                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-13-2003

USA v. Alexander
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3933




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                                                              NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 02-3933


                          UNITED STATES OF AMERICA

                                           v.

                              MARIA F. ALEXANDER,
                                            Appellant


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF NEW JERSEY
                            D.C. Crim. No. 00-cr-00692
                District Judge: The Honorable Stephen M. Orlofsky


                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 6, 2003


          Before: BARRY, FUENTES, Circuit Judges, and McLAUGHLIN *


                            (Opinion Filed: June 13, 2003)


                                       OPINION




   *
    Honorable Mary A. McLaughlin, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
BARRY, Circuit Judge

      On April 19, 2002, defendant Maria F. Alexander pled guilty to a charge of

knowingly making false statements and representations in connection with her application

for and receipt of workers’ compensation benefits, in violation of 18 U.S.C. § 1920. On

October 11, 2002, she was sentenced to five years probation and required to pay

restitution in the amount of $27,722.00 and a special assessment of $100. On October 21,

2002, a timely Notice of Appeal was filed on defendant’s behalf. Counsel subsequently

filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and moved to

withdraw from the case because, as she recites, there are no non-frivolous issues to raise

on appeal. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and

appellate jurisdiction is proper in this Court under 28 U.S.C. § 1291.

       For her part, defendant has filed a pro se Informal Brief, in which she alleges,

among other things, that she received ineffective assistance of counsel, and maintains that

the “District Court based its decision on [her] attorney’s entering a guilty plea against

[her] wishes,” and that defense counsel “ignored all of [her] relevant medical history . . .

which is critical for understanding the events in this case.” (Informal Brief at 1, 3).

      If, “after a full examination of all the proceedings,” defense counsel “decide[s that]

the case is wholly frivolous,” counsel may explain this conclusion to the court upon

requesting leave to withdraw. Anders, 386 U.S. at 744. “If [the court] so finds[,] it may

grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements



                                              2
are concerned, or proceed to a decision on the merits, if state law so requires. On the

other hand, if it finds any of the legal points arguable on their merits (and therefore not

frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue

the appeal.” Id. An appeal may be deemed frivolous if it “lacks any basis in law or fact.”

McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 439 n. 10 (1988).

       Whether or not a plea hearing was properly conducted pursuant to Fed. R. Crim. P.

11 and whether or not a district court complied with the mandates of Fed. R. Crim. P. 32

in conducting a sentencing hearing are questions of law, and our review is plenary. See,

e.g., United States v. Ebel, 299 F.3d 187, 191 (3d Cir. 2002); United States v. Bertoli, 40

F.3d 1384, 1397 (3d Cir. 1994); United States v. Bentz, 21 F.3d 37, 38 (3d Cir. 1994).

Having thoroughly reviewed the record in this case, we conclude that there exist no

nonfrivolous issues and that the requirements set forth in Rules 11 and 32 were satisfied

during the entry of defendant’s plea and her sentencing, respectively.

       Specifically, the record reflects that defendant’s plea was knowing and voluntary,

and that at all times she understood what was taking place. Defendant was sworn and

advised of her rights, the possible ramifications of her plea, and the range of options

available to her. She evinced no evasion or lack of comprehension when she admitted to

willfully submitting a fraudulent form to the Office of Worker Compensation Programs,

furnishing the factual basis for her plea. The District Court ascertained that the plea was

not the product of any improper coercion. The Court ascertained as well that defendant



                                              3
had reviewed the Rule 11 form, that she understood it, and that she had filled it out

accurately.

       At the sentencing hearing, there were similarly no infirmities that would afford a

basis for a nonfrivolous appeal. Defendant and her counsel had the opportunity to go

over and discuss the Presentence Report, and did so. They also had the opportunity to

comment on and object to the Presentence Report, and declined to do so. The Court

concluded that the applicable guideline range was zero to six months, and that a fine and

the interest requirement on the amount of restitution would be waived. Defendant’s

sentence fell far below the statutory maximum term of imprisonment of five years, see 18

U.S.C. § 1920, and well within the parameters of 18 U.S.C. § 3561(c)(1) and U.S.S.G. §

5B1.2(a)(1).

       Defendant attempts to set forth an ineffective assistance of counsel claim by

stating, among other things, that she did “not do any self employment work,” and that her

counsel “had medical information pertinent to this case that she did not present [which]

would give clear evidence to show her innocence.” (Informal Brief at 4-5). This Court

will not generally consider a defendant’s claim of ineffective assistance of counsel on

direct appeal. See, e.g., United States v. Cianci, 154 F.3d 106, 113 (3d Cir. 1998); United

States v. Gaydos, 108 F.3d 505, 512, n. 5 (3d Cir. 1997); United States v. Cocivera, 104

F.3d 566, 570 (3d Cir. 1996) (noting that collateral, rather than direct, attack provides the

opportunity to develop a factual basis for the claim; gives the attorney a chance to explain



                                              4
the challenged conduct; and averts a situation where the attorney represents the defendant

on appeal and is placed in the unenviable position of arguing his or her own

ineffectiveness). A narrow exception to this general rule exists however, where “albeit

rare[ly,] we may have a sufficient record on appeal to decide the issue and avoid the

considerable effort of requiring the defendant to institute a collateral proceeding in order

to raise the ineffective assistance of counsel claim.” Cocivera, 104 F.3d at 570 -571. In

light of the dearth of evidence pertinent to the ineffective assistance claim, however, this

case clearly does not come within this narrow exception.

       Having found that no nonfrivolous issues have been identified or presented for

appeal, we will grant defense counsel’s request to withdraw and will AFFIRM the

judgment of the District Court.




TO THE CLERK OF THE COURT:

       Kindly file the foregoing Opinion.

                                    /s/ Maryanne Trump Barry
                                           Circuit Judge




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