govinfo:USCOURTS-pawd-2_12-cr-00295-0

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(Rev. 8/82) 
IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF PENNSYLVANIA 
UNITED STATES OF AMERICA ) 
) 
v. ) Criminal No. 12-295-1 
) 
DEXTRICK LAWTON ) 
MEMORANDUM AND ORDER OF COURT 
On November 28,2012, a grand jury returned a one-count indictment against defendant 
Dextrick La\\'ton and co-defendants Veryl Long and Brandon Page charging them with conspiracy 
to distribute and possess with intent to distribute one kilogram or more of heroin, in violation of 
21 U.S.C. §846. 
On December 4, 2013, Lawton appeared before the court with his appointed counsel, 
Michael E. Moser, to change his plea from not guilty to guilty to the one-count indictment. Prior 
to accepting Lawton's guilty plea, the court engaged in an extensive plea colloquy with him as 
required by Federal Rule of Criminal Procedure 11 (b). The court accepted Lawton's guilty plea 
after being satisfied that he knowingly and voluntarily desired to enter a plea of guilty and 
concluding that there was an adequate factual basis for the plea. 
Subsequently, on December 15, 2013, Attorney Moser filed a motion to withdraw as 
counsel for Lawton, claiming that their relationship was irretrievably broken. On December 16, 
2013, the court received a pro se letter motion from Lawton asking that new counsel be appointed 
to represent him. 
Following a hearing held on January 14,2014, the court granted Attorney Moser's motion 
to withdraw as counsel, and Attorney Mark A. Sindler subsequently was appointed to represent 
Lawton. 
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On March 30, 2014, Attorney Sindler filed Lawton's Motion to Withdraw Guilty Plea and 
Brief in Support of Motion to Withdraw Guilty Plea (" defendant's Brief') (Document Nos. 159 
and 160). Lawton contends that he should be permitted to withdraw his guilty plea not because he 
is actually innocent, but rather because of Attorney Moser's alleged "negligent representation" or 
ineffective assistance during the plea process. See defendant's Brief at 7. The government has 
responded to Lawton's motion, arguing that he should not be permitted to withdraw his guilty plea. 
See government's Response to Motion to Withdraw Guilty Plea (the "government's Response") 
(Document No. 175). 
Pursuant to Rule 11 ofthe Federal Rules of Criminal Procedure, a defendant may withdraw 
a guilty plea after the court accepts the plea, but before the court imposes sentence if"the defendant 
can show a fair and just reason for requesting the withdrawal." Fed.R.Crim.P. 11(d)(2)(B). "A 
district court must consider three factors when evaluating a motion to withdraw a gUilty plea: (1) 
whether the defendant asserts his innocence; (2) the strength of the defendant's reasons for 
withdrawing the plea; and (3) whether the government would be prejudiced by the withdrawal." 
United States v. Jones, 336 F.3d 245,252 (3d Cir. 2003). The burden ofdemonstrating a "fair and 
just" reason is on the defendant, and that burden is substantial. Id. As explained below, Lawton 
has not met the burden of demonstrating a fair and just reason for withdrawing his guilty plea, 
therefore his motion will be denied. 
With respect to the first factor enumerated in Jones, "[b ]ald assertions of innocence ... are 
insufficient to permit a defendant to withdraw [his] guilty plea." United States v. Brown, 250 F.3d 
811, 818 (3d Cir. 2001). "Assertions of innocence must be buttressed by facts in the record that 
support a claimed defense." Id. Once a defendant has pleaded guilty, he "must then not only 
reassert innocence, but give sufficient reasons to explain why contradictory positions were taken 
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before the district court and why permission should be given to withdraw the guilty plea and 
reclaim the right to trial." United States v. Jones, 979 F.2d 317, 318 (3d Cir. 1992), superseded 
by statute on other grounds as stated in, United States v. Roberson, 194 F.3d 408, 417 (3d Cir. 
1999). 
Here, Lawton has not asserted his innocence. I Rather, Lawton has critiqued Attorney 
Moser's representation by claiming that counsel failed to intervene during the plea colloquy when 
Lawton purportedly became distressed by the government counsel's summary of the factual basis 
for his guilty plea. Despite now characterizing Attorney Moser's representation as "negligently 
deficient," Lawton's current dissatisfaction with counsel's performance and advice is contradicted 
by his statements made under oath at the change of plea hearing. During the plea colloquy, Lawton 
affirmed that: (1) he appeared before the court knowingly and voluntarily to change his plea to 
guilty; (2) he was satisfied with his court-appointed counsel, Michael Moser; (3) he understood his 
constitutional rights; (4) he understood the charges against him and the potential penalties 
involved; (5) he confirmed that no threats or promises (other than the promises contained in the 
plea agreement) were made to induce him to plead guilty; (6) he understood the terms of the plea 
agreement and voluntarily signed the document after consulting with counsel; and (7) he 
acknowledged that the government's summary of the factual basis for his guilty plea was accurate 
as it pertained to him. Transcript ("Tr.") of December 4, 2013, Change of Plea Hearing 
(Document No. 155), at 4-22. Moreover, Lawton repeatedly confirmed for the court that he desired 
to plead guilty, see id. at 10, 14, 20, 22, and the court accepted his plea after finding that Lawton's 
decision to plead guilty was knowing and voluntary, and that there was an adequate factual basis 
1. Although Lawton has not asserted his innocence, he contends that he "has provided sufficient 
reasons for withdrawing his plea. A claim ofinnocence is part ofthis calculus." See defendant's Brief 
at 10. This vague reference to "[ a] claim of innocence" underscores the fact that Lawton has not 
actually asserted that he is innocent. 
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for his plea. Id. at 22. 
