from lexington kentucky represent michael snow sr and i would like to request two minutes for both leagues are your honors this case involves the imposition of a ten year mandatory because of a prior felony drug possession charge against mr stone that he pled guilty to the fte circuit court in two thousand and one that since was enhanced under eight fifty one to ten years there's two challenges to the enhancement portion of this sentence and it's our request that this matter be remanded for either additional proceedings or recent saying in under the guidelines range which would be sixty three to seventy eight months on a star of the grounds for attacking a previous conviction like there's well for sleep or my client because his prior conviction is more than five years old as of the representing him though how do you attack it well the reason i think that this case implicates gideon is because in this is in the record it was both through a proffer that that judge caldwell allowed me to make as well as the testimony of mr snow at syncing he had what we call in the defense bar graduated fee schedule which is you go client come defendant comes to the lawyer lays out what his charges are the lawyer says it's going to cost so much money to retain me that's going to get you through certain stages of the perceiving if we get to a point proceeding where we're not going to get the case resolved and there's go be a trial it's going to be an additional fee at that time mr snow was twenty one years old it was his first involvement with the criminal justice system and i do recognize obviously judge salo the clare burden an issue i've got to overcome is somewhat of a unique case in part because and i've been i've been on the c j panel for many many many years and this isn't the first time i've had a client who has been subject to an enhanced penalty because of a prior conviction but it may be one of the first times i've had a client who not only is subject to an enhanced penalty because of a prior conviction but you've got two factors one he had a retained attorney in the proceedings of the prior conviction and not an appointed attorney and then secondly we've got this terribly misleading confusing in my opinion waiver of rights that the fate circuit court uses the administrators office of the courts in kentucky has a standard motion in are guilty plea change of plea form which contains all the waiver rights for whatever reason and not saying fake counties unique out of one hundred twenty counties in kentucky but it's certainly an exception that they don't use the the  is the form advise the client and he has the right to have the assistance of counsel for defense at all stages of the proceeding including sentencing that he has the right to appeal any conviction and that if he cannot afford an attorney to assist him in his appeal or the cost of an appeal that those will be furnished to him free of charge the no the mentioning of pointed counsel for purposes of appeal and the absence of the right to appointed counsel and other critical stages of the proceeding for a twenty one year old man first involvement with the criminal justice system who has a retained attorney who based upon the figure even has a limited scope of engagement i think it's unique i can't point to your honor's to a case i can try to put it in this context if the kentucky general cimbali were to determine that the funding for the department of public advocacy was limited that public defenders role was up to and including a guilty plea or if the head of the if the public advocate in the state said we're tight on funds and we're going to represent our clients up to and prove guilty plea but not further i think that would violate gideon and mr snow found himself albeit incorrectly misinformed found himself in that box he felt he was in that box i cannot afford to go forward it is in my best interest to accept this plea there's other there's other elements of this plea that would show it was very confusing that perhaps it was not totally inform away is certainly not excuse me and the issue the form the waiver the motion in are guilty plea and and waiver of rights says he has the right to counsel at all stages of the and all critical stages of the proceeding including sentencing it's silent as to circumstances where he cannot perhaps afford counsel and mr snow testified for the district court that he was of the impression that once you pay for a without the assistance of a lawyer do they know he was represented throughout the stages so there's no getting in the issue here well the reason we believe it it bleeds over to get in is because his lawyer was engaged on a on a basis that took him up through an including a guilty plea in middle eve my client was misinformed the problem was his misperception was that's what i'm well he he testified at the  aside his testimony which you know one could say self serving actively what misinforms him the ambiguity of the waiver of rights that oaths and so i guess your argument is that the it says the form says he has the right to counsel throughout but it you're saying it all minutes to say that the state will pay for the lawyer if you cannot afford one yes and which is what randall would require when you're being advised of your right ok but you know i mean if we look at the plea hearing correct me if i'm wrong i mean the state judge said to him you have the right to be represented by an attorney if you cannot