United States v. Stell

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0858n.06
Filed: November 22, 2006
No. 05-3857
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE
v. ) NORTHERN DISTRICT OF
) OHIO
JOVITO STELL, )
) MEMORANDUM
Defendant-Appellant. ) OPINION
BEFORE: GIBBONS and McKEAGUE, Circuit Judges; and TARNOW, District Judge.*
PER CURIAM. Defendant-appellant Jovito Stell pleaded guilty to being a felon in
possession of a firearm. He was sentenced to 92 months in prison. He contends on appeal that his
plea was not intelligent and voluntary because he was not advised that his conviction constituted a
parole violation that could result in additional imprisonment after completion of his 92-month
sentence. For the reasons that follow, we affirm the judgment of the district court.
I
The material facts are not disputed. Jovito Stell was pulled over by a Cleveland police officer
for speeding on July 22, 2003. As he later explained in a post-arrest interview, Stell had been
_________________________
* The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of
Michigan, sitting by designation.
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United States v. Stell
paroled from prison a mere four months earlier. Being in possession of a 9mm handgun, he was
fearful of being arrested, and so, as the officer questioned him, Stell drove off. After a high speed
chase, which ended when Stell lost control of his vehicle and crashed into a utility pole, Stell was
arrested.
Stell was charged with being a felon in possession of a firearm and ammunition, in violation
of 18 U.S.C. § 922(g)(1). Stell pleaded guilty to the charge pursuant to a plea agreement and was
sentenced to a prison term of 92 months. After commencing his federal prison sentence, Stell
received notice that Ohio authorities had lodged a detainer against him and that he would be held,
on completion of his federal sentence, to answer for his parole violation This ostensibly came as
a surprise to Stell. He timely filed notice of appeal to challenge the validity of his plea-based
conviction. The issue raised on appeal is whether Stell’s plea was invalid because not knowingly
and voluntarily entered into, as he was not advised when his plea was accepted that his conviction
constituted a parole violation.
II
The government first contends the court should not reach the merits of Stell’s claim, but
should dismiss the appeal, because Stell waived his right to appeal. Indeed, ¶ 17 of the plea
agreement clearly provides that Stell waived his right to appeal, except upon grounds not here
applicable. Such a waiver of appeal is generally enforceable – as long as it is made knowingly and
voluntarily. United States v. Swanberg, 370 F.3d 622, 625 (6th Cir. 2004); United States v.
Calderon, 388 F.3d 197, 199 (6th Cir. 2004).
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The enforceability of the appellate waiver thus turns on the very same questions that are
implicated by Stell’s claim that his plea is not valid. If the plea agreement is held to be
unenforceable and the plea invalid because Stell’s decision to plead guilty was not knowing and
voluntary, then the appellate waiver, as part of the plea agreement, likewise falls. Conversely, if the
district court’s failure to advise Stell of the parole violation consequences of his plea does not
invalidate his plea, then Stell’s appellate claim will be denied on the merits for the very same reasons
that the appellate waiver would be enforced. The government’s assertion of the appellate waiver
thus provides no grounds to avoid the merits of Stell’s appellate claim; the voluntariness of the plea
must be examined.
III
After making inquiry of Stell and his attorney at the plea hearing about the terms of the plea
agreement, the district court expressly found that Stell’s plea was “voluntary and intelligent.” It is
undisputed, however, that neither Stell’s attorney nor the district court expressly advised him, when
he entered his plea, that his conviction would constitute a violation of the terms of his parole,
exposing him to the possibility of additional imprisonment. This failure by the district court, Stell
contends, was in violation of the Rule 11 requirement that the court not accept the plea without first
determining that the plea is made voluntarily with understanding of the nature of the charge. See
Fed. R. Crim. P. 11. This voluntariness determination required the district court to ensure that
defendant Stell was informed of all the “direct consequences” of his plea. Brady v. United States,
397 U.S. 742, 755 (1970). Stell contends the parole violation consequences of his plea are “direct
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consequences.” The district court’s failure to inform him of these consequences is said to have been
in error, rendering his plea other than knowing and voluntary, and therefore invalid.
Stell’s claim depends fundamentally on a showing that parole violation consequences
represent direct consequences, of which the district court was obliged to inform him before it
accepted his plea. The claim is unsupported in the case law. None of the cases cited by Stell
specifically supports the proposition.