As to the second factor the court must consider, which is the strength of the defendant's 
reasons for seeking to withdraw his guilty plea, Lawton has failed to offer any persuasive reasons 
for allowing him to withdraw his plea. Here, again, La\\-10n claims that Attorney Moser's 
performance was deficient because he failed to "intervene more forcefully" after he purportedly 
became upset by the government counsel's summary of the factual basis for his guilty plea. See 
defendant's Brief at 7. 
"A court will permit a defendant to withdraw a guilty plea based on ineffective assistance 
of counsel only if (1) the defendant shows that his attorney's advice was under all the 
circumstances unreasonable under prevailing professional norms, and (2) the defendant shows that 
he suffered 'sufficient prejudice' from his counsel's errors." Jones, 336 F.3d at 253-54. 
To the extent Lawton contends that he should be permitted to withdraw his guilty plea due 
to ineffective assistance of counsel, he has not pointed to any objective evidence to support such 
a claim. First, when questioned by the court at the change ofplea hearing whether he was satisfied 
to have Attorney Moser represent him, La\\-10n unequivocally responded that he was satisfied with 
counseL Tr. at 5. Despite his stated satisfaction with Attorney Moser's representation, Lawton 
now alleges that he became distressed with one aspect of the government's presentation of the 
factual basis for his plea, and criticizes Attorney Moser for not "interven[ing] more forcefully by 
questioning [his] capacity ... to continue with the [plea] colloquy .... " See defendant's Briefat 
7. Lawton's displeasure apparently stems from the government's description that low level 
members of the heroin conspiracy distributed heroin out of hotel rooms, id. at 4, although he 
agreed that the government's factual summary was accurate as it pertained to him. Tr. at 21-22. 
Had Attorney Moser "intervened more forcefully" and terminated the plea hearing as 
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Lawton now claims he should have done, the government was prepared to file an Information 
pursuant to 21 U.S.C. §851 that would have increased the mandatory minimum term of 
imprisonment from ten years to twenty years. See government's Response at 2. In addition, the 
government contemplated filing a superseding indictment based on evidence that Lawton sold 
drugs to an individual who died because of a heroin overdose, which would have exposed Lawton 
to a mandatory term of life imprisonment if he was convicted. Id. Lawton has acknowledged he 
was aware of these possibilities at least as of the time a hearing was held on October 22,2013, 
when the Assistant United States Attorney explained the government's position regarding these 
matters.2 See defendant's Brief at 2-3. 
Attorney Moser was able to negotiate a plea agreement for Lawton that included an agreed-
upon I5-year sentence, saving Lawton from a possible mandatory term of20 years and possibly up 
to life imprisonment. Had Attorney Moser terminated the plea hearing, the government likely 
would have filed the §851 Information or a superseding indictment, thereby substantially increasing 
the potential mandatory penalties Lawton could have faced. In light of this, Lawton has not shown 
that Attorney Moser's advice was under all the circumstances unreasonable under prevailing 
professional norms, nor has he shovm that he has been prejudiced by Attorney Moser's handling 
of his case. 
2. Lawton criticizes the fact that the government was unwilling to keep open the plea offer that was 
outstanding as of October 22, 2013, as well as what he characterizes as the government's threat to file 
a §851 Information or a superseding indictment. The indictment in this case was filed on November 
28,2012, and Lawton made his initial appearance and was arraigned in December, 2012. In the interim, 
Attorney Moser had obtained on Lawton's behalf numerous extensions of time to file pretrial motions, 
eventually filed pretrial motions, and obtained a partial prep lea presentence report regarding Lawton's 
criminal history. In addition, Attorney Moser sought and obtained on Lawton's behalf a number of 
"windows" or "furloughs" from the conditions of his pretrial release so that he could attend a variety 
of picnics, parties and social events. After nearly 11 months passed since Lawton's indictment, the 
government was fully entitled to withdraw its plea offer and prosecute the case against him in the 
manner it deemed appropriate. 
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The third factor courts consider when evaluating a motion to withdraw a guilty plea is 
whether the government has demonstrated that it would be prejudiced by the withdrawal ofa guilty 
plea. However, the government need not show prejudice when a defendant has failed to demonstrate 
that the other factors support a withdrawal of the plea. United States v. Harris, 44 F.3d 1206, 1210 
(3d Cir. 1995). As discussed, Lawton has failed to assert his innocence or provide a persuasive 
reason for withdrawing his plea, thus the government is not required to show prejudice. 
Nevertheless, we note that the government would be prejudiced if Lawton was permitted to 
withdraw his guilty plea. As the government has explained, this court previously sentenced several 
cooperating witnesses based on substantial assistance motions filed by the government on their 
behalf. See government's Response at 7. Accordingly, those witnesses may lack the incentive to 
continue cooperating with the government if Lawton is permitted to withdraw his guilty plea and 
proceed to trial. 
After consideration of the factors relevant to evaluating a motion to withdraw a guilty plea, 
the court concludes that Lawton has failed to sustain the substantial burden of showing a fair and 
just reason for withdrawing his plea of guilty as required by Federal Rule of Criminal Procedure 
11 (d)(2)(B). Accordingly, Lawton's motion to withdraw his guilty plea will be denied. 
An appropriate order will follow. 
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ORDER 
AND NOW, this .;>qPcray of April, 2014, for the reasons set forth in the Memorandum 
above, IT IS 0 RD ERED that defendant's Motion to Withdraw Guilty Plea (Document No. 159) be, 
and the same hereby, is denied. 
/~cr:,d!~
,.,/ Gustave Diamond 
United States District Judge 
cc: 	 Brendan T. Conway 
Assistant U.S. Attorney 
Mark A. Sindler, Esq. 
310 Grant Street 
Suite 2330, Grant Building 
Pittsburgh, PA 15219 
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