Alex Cotto v. Warden (2010)

HABEAS HEARING

THE COURT:  Good morning everyone.   All right.   This is the matter of Cotto v. Warden, Docket No. CV08-4002332.   We're conducting this hearing in a closed courtroom because of the nature of the proceeding, which is a motion for permission to withdraw as counsel based on ethical considerations.

Counsel, if you'd just state your name and identify yourself for the record.

ATTY. TODDY:  Good morning, Your Honor;  Attorney Melissa Toddy representing the petitioner, Mr. Alex Cotto.

THE COURT:  And Mr. Cotto is present also.   All right.   Mr. Cotto, based on the motion to withdraw that I received, I have some questions for you.   One question is, you understand that based on the allegations of ineffective assistance that you make against Attorney Weingast, if the Court hearing your case agreed with you, the remedy they would have-that would be available is to vacate the guilty pleas.   Do you understand that's all that the Court can do.   The Court can't reduce the sentence.   It can just restore you back to the place you were before the defective conduct occurred.   All right.   Do you understand that?

THE PETITIONER:  That's not-that's not what I was trying to get.

THE COURT:  I understand that may not be what you want, but that's all the Court can give you.   And that's a part of the problem that your attorney is raising here, that you're asking her to go forward to maintain a case that you're asking for something the Court can't provide for you;  and that's ethically something she can't do.

If the Court-if you were to win, if you were to prevail and your guilty pleas were vacated, you'd be back to go, and you'd be facing whatever charges you were facing when the guilty plea was entered;  and then you could engage in whatever negotiations with the state's attorney that the state's attorney was willing to engage in.

And you might have a better result;  you might have a worse result.   They may not be willing to do anything.   You might have to face trial.   They might be willing to do things.   You might be acquitted of charges at trial.

I don't know what the outcome would be, but that's what would happen.   That's all the Court can provide you.

The two claims you're making is that Attorney Weingast-in your revised complaint that Attorney Weingast was ineffective because he didn't research the case adequately.   If he had, he would have discovered that the charges were not substantiated, and the advice he gave you regarding the guilty plea on the agreed-upon or the negotiated plea would not have taken place.

The second is that the judge did not ask you questions and canvass your guilty pleas to make a knowing and intelligent and voluntary guilty plea.

Under either ground, if that's granted, all that would happen by the habeas Court-all they can do is vacate the guilty pleas and put you back where you were so that you could try again from scratch.   And it seems to me you're saying you don't want that.

THE PETITIONER:  Right.

THE COURT:  Well, do you want to withdraw this case then?

THE PETITIONER:  I was told that it could have got lowered to an assault third through this Court or somehow.

THE COURT:  The habeas Court-based on your claims-doesn't have the power to change the charges.   That's up to the prosecutor, and whether the prosecutor would be willing to do that or not, I have no idea.

ATTY. TODDY:  Your Honor, I think what Mr. Cotto is referring to, I-on August 13th, I did file a request-a revised request.

THE COURT:  I saw that revised-

ATTY. TODDY:  And I do-I do intend to make an argument that there is some authority that the habeas Court can fashion a remedy;  however, I did explain to Mr. Cotto that there's always a risk that the Court could choose to order the standard relief, which is to vacate the plea.

THE COURT:  I don't think the Court can usurp the role of the prosecutor and determine what is an appropriate charge.   That would have to be up to the prosecutor, and you could have a trial.   Then a judge or a jury would decide whether it was appropriate or not, but then you run the risk that you might get convicted of a more serious or you might not.   But that's a gamble.

The question is whether you want to go forward or you don't, and that's what I'm asking you, Mr. Cotto.

THE PETITIONER:  I mean, this caught me.   This caught me by surprise.   I didn't even know I was coming here today.

THE COURT:  Well, you're either scheduled for trial-

THE PETITIONER:  I didn't even have time to talk to her.

THE COURT:  I understand that this is new, but this is-you did receive the attorney's copy of the motion.

Counsel, did you provide him with a copy of the motion?

ATTY. TODDY:  Yes, Your Honor.   He received it yesterday.

THE COURT:  So you understood what her position was.

THE PETITIONER:  I filed for ineffective counsel.   I don't know-I mean, what's all this other stuff coming in.   I thought-I was never told that this would happen.

THE COURT:  Well, you're being told now, and I need to know what you want to do.

THE PETITIONER:  I'm not-I'm not giving up my guilty plea.   I'm not doing that.   Like I been telling them and they seem that they don't want to do it.   They-I'm not going to allow them to take back the guilty plea when I already did the time that they gave me.

