Unpublished Disposition, 865 F.2d 265 (9th Cir. 1988)

MEMORANDUM^* 

We consider whether Jose Partida-Parra was denied effective assistance of counsel when his attorney failed to appear at the hearing where he withdrew his guilty plea.

BACKGROUND

A grand jury indicted Jose and his brother, Jesus, on drug charges.¹  After plea negotiations in which Jose's attorney, Ruffcorn, and Jesus' attorney, Siddell, participated, Jose pleaded guilty to possession of heroin with intent to distribute and the government dismissed other charges. Inadvertently the government charged Jesus with a misdemeanor to which he pleaded guilty. The government sought to correct its error and moved to set aside Jesus' plea.

In opposition to the government's motion, Siddell filed a brief arguing that Jesus' plea could not be withdrawn. Ruffcorn attached an affidavit supporting the brief. See United States v. Partida-Parra, 859 F.2d 629 (9th Cir. 1988) (finding court lacked authority to set aside guilty plea and remanding for resentencing). Attorney Siddell attended the hearing with Jesus and Jose, but attorney Ruffcorn did not. Siddell opposed the government's motion to withdraw Jesus' plea. When the court granted the motion, Siddell, speaking for both Jose and Jesus, told the court that the two wished to be tried together and asked that it consider Jose's motion to withdraw his guilty plea. The court granted the motion.

At the joint trial, Ruffcorn and Siddell represented Jose and Jesus respectively. A jury convicted Jose on all counts and Judge Gilliam sentenced him to concurrent five-year terms on conspiracy and narcotics charges and one consecutive five-year term on the weapons charge.

ANALYSIS

To demonstrate ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient and that the deficient performance prejudiced his defense.²  Strickland v. Washington, 466 U.S. 668, 687 (1984); United States v. Signori, 844 F.2d 635, 638 (9th Cir. 1988). A defendant may challenge the withdrawal of a guilty plea by alleging ineffective assistance of counsel. Turner v. State of Tenn., No. 87-5891, slip op. at 1 (6th Cir. October 7, 1988) (to be available at 858 F.2d 1201); Beckham v. Wainwright, 639 F.2d 262, 265 (5th Cir. 1981); see Hill v. Lockhart, 474 U.S. 52, 57 (1985) (validity of guilty plea attacked by ineffective assistance claim); Signori, 844 F.2d at 638.

To satisfy the prejudice requirement, the defendant must show a reasonable probability that, but for counsel's errors, the outcome of the proceeding would have been different. Strickland, 466 U.S. at 694. In the context of changing a plea from guilty to not guilty, the defendant must demonstrate that, but for counsel's errors or ineffectiveness, he would have pleaded guilty. Turner, slip op. at 9-10; see Hill, 474 U.S. at 59. The defendant need not always show prejudice. United States v. Perry, 857 F.2d 1346, 1349 (9th Cir. 1988).

Jose suggests without citing authority that, because Ruffcorn failed to appear at a critical stage of the proceedings, prejudice should be presumed. When counsel is wholly absent or prevented from assisting his client during a critical stage there is a presumption of prejudice.³  United States v. Cronic, 466 U.S. 648, 659 n. 25 (1984); United States v. Birtle, 792 F.2d 846, 847 (9th Cir. 1986); accord Siverson v. O'Leary, 764 F.2d 1208, 1215-16 (7th Cir. 1985).

The critical stage doctrine extends sixth amendment protection to "any stage of the prosecution, formal or informal, in court or out, where counsel's absence might derogate the accused's right to a fair trial." Birtle, 792 F.2d at 847-48 (citing United States v. Wade, 388 U.S. 218, 226 (1967)).

Although the time when a defendant pleads guilty is a critical stage, White v. Maryland, 373 U.S. 59, 60 (1963), it does not follow that counsel must be present when the defendant withdraws that plea. Accord Johnson v. Duckworth, 793 F.2d 898, 900-01 (7th Cir.), cert. denied, 479 U.S. 937 (1986) (vast difference between what happens when a defendant pleads guilty as opposed to when a plea is rejected); but cf. United States ex. rel. Caruso v. Zelinsky, 689 F.2d 435, 438 (3d Cir. 1982) (decision to reject plea bargain and plead not guilty critical stage at which right to effective assistance of counsel attaches). We do not decide whether the hearing was a critical stage because Jose's interests were represented.

Jose argues that Ruffcorn's absence from the hearing prejudiced him and that he made an uninformed decision to plead not guilty. To demonstrate prejudice under Strickland, he must show that, but for Ruffcorn's absence, he would have stood by his guilty plea. Turner, slip op. at 9-10; see Hill, 474 U.S. at 59. He offers no evidence that had Ruffcorn been present his own position would have been different.

Indeed, although Ruffcorn continued to represent Jose after he withdrew his plea, he did not question the wisdom of his client's action or the propriety of the court's ruling and did not move to reinstate the earlier plea. His actions indicate beyond question that Siddell communicated correctly Jose's wish to go to trial with Jesus, that Ruffcorn knew of the agreement and approved it. The record is clear and counsel at oral argument conceded that Jesus and Jose wished to be tried together. We find no prejudice.

We presume counsel acted reasonably. Strickland, 466 U.S. at 689; Torrey v. Estelle, 842 F.2d 234, 237 (9th Cir. 1988). Jose complains that Ruffcorn should have attended the hearing where his plea was withdrawn. Because he has failed to show sufficient prejudice, we do not consider whether counsel's performance was deficient. Strickland, 466 U.S. at 697.

AFFIRMED.