afford an attorney one will be appointed to represent you he did judge can silent record but it's an ambiguous record i don't know what sam figures i mean it be one thing if the form affirmatively said something to the effect that you have to pay for your own warrior and then we'd have a conflict between the form and the judge here we have a form saying something that's totally correct perhaps not as comprehensive as you would like but then we have the judge just you know speaking to the defender right then and there you know we want to prove if you can afford why we have pe it's understand what i can offer response that is and i mention this at the district court the written form is is gone through between the defendant and defense counsel it's not under the time constraints of standing up at a podium like this in front of a circuit judge pleading guilty to felony it's you've got the opportunity for deliberate thought you got the opportunity to ask questions the lawyer has the opportunity to explain things and that i just think that the judge clark's comment walk around act i think was not enough at least in my client's mind to make this an informed and intelligent guilty plea wasn't enough to disabuse him of his misunderstanding his misperception i've got other organs related to holder mr lewis is case addresses those quite frankly his brief addresses a much more thoroughly than mine does i'll address those bottle as i see them out of time here all right  procedural errors that occurred below there are however some important factual legal distinctions between the two cases namely when you look at the gravity versus harshness test that applies to mr lewis a sentence his ten year mandatory minimum sentence is grossly disproportionate to the crime that was committed secondly the crime was exaction with intent to destroy technically that is what he was guilty of although the factual particulars of that is that he received a fifty dollar look  he as a result of someone else's drug transaction but your best case because of some of these cases are are way out of proportion but the supreme court says are ok and they're not a violation of the eighth amendment that's absolutely correct judge seiler the best case here is th or the supreme court reversed a lifetime sentence for passing bad checks and that sentence was enhanced from five years to life based on prior recidivism and that recidivism included six prior felonies most of which were nonviolent one of which included a burglary and the court said no penalty is per se constitutional now it's absolutely true that this court has always rejected eight the moment proportionality child challenges to mandatory minimum sentences but it's also true that there is no case that i'm aware of where someone is serving ten years time for someone else's crime and if there's any case in which a mandatory minimum sentence is grossly disproportionate to the crime that was committed important case because in young the recidivism really was the issue there you had this court upholding a fifteen year mandatory minimum sentence for a felon in possession conviction and the court looked at the recidivism which included eleven previous violent felony charges for convictions for burglary and aggravated burglary the court also said in this is that seven sixty six after six twenty seven recidivism does not render any sentence constitutional the crime still must be sufficiently grave in combination with the recidivism and so here the recidivism includes two prior convictions two thousand seven conviction and two thousand and nine conviction for possession of less than two grams of crack cocaine each those quantities are less than a sugar packets sample they do not reflect distribution or dealing they reflect only personal use and so when you combine his recidivism those two relatively insignificant convictions with the crime in this case that's where you get the gross disproportionality of a ten year sentence for receiving fifty dollars for someone else's crime well i mean are you challenging the district court's determination that mr lewis is responsible for the forty to forty seven grams of cocaine we're not challenging that in so far as mr lewis is guilty of brokering that deal and technically he's guilty he pled guilty because he is guilty guilt technical guilt under the statute however does not automatically render a sentence constitutional well i mean the sentence and quantities were lower about twenty grams about twenty seven grams of crack as opposed was a cocaine base in this case it was it was in him as opposed to forty two and forty seven and we specifically said that didn't did not violate the eighth amendment says it's absolutely true your honor that the key distinction characteristic though is in blue it the defendants were the actual traffickers they were the they were in this case the traffickers the gentleman in brother love they were the brother loves of this case here mr lewis introduced the confidential informant to brother love and brother love in the top national form and engage in the transaction so i mean does the constitution require that we treat brokers you know more leniently than traffickers i mean is that a you know constitutional because the eighty minutes proportionality principle doesn't require that in the young this court said you have to look at this the gravity of the facts of the crime versus the harshness of the sentence for the gravity of this