuries sustained in an accident, and
suffers from sleep and anxiety disorders. Despite his claim
of innocence and his full disclosure of all of his medical
and family-related concerns, Defendant's attorney advised
him to plead guilty. Defendant purportedly pled guilty after
being coerced by his attorney Upon a review of the record and
Defendant's moving papers, the Court does not find
sufficient reason to grant Defendant's application
seeking to withdraw his guilty plea. In his affidavit in
support of his motion, Defendant merely contradicts the
sworn-to statements he made during his plea allocution
hearing. Although he asserts his innocence, he proffers no
evidence, other than his self-serving statement, in support
of his claim of innocence. See Hirsch, 239 F, 3d at
225 (discussing defendant's failure to show that evidence
demonstrated his innocence on a motion to withdraw a guilty
to his plea allocution, Defendant was placed under oath and
swore to tell the truth. He was questioned at length, and
informed the Court that he was aware of his constitutional
rights, was waiving his rights for the purpose of pleading
guilty pursuant to a plea agreement, and made his guilty plea
voluntarily. His guilty plea was also memorialized in a
written plea agreement which he purportedly read, understood,
and subscribed his signature to.
Defendant informed the Court that he took medication,
hydrocodone, the evening before his plea, Defendant
represented to the Court that he was feeling well, that his
mind was clear and unaffected by the medication, and that he
understood the nature of the proceedings and the criminal
charges brought against him. Importantly, Defendant, under
oath, informed the Court that he was satisfied with his
attorney and the representation provided to him. Defendant
further represented that he understood that he should plead
guilty only if he was in-fact guilty "and for no other
reason." After being informed of his rights,
acknowledging his rights, and being informed that he could
change his mind and not plead guilty for any reason,
Defendant informed the Court that he ...