Unpublished Disposition, 865 F.2d 265 (9th Cir. 1988)

MEMORANDUM^** 

Stephen Hauser Cason appeals his conviction, following a guilty plea, for converting property mortgaged or pledged to farm credit agencies, in violation of 18 U.S.C. § 658. He contends that the district court erroneously denied his motion to withdraw his guilty plea. We affirm.

* Standard of Review

We review a determination as to the voluntariness of a guilty plea de novo, although findings of underlying facts will be disturbed only if clearly erroneous. Marshall v. Lonberger, 459 U.S. 422 (1983); United States v. Signori, 844 F.2d 635, 638 (9th Cir. 1988). We review a district court's denial of a motion to withdraw a guilty plea for abuse of discretion. United States v. Rios-Ortiz, 830 F.2d 1067, 1069 (9th Cir. 1987).

II

Voluntariness of Guilty Plea

A district court may permit withdrawal of a guilty plea prior to sentencing "upon a showing by the defendant of any fair and just reason." Fed. R. Crim. P. 32(d). See Kercheval v. United States, 274 U.S. 220, 224 (1927). The burden of showing a "fair and just" reason rests with the defendant. Rios-Ortiz, 830 F.2d at 1069. On appeal, the defendant carries the burden of showing that the district court abused its discretion in denying a motion to withdraw a guilty plea. Id.

To comport with the guarantees of due process, a guilty plea must be voluntary and intelligent. Boykin v. Alabama, 395 U.S. 238, 242 (1969). If a district court has reason to believe that a defendant is not mentally competent to enter a plea, it must hold an evidentiary hearing. Sanders v. United States, 373 U.S. 1, 19-20 (1962); Agtas v. Whitley, 836 F.2d 1233, 1235 (9th Cir. 1988) (per curiam).

Cason contends that his guilty plea was not voluntary and intelligent because, when he entered his plea at a hearing conducted pursuant to Fed. R. Crim. P. 11, his mental faculties were impaired by seizures he had recently suffered. A doctor who examined Cason four days after the hearing declared that it was possible that Cason had suffered seizures during his sleep and that " [a]ny seizure suffered within hours of the court appearance would likely have caused mental confusion to some degree." Although Cason suffered a serious seizure three days before the hearing, there is no evidence that he suffered a seizure "within hours of the court appearance."

Cason claims that the dilantin medication he took daily following his seizure three days before the Rule 11 hearing severely impaired his ability to think clearly and understand the consequences of his plea. However, Cason's claims are belied by his own conduct, the observations of witnesses, and the opinion of his doctor.

At the Rule 11 hearing, in response to the judge's questions, Cason stated that the dilantin medication did not affect his ability to understand the proceedings, that he understood the constitutional rights he was waiving, and that he waived those rights voluntarily. It is well established that " [s]olemn declarations in open court carry a strong presumption of verity." United States v. Moore, 599 F.2d 310, 314 (9th Cir. 1979), cert. denied, 444 U.S. 1024 (1980).

The judge noted that he had observed Cason in court a number of times before the Rule 11 hearing and that Cason appeared no different on that day than on previous occasions. Cason's counsel and the prosecutor also believed that Cason was competent and capable of entering a guilty plea.

No doctor examined Cason on the day of the Rule 11 hearing. Cason's doctor declared that, therefore, it was impossible to determine unequivocally Cason's dilantin level or mental condition on that day. When that doctor examined Cason four days after the Rule 11 hearing, he did not find that Cason displayed symptoms of dilantin overdose. In fact, he prescribed an increase in the daily dosage over the dosage he believed Cason had been taking.

The conclusion that Cason was mentally competent during the Rule 11 hearing is further supported by the fact that Cason waited six months after entering his guilty plea before moving to withdraw it. Moreover, he first notified the prosecutor of his desire to withdraw his plea only after the Probation Department issued its sentencing recommendation. A motion to withdraw a guilty plea is particularly disfavored if made after the defendant has received some indication of his likely sentence. United States v. Kay, 537 F.2d 1077, 1078 (9th Cir. 1976).

Accordingly, the district court's factual finding that Cason entered his plea voluntarily and intelligently was not clearly erroneous. See Signori, 844 F.2d at 638. The district court conducted the hearing at which Cason entered his guilty plea in compliance with Rule 11's requirements, and conducted an evidentiary hearing on Cason's motion to withdraw his guilty plea in compliance with Sanders v. United States, 373 U.S. at 19-20. Thus, the district court properly determined that, as a matter of law, Cason's waiver was voluntary and intelligent, and did not abuse its discretion in refusing to permit Cason to withdraw his guilty plea on the ground of mental confusion. Signori, 844 F.2d at 638.

III

Plausible Defense

Cason contends that he is entitled to withdraw his guilty plea for the additional reason that he has a "plausible defense" to the charges. The contention lacks merit.

A district court is obliged to grant a motion for a change of plea based on a ground other than lack of a voluntary or intelligent waiver only when the defendant can establish the existence of newly discovered evidence or other relevant circumstances that did not exist or were unknown to counsel at the time of the Rule 11 hearing. Rios-Ortiz, 830 F.2d at 1069-70. A change of heart, even in the absence of prejudice to the government, will not suffice. Id.

Cason does not allege that his desire to change his guilty plea was based on any newly discovered evidence or intervening circumstances. The factual bases for the defenses asserted in his motion were fully known to his counsel at the time of the Rule 11 hearing. Accordingly, Cason is not entitled to reversal based on the alleged existence of a plausible defense. Rios-Ortiz, 830 at 1069-70.

AFFIRMED.