crimes mr lewis harms very low he introduced to people he brokered a deal he didn't he didn't handle the drugs he didn't receive the money and went for the he  received a ten year sentence where his brother love received a seven year sentence about it and another kind of a case like a lookout for a bank robbery just stands out sad looks around and watches for the police but somebody is killed in the bank robbery would be fair to give them a ten year sentence as a conspiratorial and something like that said sad drugs you know just on a given your example it may be given the involvement of that particular person in  that case here the pre sentence report indicates only and this kid my this is a seventeen months to an operation and seventeen months they have one instance involving mr lewis when he received a phone call from the confidential informant lewis who is not a drug dealer did not have any drug to sell only knew that brother love did and so he introduced him to throw up and they conducted their transaction now on when you combine that with the two very very minor prior convictions that are used to enhance a sentence that's where you get the gross disproportionately mr lewis has been in federal prison for since october twenty fifth two thousand and twelve that's one thousand one hundred seventy six days at fifty dollars that's about four point two cents per day and dropping to every day what is the legal by which he is held responsible for the fall forty two and forty seven grams is that a sentencing guidelines provision is a conspiracy it's conspiracy under section eight oh ok so i mean but so you know your argument really have to be that that conspiracy provision is unconstitutional violates amendment as applied here because otherwise if he's dealing you know blewit is the end of the argument that's absolutely correct your honor as applied here yes that provision violates the eighth amendment because it required the district court judge to do to enhance his sentence to ten years under section eight fifty one there's no there's no discretion there so it as applied just like in seoul and the helm as applied it violates the at the moment and so we respect her request remain for resent offenders i mean mr lewis pled guilty to being part of a conspiracy and the he would have had to sit up in court and said yes when he brokered the deal he knew he was part of this conspiracy to set up the buyer in the cellar so that forty seven grams of crack cocaine could be distributed so just that one deal right yes transact yes yes yes but you know the important thing is that the court this court has said and i can the young case that what's important in these me and tory cases where someone is being received receiving a higher since is because they're criminal history of course and although he had that didn't matter here right with that that's what game the ten years the fact that all the prior felony loss the quantity yes yes so he had that's what through to the ten years which is what they're objecting to opposition priors in this case he had three prior drug felonies in kentucky into a three prior convictions and two were felony possession convictions but he also had a ton of other convictions and he's got lines he had twelve criminal history points so his god line range was it wasn't even that much lower than the mandatory minimum so i think it was the range again he is the top of his range i think was fifteen months below the one twenty so it would have been you know eighty something to ninety something to them like that so you know based on his criminal history the advisory range even if the mandatory minimum didn't apply the court could here's a god it's actively on parole and what's he doing he's getting more involved in criminal activity and he's had over a drug age i think it was judge yeah so he would so you know that's something that very it's very offensive to the court her is supposed to be meeting with his parole officer and following along yet he's getting involved in drug transactions again so and the a fifty one collateral tack that is for close eight which says to succeed once you know because i think what what snow is basically trying to do is he's trying to formulate a collateral attack is if it's within the five years  so this conviction is more than five years old you can't attack it unless you can show you didn't have counsel that's what reid says it's not all these other things about what the form says and all this he had counsel and i think i've effects all the rest of it question in those cases year range where you can do those kind of things if it's if it's less than five if the conviction is less than five years old which kind of things oh that you know to to go through and try to attack on other grounds beyond did you have counsel you know like was it  involuntary plea in the you know if it's less than five years the law the congress has said it's less than five years you can bring other things up but with if it's past five years if you had counsel the in you can't you can't challenge it it's whether you had counsel at the as to that last point judge careful and subjective versus objective one thing that i don't think anybody in this room would dispute is that in order to be constitutionally ballad a plea has to be not only knowing  has to be voluntary but that's within five years i mean that's exactly what i mean i'm thinking along the same lines you know i mean you're making