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


7-14-2003

USA v. Jones
Precedential or Non-Precedential: Precedential

Docket No. 01-4435




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                                 PRECEDENTIAL

                                             Filed July 14, 2003

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                          No. 01-4435


               UNITED STATES OF AMERICA,
                                Appellee
                                v.
                       DONALD JONES,
                                 Appellant

     On Appeal From the United States District Court
         For the Eastern District of Pennsylvania
               (D.C. Crim. No. 00-cr-00432)
        District Judge: Honorable John R. Padova

                  Argued December 9, 2002
    Before: BECKER, Chief Judge,* ROTH and SMITH,
                    Circuit Judges

                     (Filed July 14, 2003)
                        RICHARD G. FREEMAN (ARGUED)
                        924 Cherry Street, 4th Floor
                        Philadelphia, PA 19107
                        Counsel for Appellant




* Judge Becker completed his term as Chief Judge on May 4, 2003.
                             2


                      AMY KURLAND (ARGUED)
                      Assistant United States Attorney
                      United States Attorney’s Office
                      615 Chestnut Street, Suite 1250
                      Philadelphia, PA 19106-4476
                      Counsel for Appellee


                OPINION OF THE COURT

SMITH, Circuit Judge:
   After pleading guilty to charges of unlawful possession of
a firearm by a convicted felon and witness tampering,
defendant Donald Jones was sentenced to 130 months in
prison, three years of supervised release, and a $700 fine.
Jones now appeals, arguing that the District Court erred:
(1) by denying his motion to withdraw his guilty plea, and,
later, (2) in failing to hold a competency hearing before
sentencing Jones. We will affirm the District Court’s denial
of Jones’s motion to withdraw his guilty plea. However, we
will vacate the sentencing order for the District Court’s
failure to hold a competency hearing and remand to the
District Court for proceedings consistent with this opinion.
I.   Facts and Procedural History
   On February 8, 2000, defendant Jones’s girlfriend,
Rhonda Turner, placed a 911 call to the Philadelphia police.
She reported to the police that on the evening of February
7, Jones had returned home brandishing a weapon and
demanding the use of her car. Jones purportedly sought to
use the car to pursue some rival drug dealers who had
robbed dealers then working for him. According to the
police investigation report, the following day, February 9th,
officers entered Jones’s house pursuant to a warrant and
found him in bed. The police report states that “the
defendant was asked if he had any weapons and Jones said
YES and when [police officer] Bins asked where the weapon
was JONES moved the pillow and under the pollow [sic]
was the gun.” Philadelphia Police Dept. Investigation Report
dated Feb. 9, 2000 (emphasis in original). The gun was a
                                    3


loaded nine millimeter Luger with an obliterated serial
number.
   Following his arrest and detention, Jones wrote a number
of letters to Ms. Turner from jail, threatening harm to her
if she refused to alter her testimony. The letters contained
statements that Jones “knows where [Ms. Turner’s] people
live,” and that “this is not the first time [Turner had]
crossed [Jones].” He also warned that “I just hope I don’t
have to send my boys to do anything I don’t want to but
might have to.”
   On October 13, 2000 and December 4, 2000, Jones and
his attorney, Rossman Thompson (hereinafter “prior
counsel”), met with attorneys for the Government at Jones’s
request to determine whether Jones could provide any
helpful information in exchange for a downward departure
under the United States Sentencing Guidelines. Two
Assistant United States Attorneys, agents from the Bureau
of Alcohol, Tobacco, and Firearms, and representatives from
the Philadelphia Police Department Narcotics Division
attended the proffer meetings. Jones was unable to provide
information that the Government found helpful, and the
parties failed to reach a plea agreement.
   Jones pleaded guilty on December 4, 2000 to one count
of unlawful possession of a firearm by a convicted felon, in
violation of 18 U.S.C. § 922(g), and one count of witness
tampering, in violation of 18 U.S.C. § 1512(b)(1). On March
5, 2001, the day his sentencing was scheduled to take
place, Jones became upset and struck his prior counsel. He
then requested the appointment of new counsel and sought
to file a motion to withdraw his guilty plea. The District
Court appointed new counsel, Richard Freeman (hereinafter
“current counsel”), and granted Jones additional time to file
his motion. On May 31, 2001, after a hearing on Jones’s
motion to withdraw his guilty plea, the District Court
denied that motion, and later denied his pro se “appeal” of
that ruling on June 21, 2001.1