THE COURT:  I understand that the practical-

THE PETITIONER:  Allowing them to go back through every little detail and give me the maximum sentence for all the cases-

THE COURT:  I understand.

THE PETITIONER:-and  give me more time?

THE COURT:  I understand the practical reasons why you wouldn't want to do that;  but then-so my question is to you, do you then want to withdraw this action, or do you want to proceed and go forward with the claim you're trying today?

Because if you are, I am going to allow counsel to be-withdraw from the case, and you're going to have to do it on your own or hire a private attorney by next week because I understand this is scheduled for a hearing starting September 1st.

Is that correct?

I'm being assured that it is.

THE PETITIONER:  I mean, I figured most of this is coming about.   Like, I feel like everybody is trying to pressure me to pull back now due to the fact that-not only that the evidence that they investigated that they found, it's the cop's misdoing, the prosecutor, and I was, like, everybody ganging up on the little Hispanic guy, like trying to cover up for the prosecutors and stuff.

THE COURT:  The remedy is you go back to where you were before the guilty pleas were entered, and you raise whatever issues you want to raise.   If you feel the charge is inappropriate, then you have a right to go to trial if you prevail.   That's if you win the habeas.

THE PETITIONER:  Guess I got to go about it-there's got to be another way I go about it or something to point out these people's mistakes.   I thought this what this Court was for, the habeas Court was for, to-

THE COURT:  Yes. But the remedy-

THE PETITIONER:  I mean, to what they did.

THE COURT:  Yes. But the remedy is we restore you to the point where what they did wrong occurred, and that is before you entered-at the point where you're going to enter the guilty pleas.   All we can do is set you back to where you were and give you the rights you had then.

I can't just change the charge.   I can't say, okay;  now we're going to-we'll dismiss the charges, for instance.   We can't do that.

THE PETITIONER:  That's why-

THE COURT:  Based on your claims.

THE PETITIONER:  When I met with them, I was handed an ultimatum.   Well, you have a week to decide what you want to do or we going to withdraw from your case.   That's like I don't know, man.   It's-

THE COURT:  Well, for today's purposes, I'm going to grant the motion for counsel to withdraw, and you'll be brought in when your trial is to start;  and you'll have to represent yourself if you want to go forward.

THE PETITIONER:  No.

THE COURT:  If you decide you don't want to go forward, you can file a withdrawal.

THE PETITIONER:  I'm not coming back to court the 1st.   I'm not.   There's not enough time for me to get an attorney.

THE COURT:  Do you have a withdrawal form?   We'll give you the form.   You can fill it out if you wish.   If you don't wish to do it, then the matter will go forward on that day.   You can make whatever requests you may have.

THE PETITIONER:  So I got to come back in a week?   You're giving me just a week to decide what I'm going to do.   That's-that's not even enough time for me to contact an attorney or get an attorney to represent me.

THE COURT:  If you want to make a request that you want to have more time to try and get a private attorney, you can make that request, and whoever the trial judge-

THE PETITIONER:  I'm going to just withdraw the case, but I want the transcripts from this case, too, man.   I want all of my orders, and then I'll contact-then I'm going to-

THE COURT:  I'm going to order that my comments and my ruling be transcribed for purposes of appeal, but you won't have appointed counsel for that purpose.

THE PETITIONER:  I want the whole-just I ain't coming to court the 1st, I don't want to come to court the 1st, so just get rid of-I don't really care no more.

THE COURT:  Well, then I will dismiss the petition.   It's dismissed.

THE PETITIONER:  So I don't got to come back to court;  right?

THE COURT:  No.

THE PETITIONER:  I can re-file anytime I choose to;  right?

THE COURT:  I can't tell you what you can do, what your options are.   I can't give you legal advice.

THE PETITIONER:  No. I'm saying, am I-can I still file another habeas when I hire a new attorney?

THE COURT:  If you did, what happens, I can't tell you.

THE PETITIONER:  I'm-

THE COURT:  You're not-you can file whatever you want to file.   How successful you'd be in doing that, I can't tell you.

THE PETITIONER:  This don't make no sense, man.

THE COURT:  But I'm dismissing this petition today.

All right.   That conclude this matter.

THE PETITIONER:  It don't make no sense, man.

(The matter was concluded.)

Samuel J. Sferrazza, Superior Court Judge

Sferrazza, Samuel J., J.