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In re Ponds12/15/2005
hink it would be inappropriate for me to argue the motion since there's things in his motion that . . . .
COURT: All right. Well, Mr. Thompson, I will let you further address me.
The court then asked Thompson why it should allow him to withdraw his plea. Thompson replied that respondent had told him about the plea offer only fifteen or twenty minutes before he pled guilty and that respondent had advised him that if he did not take that offer, he was going "to get life" imprisonment. He then stated that respondent had intimidated him and lied to him and that he did not trust respondent. After hearing from Thompson, the court denied Thompson's request to withdraw his guilty plea, observing:
But I don't think, Mr. Thompson, that you have established your burden to withdraw your guilty plea. I can't withdraw a guilty plea when I went through a half hour questioning with you and you satisfied me on the record that you made a knowing and voluntary plea, and there is absolutely no way under the law that I can withdraw your guilty plea. I can't do it and won't do it. And I am going to deny your pro se motion that you have filed.
The court then proceeded with the sentencing hearing.
At the sentencing portion of the hearing, respondent made representations on behalf of Thompson, and Thompson also spoke on his own behalf. In his allocution, Thompson refused to accept responsibility for his crime, effectively ensuring that his offense would be considered at level 38. The court then found Thompson's offense level to be 38 and sentenced him, at the lowest end of the guideline range, to 292 months.
At the conclusion of the hearing, the court advised that Thompson had 10 days to note his appeal, but no notice of appeal was filed within that time frame. On November 4, 1997, Thompson wrote a letter to the United States Court of Appeals for the Fourth Circuit advising them that he wanted to appeal his case but that he did not have counsel to help him do so. The Court of Appeals treated the letter as a Notice of Appeal.
Although Thompson's letter to the Fourth Circuit also contained accusations that respondent had coerced Thompson into accepting a plea, the Court of Appeals appointed respondent, on December 4, 1997, to represent Thompson in his appeal. On December 24, 1997, the Court of Appeals sent a letter to respondent advising him of his failure to file a docketing statement, transcript purchase order and counsel of record form. On December 31, 1997, respondent filed a motion for enlargement of time to file the docketing statement and subsequently filed it with the court. On January 5, 1998, Thompson sent another letter to the court requesting the appointment of new counsel. Respondent filed a response on January 20, 1998 stating that he had no objection to the request. Thompson was appointed new counsel on February 19, 1998.
II.
Respondent testified before the hearing committee and the committee credited his testimony that: (1) Thompson's claim that respondent coerced him into pleading guilty was baseless; (2) respondent did not interpret Thompson's July 21, 1997 letter as a discharge; (3) respondent believed that Thompson's pursuit of a motion to withdraw the guilty plea could have subjected Thompson to additional charges of perjury and or interference with the administration of justice which could have resulted in an even longer sentence; and (4) respondent decided not to take a position with regard to Thompson's motion to withdraw his plea in order to avoid being called as a witness against his client and to avoid facilitating his client's perjury.
The Board agreed with the hearing committee tha
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