an argument that subjectively he thought he would not necessarily be able to have counsel at trial and so it's not voluntary right but isn't voluntary in a something that you must challenge within five years well i think if the if the reason it's not voluntary if the reason it's arguably not voluntary is because he felt he only had one option and that's not really it's not really a voluntary decision if you're compelled to do it and the option is to proceed without a lawyer then i think this case is is very unique giving the confluence of these factors and i understand  the court doesn't have the same problem with the plea colloquy combined with the written plea agreement that that mr snow has but i think if the if the if the issue that are you makes it involuntary is i didn't think i'd have counsel i do think sentence more than five years old under age fifty one it has to be a plea taken in violation of getty and it's our contention that because of the misunderstanding he had bolstered by the confusing nature of the written plea agreement which we believe was not rectified by judge clark's very good work from the bench that that this this implicates the violation of duty and as to the disproportionality again mr lewis is counsel does an able job on that the only other point i would make is that the district court really didn't go through any analysis as to whether mr snow sentence was what wasn't  unduly harsh and we would think it a minimum she just took the position that the holder memorandum affords mr snow no avenue of relief but she did undertake actual analysis that we were making which is the holder memorandum isn't the relief workers were going just real quickly i want to explain that yes mr lewis was on parole at the time of his arrest but he was on parole for possession convictions the two prior convictions in two thousand and seven two thousand nine were for possession quantities again one point nine grams of crack cocaine and one for that felon and the two thousand and nine one would qualify as a drug felony the two thousand and seven one however was entitled to a presumption of probation and so there in mr lewis received probation for that he did not receive jail time he did not receive more than a year of jail time which is what would be required to be a drug felony under twenty one u s c section eight o two so he would be able to challenge that conviction under a fifty one b as a drug felony to enhance his sentence because it would not qualify as a drug felony and so it's important to understand that the two convictions they were used to enhance his sentence were based didn't involve trafficking this is not a repeat drug trafficker this is a street level user who got caught up in someone else's drug transaction now to clear up any confusion about the age fifty one issue and the timeliness of challenging them mr lewis had two convictions one in two thousand seven and one in two thousand and nine the district court did not follow the a fifty one b procedures when hansen has sentenced to ten years because she didn't engage in the colloquy in the government and season page twenty of their brief ask him to affirm or deny the convictions or explain to him the consequences of failing to do so had she done so would be able to deal with a very different record here particularly as it deals with the facts of the two thousand and nine conviction and the defense of an conviction even though the two thousand and seven conviction is beyond the five year limitations period that limitations period in a fifty one only applies to attacking the validity of a prior conviction it in there are two different ways under a fifty one deed to attack a park conviction one way is to attack the validity of it the other way is to attack the conviction as it's alleged in the p s r and so mr lewis would have been attacking the to set up two thousand and seven conviction as the ledge as a drug felony in the pre sentencing report that is not beyond the five year limitations period and so because you have a sentence that was challenging it because it's not a felony now as opposed to being a felony here's my understanding when he pleads to this it was punishable by more than a year and he pleads to the two thousand seven hundred u s yeah that was entitled to a presumption of probation under kentucky law at the time he pled at the time he pled  into thousands of i thought the law changed in the meantime and you are relying upon the change in the law it's my understanding when he he he received probation he received three years probation for the two dozen seven conviction he was key did not receive any jail time at all ok but i mean if the test under eight zero to forty four is whether it's all by more than one year it was right there's a presumption but you can still get you know sent away for multiple years at the district court follow the eight fifty one b procedures however mr lewis would have been entitled to challenge that and he would have been in total to a hearing where the court would have had to if found by a reasonable doubt that it punishable by up to a year and was therefore a drug felony but if we look at the statute itself it makes clear it was punishable by year more than a year if i didn't i don't i don't think that has been fleshed out by the case law certainly it was entitle to a presumption of probation sure but even so it is not that nobody could be sentenced to one or more years or more than a year