1. The record does not reflect whether the District Court deemed Jones’s
“appeal” a motion for reconsideration. The docket entry for June 21,
2001 simply indicates that the District Court entered an order “denying
[defendant’s] appeal for [defendant’s] motion to withdraw his guilty plea.”
                                   4


  On August 28, 2001, during a hearing regarding other
pro se motions that Jones had filed, the Government
notified the District Court that it had received a letter from
the Federal Bureau of Prisons stating that Jones had been
prescribed psychiatric medication while in prison. In light
of this development, the Government requested that the
Court hold a “brief ” competency hearing prior to
sentencing. The Court agreed to do so.2 The District Court
then questioned Jones about his medication. Jones stated
that while doctors had prescribed Prozac, Dilantin, and “a
few other psychiatric medications” for him, he had not been
taking his medication for about two weeks because he had
been working on his case. The Court also asked Jones
whether he had undergone a medical examination while in
the prison community, and Jones responded that he was
seeing a psychiatrist. The Court then concluded that it
would be useful to have a report from the psychiatrist prior
to the sentencing.
   Two days after the hearing, on August 30, 2001, Bureau
of   Prisons   psychologist    Ira  Kedson    prepared   a
“Psychological Report” which indicated that Jones had been
receiving psychiatric treatment at the Federal Detention
Center since October 12, 2000, and that his current
diagnoses were “Schizoaffective Disorder, Depressed Type
and Polysubstance Abuse.”3 According to the report, a
Bureau of Prisons physician had prescribed the
antidepressant Prozac at Jones’s initial psychiatric
appointment to control Jones’s depressed feelings. In
February 2001, Jones had been prescribed the
antipsychotic medication Risperdal to address his reported

2. The dialogue between the Government and the District Court was as
follows: “Ms. Kurland [for the Government]: It’s come to my attention
that the defendant has been prescribed some psychiatric drugs while he
is in prison and may I just request that next week just prior to the
sentencing we have a brief hearing regarding competency? The Court:
Yes. Very well.” Tr. of Aug. 28, 2001 Hr’g, at 5.
3. Our review of the record did not reveal the existence of a court order
requesting the preparation of this report. We presume the Bureau of
Prisons report was prepared at the Government’s request, pursuant to
Ms. Kurland’s discussion with the District Court at the August 28
hearing.
                                  5


“visions” of his deceased mother. Jones also received the
anticonvulsant Dilantin for his history of seizures.
According to Kedson, “Mr. Jones’[s] compliance with [his]
medication has fluctuated during the time it has been
prescribed for him.”4 Kedson’s report stated that while the
Bureau had not performed a competency evaluation of Mr.
Jones, “the medication should facilitate his ability to
participate in his trial, since certain distracting and
preoccupying symptoms (e.g. anxiety, depressed feelings,
hallucinations) should be reduced or even minimized by the
medication’s    effects.”  Federal  Bureau     of  Prisons
Psychological Report dated Aug. 30, 2001. The information
in Kedson’s report led the Government to request, by letter
dated September 6, 2001, that the Court order a
competency evaluation of Jones prior to sentencing.
Pursuant to this request, the District Court ordered such
an evaluation.

4. The Report provided the following chronology of Jones’s compliance
with respect to his medication:
    Initially, he took his Prozac as prescribed; this lasted from
    approximately October 2000 through March 2001. Beginning in
    April 2001, Mr. Jones began to only take the medication prescribed
    for him at night by not showing up or actually refusing to take his
    medications when the morning pill line was performed. When he
    was seen on June 12, 2001, he acknowledged that he was not
    taking his medications in the morning, but was taking them in the
    evening. In response to this, the Consultant Psychiatrist changed
    his medications to being administered in the evening; she also
    increased Mr. Jones’[s] medication doses (both the Prozac and the
    Risperdal) in an effort to help him with his continuing voices and
    depressed mood.
      Through the end of June, Mr. Jones was compliant with his
    medications. However, for the month of July and most of August
    2001, Mr. Jones has not taken his psychiatric medication at all by
    not picking up his medication or by refusing it. When asked about
    this, Mr. Jones indicated that he had concerns about being able to
    work on his case when taking the medications, and so stopped
    taking them during the time he was doing legal work. He also
    indicated that he took his medications the day of the interview
    (August 29, 2001), and intended to continue doing so.
Federal Bureau of Prisons Psychological Report dated Aug. 30, 2001.
                                  6


