United States v. Austin H. Marks ( 1996 )

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No. 95-3376EM
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Austin Hillman Marks, *
*
Appellant. *
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Submitted: May 15, 1996
Filed: June 7, 1996
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Before FAGG, WOLLMAN, and LOKEN, Circuit Judges.
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FAGG, Circuit Judge.
Having pleaded guilty to traveling in interstate commerce in a
murder-for-hire scheme, Austin Hillman Marks challenges the district
court's compliance with Rule 11 of the Federal Rules of Criminal Procedure.
Marks also claims for the first time on appeal that his trial counsel
failed to provide effective assistance. We affirm.
Marks claims the district court did not adequately question him about
the medications he was taking to ensure that he was mentally competent to
enter a knowing and intelligent guilty plea. See Fed. R. Crim. P. 11(d).
Marks's contention is foreclosed by our opinion in United States v. Dalman,
994 F.2d 537, 538-39 (8th Cir. 1993). After learning Marks had taken some
medications before appearing in court to change his plea on the fourth day
of a jury trial, the district court clarified that the medications
consisted of an antidepressant, pain reducers, and relief for stomach
ulcers. The district court then inquired whether the medications had
affected Marks's ability to understand the plea proceeding, the
plea agreement, and the district court's questions and explanations. Marks
assured the district court they had not. The district court asked Marks's
trial counsel if she had any doubt about her client's ability to enter a
knowing and intelligent plea, and counsel responded that she did not. The
record shows Marks's performance during the plea proceeding was entirely
consistent with his assurance that he was in control of his faculties.
Indeed, Marks neither argued in the district court nor on appeal that he
was under the influence of his medications, that the medications were mind
altering, or that the medications affected his ability to make a knowing
and intelligent plea. Also, the district court had observed Marks's
behavior during three days of trial, including his lengthy testimony as a
witness on his own behalf. Contrary to Marks's complaint that the district
court did not probe deep enough, we conclude the district court's inquiry
was sufficient for the purposes of Rule 11. Id.
Marks also claims the district court failed to satisfy the
requirements of Rule 11(c)(1). According to Marks, the district court
misled him about the sentence he could receive. We disagree. The district
court specifically informed Marks that the maximum statutory penalty for
Marks's crime was ten years. In explaining that Marks's case was covered
by the sentencing guidelines, the district court made clear that whether
Marks would receive a lesser sentence than ten years would not be known
until "a presentence report [was] prepared and [the judge] had a chance to
review the guidelines." In accepting Marks's guilty plea, the district
court was not obligated to inform Marks of the applicable guideline range
or the actual sentence he would receive. United States v. Burney, 75 F.3d
442, 445 (8th Cir. 1996). Again, we are satisfied the district court
discharged its Rule 11 burden.
Finally, Marks claims his trial counsel was ineffective during the
plea proceeding. Ordinarily, a claim of ineffective assistance cannot be
raised for the first time on appeal because the claim requires the
development of facts outside the original record. United States v. Martin,
62 F.3d 1009, 1012 (8th Cir. 1995), cert.
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denied, 116 S. Ct. 1556 (1996). Marks's case is an exception to this rule,
however, because his arguments are governed by the record before us. Thus,
we will consider Marks's claim under the two-part test announced in
Strickland v. Washington, 466 U.S. 668 (1984). See Hill v. Lockhart, 474
U.S. 52, 58-59 (1985).
Marks first contends his trial counsel was ineffective because she
failed to insist that the district court make an adequate Rule 11 inquiry
into the potential effect of Marks's medications on his ability to
understand the plea proceeding. We have concluded, however, that the
district court's questioning was sufficient for the purposes of Rule 11.
That being so, counsel's failure to demand compliance with Rule 11 cannot
be ineffective assistance. See Thomas v. United States, 951 F.2d 902, 904
(8th Cir. 1991) (per curiam).
Marks also contends he received ineffective assistance because trial
counsel failed to tell Marks the ten-year maximum sentence was the only
possible sentence in Marks's case, and if he had known this, Marks asserts
he would not have pleaded guilty. If trial counsel had told Marks what
Marks claims he should have been told, counsel would have misled her
client. As shown by the sentencing transcript, if Marks's objections to
the presentence report had been sustained, the reduced guidelines range
sought by Marks would have permitted a sentence of less than ten years.
Additionally, the Government in exchange for Marks's guilty plea dismissed
another charge that could have increased Marks's guidelines sentence above
the statutory maximum for the charge to which he pleaded guilty. In short,
the record goes against the grain of Marks's claim that "there was no
conceivable reason for [him] to plead guilty." Because Marks has not shown
"there is a reasonable probability that, but for counsel's errors, [Marks]
would not have pleaded guilty and would have insisted on going to trial,"
Hill, 474 U.S. at 59, we reject Marks's ineffective assistance of counsel
claim.
We affirm the district court
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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