In response, however, the government cites persuasive authority for the proposition that
parole violation consequences are “collateral consequences,” not direct consequences. In King v.
Dutton, 17 F.3d 151, 153-54 (6th Cir. 1994), the Sixth Circuit explained that the district court has
no obligation to inform the defendant of possible collateral consequences of his plea. A direct
consequence is a result flowing from a plea that is “definite, immediate, and automatic.” Id. at 154-
55. “A collateral consequence is one that ‘remains beyond the control and responsibility of the
district court in which that conviction was entered.’” El-Nobani v. United States, 287 F.3d 417, 421
(6th Cir. 2002) (quoting United States v. Gonzales, 202 F.3d 20, 27 (1st Cir. 2000)).
In El-Nobani, the Sixth Circuit held that the possibility of deportation, even though it was
practically automatic, was a collateral consequence of a conviction. Among other examples of
collateral consequences, like a conviction’s possible enhancing effect on subsequent sentences, the
King court also expressly noted that a defendant need not be informed of the details of his parole
eligibility. 17 F.3d at 153-54. In fact, the Sixth Circuit has specifically held that parole ineligibility,
even though automatic, is not a “direct consequence” of the defendant’s plea within the meaning of
Brady. Brown v. Perini, 718 F.2d 784, 788-89 (6th Cir. 1983).
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Further, in Kratt v. Garvey, 342 F.3d 475, 485 (6th Cir. 2003), the court held that a district
court had no obligation to inform the defendant that his pilot’s license would be revoked as a result
of his guilty plea, because the license revocation was a matter beyond the control and responsibility
of the district court. On the other hand, where suspension of a defendant’s driver’s license was an
automatic and direct consequence of his plea, to be effected by the same court that accepted his plea,
the court’s failure to advise him of this consequence was deemed to render the plea not “knowing.”
Hall v. Gainsheimer, 137 F. App’x 866, 869 (6th Cir. 2005) (unpublished).
In view of these authorities, it is clear that the possibility that Ohio authorities will use Stell’s
instant conviction as a parole violation to extend his term of imprisonment for his earlier state
convictions, being a matter beyond the control and responsibility of the district court, is a collateral
consequence. As such, the district court was not obliged to inform Stell of the parole violation
consequences. While it may represent the better practice for the district court to so advise a
defendant before accepting his plea, neither the Constitution nor Rule 11, under the law of this
circuit, makes such advisement requisite to a finding that a plea is knowingly and voluntarily made.
Moreover, although it is clear that the district court did not advise Stell of the parole violation
consequences, the record evidences a strong likelihood that Stell was well aware the felon-in-
possession offense would be a violation of the terms of his parole. In a post-arrest interview with
police on July 24, 2003, Stell admitted that he tried to escape when he was pulled over because he
had a gun and was on parole. He had been paroled a mere four months earlier and his extensive
criminal history demonstrates that he was no stranger to the criminal justice system. On appeal, Stell
has not attempted to disavow or explain away his post-arrest statement. In fact, nowhere in his
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appellate brief does Stell even aver that he was unaware his conviction would constitute a parole
violation. He contends only that he was not so informed by his attorney or the district court.
Accordingly, Stell has failed to establish that his plea was other than knowing and voluntary.
The district court did not err by accepting the plea. The plea is therefore valid and Stell’s conviction
must be upheld.1
IV
For the foregoing reasons, the district court’s judgment is AFFIRMED.
1
In his appellate brief, Stell identifies one of the issues presented for review as follows:
Whether Defendant’s attorney had a duty to inform Defendant that Defendant’s guilty
plea and subsequent sentence to 92 months in prison was also a parole violation,
exposing Defendant to additional prison time.
The brief otherwise contains no mention of the issue and Stell does not argue the point even
superficially. No matter how liberally construed, Stell’s brief simply cannot reasonably be deemed
to assert a claim of error based on defense counsel’s ineffective assistance. Stell has neither
identified a factual basis nor formulated a legal argument for a putative ineffective assistance claim.
We therefore decline to recognize that any such claim has been asserted. See United States v.
Robinson, 390 F.3d 853, 886 (6th Cir. 2004) (holding that issues adverted to in a perfunctory
manner, unaccompanied by some developed argumentation, are deemed waived); United States v.
Sandridge, 385 F.3d 1032, 1035 (6th Cir. 2004) (same).
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