   Dr. Jeffrey Summerton, Ph.D., performed Jones’s
psychological examination. Dr. Summerton’s report
documented that “the purpose of the evaluation was
‘regarding competency and (the nature of Mr. Jones’[s])
understanding . . . of Court procedure.’ ” Psychological
Evaluation of Jeffrey Summerton, Ph.D. dated Oct. 9, 2001,
at 6 (hereinafter “Summerton Report”). The general
principles for competency set forth in Dusky v. United
States, 362 U.S. 402 (1960) served as a guide for Dr.
Summerton’s report.5 Thus, Dr. Summerton
     focused upon such factors as a defendant’s general
     knowledge and understanding of court procedure,
     specific knowledge and understanding of his particular
     legal circumstances, his ability to cooperate with
     counsel and participate in his defense, and his ability
     to tolerate stress and refrain from irrational and
     unmanageable behavior during trial.
Summerton Report, at 7.
   In evaluating Jones’s competency, Dr. Summerton
employed a standard interview format that measures three
adjudicative competence-related abilities: understanding,
reasoning, and appreciation. Dr. Summerton opined that
Jones “generally appeared to meet a number of the above-
listed criteria [for competence],” such as “general knowledge
and understanding of court procedure, and specific
knowledge and understanding of his particular legal
circumstances.” Id. at 7. However, Dr. Summerton felt that
Jones exhibited “mild impairment” in the “understanding”
category.
  With respect to Jones’s “appreciation” score, Dr.
Summerton noted that the questions were specifically
“concerned with the subject’s capacity to appreciate his or
her own legal situation and circumstances.” Furthermore,
they were “structured to identify any unrealistic or

5. “[T]he test [of a defendant’s competency] must be whether he has
sufficient present ability to consult with his lawyer with a reasonable
degree of rational understanding—and whether he has a rational as well
as factual understanding of the proceedings against him.” Dusky v.
United States, 362 U.S. 402, 402 (1960) (internal quotations omitted).
                              7


idiosyncratic beliefs which are implausible and may reflect
symptoms of mental illness.” Nonetheless, while Dr.
Summerton noted a number of factors apart from mental
illness that might have accounted for a low “appreciation”
score, id. at 6, Dr. Summerton’s report indicated that Jones
had “clinically significant impairment” in the area of
“appreciation.” Id. at 7.
   Dr. Summerton also expressed concern about Jones’s
ability to consult with his attorney, due to Jones’s feelings
of having been “misled” and “disrespected” in the past. Id.
at 6. Recognizing that this was “the more critical element at
issue” in Jones’s competency evaluation, Dr. Summerton
opined that “it would appear that he does possess some
ability to cooperate with attorneys in his defense and thus
has shown some competence in this regard.” Id. (emphasis
added). In order to address Jones’s difficulties cooperating
with counsel, the report made specific recommendations on
how Jones’s cooperation with defense counsel “might be
enabled, facilitated, and optimized.” Id. Specifically, Dr.
Summerton stated that counsel must be “sensitiv[e] to his
admitted cognitive difficulties in learning and tailor[ ]
discussion accordingly; be[ ] responsive to his inquiries; and
ensur[e] the continued availability of his psychiatric
medication regimen.” Id. Ultimately, Dr. Summerton failed
to render an overall conclusion that Jones was either
competent or incompetent to proceed to sentencing.
  Following Dr. Summerton’s evaluation, the Court
scheduled Jones’s sentencing for December 6, 2001. At that
point, the District Court had yet to conduct the competency
hearing to which it had earlier agreed. At the beginning of
the sentencing hearing, the Court acknowledged that “I
have received a psychological evaluation of Mr. Jones which
shows that a copy was sent to the Government and defense
counsel.” However, the Court made no findings on the
record regarding that report.
  During the sentencing hearing, the Government did not
renew its earlier motion for a competency hearing. Neither
did defense counsel expressly request such a hearing before
the sentence was imposed. Nonetheless, the issue of
Jones’s competency lurked throughout the proceeding.
During defense counsel’s argument for a downward
                             8


