United States v. Scripps, No. 18-2663 (3d Cir. 2020)
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Scripps was convicted of wire fraud for transferring millions of dollars from the bank accounts of his mother and autistic uncle—heirs to the family’s publishing fortune—into his own account. During sentencing arguments, the court repeatedly indicated that Scripps could address the court without personally asking Scripps if he wished to speak. The court asked defense counsel (Dezsi) whether Scripps wished to address the court. Dezsi stated that Scripps did not. The judge later concluded that “[t]here’s nothing in this record from which I could fairly conclude there’s any remorse” and sentenced Scripps to 108 months’ imprisonment, the maximum period of incarceration within the Guidelines range. On appeal, with Scripps represented by Dezsi, the Third Circuit affirmed. Scripps filed an unsuccessful 28 U.S.C 2255 motion, claiming ineffective assistance of counsel, including by failing to argue that the judge erred by not personally inviting Scripps to speak during sentencing. Federal Rule of Criminal Procedure 32(i)(4)(A)(ii) requires a sentencing judge to “address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.”
The Third Circuit reversed. The district court abused its discretion in failing to conduct an evidentiary hearing. It is possible that appellate counsel’s failure to raise Rule 32 error “fell below an objective standard of reasonableness.” The Supreme Court has held that a Rule 32 query, directed towards counsel, does not satisfy the requirement that the court personally address the defendant.
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