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United States of America v. Robert L. Carr

March 18, 2013

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
ROBERT L. CARR, THERESA ANN ) CARR,
DEFENDANTS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. Senior United States District Judge

ORDER

This action was scheduled to proceed with sentencing on March 15, 2013. Relevant procedural history is recounted to provide necessary background for the instant order.

A. Procedural History

On February 17, 2012, Defendant Robert Carr entered guilty pleas to Counts 1, 2, and 69 of the Superseding Indictment pursuant to a conditional plea agreement, and sentencing was scheduled for May 18, 2012. (See ECF Nos. 52, 55.) However, at the start of the May 18, 2012 hearing, Mr. Carr's former counsel stated as follows:

Your Honor, this morning Robert Carr, pursuant to Rule 11(d)(2)(B), would like to withdraw the guilty pleas that he entered on February 17th of this year. He cannot afford a private attorney to file the motion for him. He's informed me he would like a different appointed lawyer to help him file the motion to withdraw the pleas to Counts 1, 2 and 69. He would like that new attorney to review the work I did for him, to review the advice that I gave him concerning trial and plea agreement issues, and to determine if Mr. Carr can show a fair and just reason for requesting the plea withdrawal. (Rep. Tr. of May 18, 2012 Proceedings 1:18-2:3, ECF No. 65.) An in camera hearing was held on May 18, 2012 ("in camera hearing") in connection with Mr. Carr's request for new counsel, and Mr. Carr's request for new counsel was granted. (Id. at 6:18-7:3.) Jan Karowsky was substituted as Mr. Carr's counsel on May 30, 2012. (ECF No. 62.)

On July 24, 2012, Mr. Carr filed a "Notice of Motion and Motion to Withdraw Guilty Pleas," in which he states:

This motion will be based upon a Memorandum of Points And Authorities, to be filed if Robert Carr chooses to proceed with the instant motion to withdraw his pleas, the court records and pleadings, and on any evidence and argument that may be presented to the Court at the hearing.

(ECF No. 71.) No memorandum of points and authorities was ever filed in connection with that notice of motion, and the motion was never noticed for hearing.*fn1

A status conference was held on October 5, 2012, during which sentencing was scheduled for December 21, 2012. (ECF No. 74.) On December 10, 2012, the parties filed a "Stipulation to Continue Sentencing and Establish New PSR Disclosure Schedule," in which they state in part:

On February 17, 2012, Robert Carr and Theresa Carr, respectively, entered pleas of guilty, pursuant to written plea agreements with sentencing set for May 18, 2012. On May 18, 2012, Robert Carr appeared in Court and requested new counsel.

Thereafter, on May 30, 2012, new counsel was appointed to represent him -- attorney Jan Karowsky -- in order to advise him relative to the possibility of moving to withdraw his guilty plea. Sentencing was again continued until October [5], 2012, at which time, Mr. Carr reaffirmed his plea of guilty and sentencing was set for December 21, 2012. . . . . [T]he sentencing date . . . cannot be met.

Therefore, after consulting all parties, we are requesting the Court continue the Sentencing Hearing now set for December 21, 2012 at 9:00 a.m. to the date of January 25, 2013 at 9:00 a.m. (ECF No. 75, 1:20-2:13.) At the January 25, 2013 hearing, sentencing was continued to February 8, 2013. (ECF No. 77.)

On February 6, 2013, Mr. Carr filed a "Memorandum" in which he "ask[s] the Court to invalidate Mr. Carr's guilty plea based on constitutional invalidity." (Robert Carr's Mem., ECF No. 78.) Mr. Carr states in the Memorandum: "[b]ased on the [sealed] transcript of the . . . in camera hearing [("sealed transcript")] . . . , [h]e believe[s] the plea is not constitutionally valid." (Id.) The February 6, 2013 Memorandum was not accompanied by a notice of motion, memorandum of points and authorities, or other supporting documentation.

In light of Mr. Carr's February 6, 2013 filing, in which he relied on a sealed transcript to support a motion made on the public docket, the Court issued a lengthy minute order on February 7, 2013, which ordered Mr. Carr to show cause ("OSC") why certain portions of the sealed transcript should not be made public. (ECF No. 79.) A briefing schedule concerning the OSC was established at the court proceeding ...


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