adjustment for acceptance of responsibility, Jones’s counsel
requested that the District Court consider the “very
comprehensive report from . . . Jeffrey Summerton who
characterizes this man as a man who has failings when it
comes to cognitive decision making.” Tr. of Dec. 6, 2001
Hr’g, at 15. Stating, “I have taken into consideration the
psychological report in this case which does indicate that
from time to time Donald Jones has lost track as it were
and misfired as a result of an underlying psychological
disorder,” the District Court granted the downward
departure for acceptance of responsibility. Id. at 30. Later
in the hearing, during allocution, Jones himself asked the
Court “to take into consideration my mental problems and
[to grant] some type of downward departure.” Id. at 31.
Declining to further reduce Jones’s sentence, the District
Court concluded that the record contained “insufficient”
information to grant a downward departure for diminished
capacity pursuant to Guidelines § 5K2.13 based on Jones’s
mental problems. Id. at 31-32. The District Court sentenced
Jones to 130 months in prison and three years of
supervised release.
II.    Jurisdiction
   The District Court had jurisdiction pursuant to 18 U.S.C.
§ 3231. This Court has jurisdiction under 28 U.S.C. § 1291.
III.   Discussion
  Jones raises two challenges to the District Court
proceedings. First, Jones asserts that the District Court
abused its discretion in denying his motion to withdraw his
guilty plea. Second, he argues that the District Court erred
in failing to hold a competency hearing prior to sentencing
him. We conclude that Jones has not stated an appropriate
basis for seeking to withdraw his guilty plea and that the
District Court did not abuse its discretion in denying that
motion. However, on the basis of the evidence later
presented to the Court regarding his competency, there was
reasonable cause to believe that Jones was not competent
to proceed with sentencing. Accordingly, we will remand for
a determination by the District Court as to whether a
meaningful hearing on competency can now take place.
                                   9


  A.   The District Court’s Denial of Jones’s Motion to
       Withdraw His Guilty Plea
  In March of 2001, Jones sought to withdraw his guilty
plea pursuant to Federal Rule of Criminal Procedure 32(e),
arguing that his plea, entered December 4, 2000, was
involuntary due to ineffective assistance of counsel. The
District Court conducted a hearing on this issue on May
22, 2001. We review a district court’s ruling denying a
defendant’s motion to withdraw his guilty plea before
sentencing pursuant to an abuse of discretion standard.
United States v. Harris, 44 F.3d 1206, 1210 (3d Cir. 1995).
   Once a court accepts a defendant’s guilty plea, the
defendant is not entitled to withdraw that plea simply at his
whim. United States v. Brown, 250 F.3d 811, 815 (3d Cir.
2001); United States v. Martinez, 785 F.2d 111 (3d Cir.
1986). Rather, pursuant to Federal Rule of Criminal
Procedure 32(e), a defendant must have a “fair and just
reason” for withdrawing a plea of guilty.6 Fed. R. Cr. P.
32(e); Brown, 250 F.3d at 815. 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. Brown, 250 F.3d at
815; United States v. Huff, 873 F.2d 709, 711 (3d Cir.
1989). The burden of demonstrating a “fair and just” reason
falls on the defendant, and that burden is substantial.
United States v. Hyde, 520 U.S. 670, 676-77 (1997); United
States v. Isaac, 141 F.3d 477, 485 (3d Cir. 1998). “A shift
in defense tactics, a change of mind, or the fear of
punishment are not adequate reasons to impose on the
government the expense, difficulty, and risk of trying a
defendant who has already acknowledged his guilt by
pleading guilty.” Brown, 250 F.3d at 815 (quoting United
States v. Jones, 979 F.2d 317, 318 (3d Cir. 1992),
superseded by statute on other grounds as stated in, United
States v. Robertson, 194 F.3d 408, 417 (3d Cir. 1999)).

