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United States v. Fortuna

United States District Court, N.D. Ohio, Eastern Division

October 19, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOHN FORTUNA, Defendant.

          ORDER

          John R. Adams United States District Jugde.

         ORDER Pending before the Court is Defendant John Fortuna's motion to withdraw his guilty plea. Doc. 332. The motion is DENIED.

         “A defendant does not have an absolute right to withdraw a guilty plea and bears the burden of proving that he is entitled to withdraw his guilty plea.” United States v. Ellis, 470 F.3d 275, 280 (6th Cir. 2006). In fact, “‘[w]hen a defendant has entered a knowing and voluntary plea of guilty at a hearing at which he acknowledged committing the crime, the occasion for setting aside a guilty plea should seldom arise.'” Id. (quoting United States v. Morrison, 967 F.2d 264, 268 (8th Cir. 1992)). “A defendant may withdraw a guilty plea ‘after the court accepts the plea, but before it imposes sentence if...the defendant can show a fair and just reason for requesting the withdrawal.'” Ellis, 470 F.3d at 280 (quoting Fed.R.Crim.P. 11(d)(2)(B)). To determine whether the Defendant has met this burden, the Court considers a number of factors, including:

(1) the amount of time that elapsed between the plea and the motion to withdraw it;
(2) the presence (or absence) of a valid reason for the failure to move for withdrawal earlier in the proceedings;
(3) whether the defendant has asserted or maintained his innocence;
(4) the circumstances underlying the entry of the guilty plea;
(5) the defendant's nature and background;
(6) the degree to which the defendant has had prior experience with the criminal justice system; and
(7) potential prejudice to the government if the motion to withdraw is granted.

United States v. Bashara, 27 F.3d 1174, 1181 (6th Cir. 1994) (superseded on other grounds by U.S.S.G. § 3B1.1). “The factors listed are a general, non-exclusive list and no one factor is controlling.” United States v. Bazzi, 94 F.3d 2015, 2017 (6th Cir. 1996).

         In the instant matter, Fortuna contends that he received poor advice from his prior legal counsel and therefore should be permitted to withdraw his plea. A review of the above factors does not support his request.

         1. Amount of Time Between Plea and Motion

         Fortuna pleaded guilty before this Court on October 9, 2015. Fortuna did not seek to withdraw his plea until September 9, 2017. The Sixth Circuit has found proper the denials of motions to withdraw on the basis of delays far shorter than the instant case. See, e.g., United States v. Baez, 87 F.3d 805, 808 (6th Cir. 1996) (upholding the denial of a motion to withdraw on the basis of a sixty-seven-day delay); United States v. Goldberg, 862 F.2d 101, 103 (6th Cir. 1988) (noting that a fifty-five delay supported denial of a motion to withdraw); United States v. Spencer, 836 F.2d 236, 239 (6th Cir. 1987) (indicating that a five-week delay supported denial of a motion to withdraw); United States v. Valdez, 362 F.3d 903, 913 ...


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