6. Federal Rule of Criminal Procedure 32(e) provides, in pertinent part:
“If a motion to withdraw a plea of guilty . . . is made before a sentence
is imposed, the court may permit the plea to be withdrawn if the
defendant shows any fair and just reason.”
                                  10


  With respect to the first factor under Brown and Huff, the
District Court determined that Jones had not meaningfully
reasserted his innocence. Bald assertions of innocence are
insufficient to permit a defendant to withdraw his guilty
plea. “Assertions of innocence must be buttressed by facts
in the record that support a claimed defense.” Brown, 250
F.3d at 818 (quoting United States v. Salgado-Ocampo, 159
F.3d 322, 326 (7th Cir. 1998)). Once a defendant has
pleaded guilty, he “must then not only reassert innocence,
but give sufficient reasons to explain why contradictory
positions were taken before the district court and why
permission should be given to withdraw the guilty plea and
reclaim the right to trial.” Jones, 979 F.2d at 318.
   Jones did not meaningfully reassert his innocence. He
made a blanket assertion of innocence at the May 22, 2001
hearing, but offered no credible facts in support of his
claim. Defense counsel argued that the mere filing of a
motion to withdraw a guilty plea “constructively asserted
his innocence,” but conceded on the record that “we have
submitted no testimonial proof ” on the issue of whether
Jones had meaningfully asserted his innocence. Tr. of May
22, 2001 Hr’g, at 15. The District Court correctly
determined that Jones’s argument “contradicts the Brown
standard that requires the defendant to place facts in the
record” in support of the claimed defense. Nor did Jones
provide a convincing reason for having taken contradictory
positions at the December 4, 2000 and May 22, 2001
hearings. At the December 4 hearing, Jones listened to the
Government’s recitation of the material facts underlying his
offenses and conceded the accuracy of those facts. Jones
then denied those facts at the May 22 hearing, but did not
explain why his position had changed so markedly. He
merely alleged that his prior counsel had told him to agree
to the facts at the December hearing.7 Jones acknowledged
that he had sent letters to Ms. Turner from prison and he
failed to “present any evidence that” the gun police found

7. Jones testified at the May 22 hearing that “I was advised [by prior
counsel] to say them things so that I could receive the 57 months to 71
months sentence.” The Court then asked whether “that was not the
truth, is that correct, that’s what your telling me now?” Appellant
responded, “yeah.” Tr. of May 22, 2001 Hr’g, at 29.
                              11


under his pillow did not belong to him. Brown, 250 F.3d at
818. We therefore conclude that the District Court correctly
determined that Jones failed to demonstrate that the first
factor as stated in Brown and Huff supports his position.
  As to the strength of Jones’s reasons for seeking to
withdraw his guilty plea, the second factor discussed in
Brown and Huff, Jones asserts that he should have been
permitted to withdraw his plea because it was “involuntary”
in the first instance due to ineffective assistance of counsel.
See United States v. Day, 969 F.2d 39, 45 (3d Cir. 1992).
He argues that his prior counsel’s representation was
deficient in five respects: (1) prior counsel misled him about
the length of his possible sentence under the Sentencing
Guidelines; (2) prior counsel misled him into believing he
had a plea agreement with the Government; (3) prior
counsel was ineffective in engaging in proffer discussions
with the Government; (4) prior counsel failed to adequately
investigate Jones’s defenses; and (5) prior counsel failed to
request a continuance of Jones’s sentencing.
   In order for a guilty plea to be valid, it must “represent[ ]
a voluntary and intelligent choice among the alternative
courses of action open to the defendant.” Hill v. Lockhart,
474 U.S. 52, 56 (1985). 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, Day, 969 F.2d at 42
(citing Strickland v. Washington, 466 U.S. 668, 687-91
(1984)); and (2) the defendant shows that he suffered
“sufficient prejudice” from his counsel’s errors. Day, 969
F.2d at 45.
   “[A] narrow exception to the rule that defendants cannot
attack the efficacy of their counsel on direct appeal” exists
“[w]here the record is sufficient to allow determination of
ineffective assistance of counsel.” U.S. v. Headley, 923 F.2d
1079, 1083 (3d Cir. 1991). Here, the District Court
conducted a hearing with Jones and his new counsel where
it specifically considered Jones’s allegations concerning the
representation he received from his prior counsel and the
effect that representation may have had on the
“voluntariness” of his guilty plea. Because this hearing
                             12


created an adequate record upon which we can consider
Jones’s claims, see id., we may proceed to review the
District Court’s findings with respect to the effectiveness of
Jones’s prior counsel on this direct appeal. Jones has “had
a chance to make a full record” on this issue, see Day, 969
F.2d at 45, so we review those findings using the same
abuse of discretion standard that we otherwise apply to a
decision on whether to permit a defendant to withdraw a
guilty plea. See United States v. Harris, 44 F.3d 1206, 1210
(3d Cir. 1995).
  The District Court concluded that there was no credible
evidence to support Jones’s contentions that his prior
counsel’s representation was inadequate or that the
representation prejudiced him. Based on our review of the
record before the District Court, we conclude that the
District Court did not err in making these findings.
   Jones first asserted that his prior counsel “guaranteed”
him a sentence of “no less than 57 months and no more
than 71 months,” as opposed to the higher term that the
Presentence Investigation Report eventually recommended.
However, the District Court engaged Jones in a lengthy and
extensive colloquy at the December 4, 2000 guilty plea
hearing, during which the Court asked Jones whether
anyone had made any threat or promise or assurance of
any kind to convince him to plead guilty. He replied in the
negative. The District Court clearly warned Jones of the
maximum sentences accompanying the charged offenses
and specifically advised Jones that he would not be
permitted to withdraw his guilty plea should his sentence
be in excess of that recommended by his counsel, the
Government, or the probation office. After the District
Court’s explanation, Jones asked to speak to his attorney,
was afforded the time to do so, and then reaffirmed his
intention to plead guilty. When asked at the May 22
hearing why he had failed to listen to the judge or raise his
concerns regarding the length of his sentence with the
District Court, Jones merely responded that his lawyer had
told him “don’t worry about” what the judge actually says
in the courtroom. The District Court weighed this bare
testimony against Jones’s earlier colloquy and the lack “of
some ‘objective evidence’ that a petitioner would have
                             13


accepted a plea offer” to find that there was no ineffective
assistance of counsel. See Day, 969 F.2d at 45; Toro v.
Fairman, 940 F.2d 1065, 1068 (7th Cir. 1991). Because the
record fails to clearly demonstrate either that the
misrepresentations occurred or that Jones was prejudiced,
there was no error.
   Jones also asserted at the May 22 hearing that his prior
counsel misled him into believing that he had a plea
agreement with the Government. However, Jones again
failed to present any objective or other credible evidence
that he believed that he had a plea agreement with the
Government. See Day, 969 F.2d at 45. Jones had been
arrested, in his estimation, between twenty to thirty times
and had been convicted four times on drug charges. One of
his cases had gone to trial. Jones was, therefore, no
stranger to the criminal justice system and its procedures.
In the instant case, the Government never showed Jones a
plea agreement, and he testified at the May 22 hearing that
his plea was not subject to an agreement. Thus, we cannot
say that the record clearly demonstrates that he was misled
by prior counsel as to the existence of a plea agreement
and prejudiced thereby.
  Jones’s claim that his counsel failed to engage in “proffer”
discussions with the Government is utterly without merit.
The record reflects that his prior counsel, at Jones’s
request, arranged two separate proffer meetings with the
Government that took place on October 13, 2000 and
December 4, 2000. At these meetings, Jones had the
opportunity to share information with two Assistant United
States Attorneys, agents from the Bureau of Alcohol,
Tobacco, and Firearms, and representatives from the
Philadelphia    Police   Department     Narcotics   Division.
Following the meetings, the Government concluded that
Jones simply had not provided sufficient helpful
information to warrant a request for a downward departure
for substantial assistance under the Sentencing Guidelines.
  Finally, Jones failed to substantiate his contentions that
his prior counsel did not adequately investigate his
defenses or effectively utilize the information he did
possess; that he erroneously advised Jones that he had no
defenses to the charged offenses; and that he erred in
                              14


failing to seek a continuance in sentencing. “[I]n light of all
the circumstances” of this case, we conclude that the
record does not indicate that “the identified acts or
omissions were outside the wide range of professionally
competent assistance.” See Strickland, 466 U.S. at 690.
Jones has not pointed to any specific act or omission or
objective evidence to support his blanket contentions.
Furthermore, his allegations are undermined by his own
statements in the record. At the December 4, 2000 guilty
plea proceeding, Jones indicated that he was satisfied with
prior counsel’s representation. The Court queried him as to
whether “you feel you have — that you have discussed fully
your case with Mr. Thompson . . . [a]nd are you satisfied
with [ ]his representation of you?” Jones answered both
questions in the affirmative.
  A third factor courts look to under Brown and Huff is
whether the Government has demonstrated that it would be
prejudiced by the withdrawal of a guilty plea. See Brown,
250 F.3d at 815. However, the Government need not show
such 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).
Because we have concluded that the District Court did not
err in finding that Jones failed to meaningfully reassert his
innocence or provide a strong reason for withdrawing his
plea, the Government was not required to show prejudice.
  In conclusion, Jones has failed to meaningfully assert his
innocence or point to any credible evidence in the record
that demonstrates that his guilty plea was the result of the
ineffective assistance of counsel. Therefore, Jones’s claim of
ineffective assistance of counsel does not provide a “fair and
just reason” for withdrawing his guilty plea, and the
District Court did not abuse its discretion in denying
Jones’s motion.
  B.   The District Court’s Failure to Hold a
       Pre-Sentencing Competency Hearing
  During the August 28, 2001 hearing on Jones’s pro se
motions, the Government notified the District Court that
Jones had been prescribed psychiatric medication and
requested a competency hearing. The District Court agreed
                            15


to hold such a hearing. When Jones’s sentencing date was
reached, however, neither the parties nor the Court
mentioned holding a competency hearing, and the District
Court proceeded to sentence Jones without conducting
such a hearing. The District Court’s failure to hold a
competency    hearing    constituted error   under   the
circumstances of this case.
   Pursuant to 18 U.S.C. § 4241(a), a criminal defendant
shall be subjected to a competency hearing “if there is
reasonable cause to believe that the defendant may
presently be suffering from a mental disease or defect
rendering him mentally incompetent to the extent that he is
unable to understand the nature and consequences of the
proceedings against him or to assist properly in his
defense.” 18 U.S.C. § 4241(a). Where such “reasonable
cause” exists, even if neither the defendant nor the
Government moves for such a hearing, the court shall
conduct such a hearing on its own motion. Id.; see also
United States v. Leggett, 162 F.3d 237, 241 (3d Cir. 1998);
United States v. Renfroe, 825 F.2d 763, 766 (3d Cir. 1987)
(holding that the court must have “reasonable doubt” as to
competency to order a hearing). Our criminal justice system
has long recognized that “ ‘a person whose mental condition
is such that [the person] lacks the capacity to understand
the nature and the object of the proceedings[,] . . . to
consult with counsel, and to assist in preparing [a] defense
may not be subjected to a trial.’ ” Leggett, 162 F.3d at 241
(quoting Drope v. Missouri, 420 U.S. 162, 171 (1975)). The
conviction of a legally incompetent person violates due
process. Pate v. Robinson, 383 U.S. 375, 378 (1966);
Leggett, 162 F.3d at 241.
   “Since we must decide whether the district court properly
applied the standard for determining the necessity of a
competency hearing, our review is plenary.” Leggett, 162
F.3d at 241; Renfroe, 825 F.2d at 766. If the District Court
applied the proper legal standard, we review factual
findings regarding competency for clear error. Leggett, 162
F.3d at 241 (citing United States v. Velasquez, 885 F.2d
1076, 1089 (3d Cir. 1989)). When evaluating a defendant’s
competency, a district court must consider a number of
factors, including “evidence of a defendant’s irrational
                             16


behavior, his demeanor at trial, and any prior medical
opinion on competence to stand trial.” Leggett, 162 F.3d at
242 (quoting Drope, 420 U.S. at 180). Other factors that are
relevant to the determination “may include an attorney’s
representation about his client’s competency.” Renfroe, 825
F.2d at 767 (citing United States v. Metcalfe, 698 F.2d 877
(7th Cir. 1983)). There are, however, “no fixed or immutable
signs which invariably indicate the need for [a competency
hearing],” but “even one of these factors standing alone
may, in some circumstances, be sufficient.” Drope, 420 U.S.
at 180; Leggett, 162 F.3d at 242. “The question is often a
difficult one in which a wide range of manifestations and
subtle nuances are implicated.” Drope, 420 U.S. at 180.
  Ultimately, the Court’s analysis of whether reasonable
cause exists is informed by the two-pronged test for legal
competence articulated in Drope and Leggett. A court must
examine the unique circumstances of the case and decide
whether the defendant “(1) has the capacity to assist in her
or his own defense and (2) comprehends the nature and
possible consequences of a trial. If either prong is not met,
a court has reasonable cause to order a competency
hearing.” Leggett, 162 F.3d at 242; see also Renfroe, 825
F.2d at 767 (noting that this is a fact-intensive inquiry that
depends on the unique circumstances of the case).
  In this case, since the District Court did not hold a
formal hearing on Jones’s competency and proceeded
directly to sentencing, we presume that the District Court
did not believe Jones to be legally incompetent.
Nonetheless, the question the District Court should have
considered at that stage of the proceedings was not
whether, “based on the information I have before me now,”
the evidence was “insufficient” to show that Jones lacked
competency, as it appears the District Court may have
done, see Tr. of Dec. 6, 2001 Hr’g, at 31-32, but whether
there was “reasonable cause to believe that the defendant
may be . . . incompetent.” 18 U.S.C. § 4241(a). If such
cause existed, § 4241 required a competency hearing.
  Under Drope and Leggett, one factor a court must
consider when determining if there is reasonable cause to
hold a competency hearing is a medical opinion regarding
a defendant’s competence. Leggett, 162 F.3d at 242
                             17


(quoting Drope, 420 U.S. at 180). Although Dr.
Summerton’s report did not conclude that Jones was
incompetent to proceed with sentencing, that report
certainly raised some doubt. Dr. Summerton concluded
that Jones exhibited “clinically significant impairment” in
the “appreciation” category, which indicated a possible
reduced capacity “to understand [his own] legal situation
and circumstances.” Summerton Report, at 6. Summerton
also noted “mild impairment” in Jones’s “understanding,”
which could have affected his “capacity for factual
understanding of the legal system and the adjudication
process.” Id. Dr. Summerton did suggest that Jones’s low
appreciation score could have resulted from his mere
reluctance to speak frankly about his own legal situation,
or his cynicism about the legal system in general, rather
than from a mental illness. Yet the District Court made no
attempt to resolve the competing explanations for Jones’s
low score, despite the fact that the low score resulted in a
finding of “clinically significant impairment” in an area that
directly affected Jones’s ability to understand the legal
proceedings against him and assist in his defense.
  The Summerton Report also raised concerns about
Jones’s ability to cooperate with his attorney. Noting
Jones’s anger and frustration at having been “misled,”
“disrespected,” and “ignored” by his counsel, Summerton
indicated that this “lack of trust” could negatively affect
Jones’s ability to consult with his attorney and assist in his
defense. Summerton qualified his response by saying that
Jones did possess “some competence” in this area, but
advised that counsel would need to be “apprised and
mindful of Mr. Jones’s particular needs,” including his
learning difficulties and his need for “continued availability
of his psychiatric medication regime” to enable Jones to
cooperate with counsel.
  Dr. Summerton’s statement that Jones’s assault on his
prior counsel was caused, in part, by “compromised
stability due to lack of psychotropic medication,” and his
insistence that counsel “ensur[e] the continued availability
of [Jones’s] psychiatric medication regime,” Summerton
Report, at 7, highlight the issue of the effect of Jones’s
sporadic compliance with his medication regime on his
                             18


competence. The record indicates that Jones’s compliance
was inconsistent over time. Both the Bureau of Prisons
report that Jones’s medication compliance had “fluctuated,”
and Jones’s own statement to the District Court that he
stopped taking his medication for two weeks to work on his
case, attest to his sporadic compliance with his medication
regime.
   While we do not hold that Jones’s sporadic compliance,
standing alone, is necessarily cause to question Jones’s
competency, where, as here, the record suggests that the
medication has noticeable effects on defendant’s faculties,
non-compliance may raise concerns that should be
addressed in a competency hearing. The record confirms
that Jones’s physicians felt that the medication had a
significant effect on his clarity of thought and ability to
assist in his defense. The Bureau of Prisons report stated
that the medication would facilitate Jones’s ability to
participate in legal proceedings by minimizing distracting
and preoccupying symptoms, and Dr. Summerton expressly
recommended that counsel ensure the continued
availability of Jones’s medications to improve his
cooperation. Jones himself also noticed the impact his
medication had on his functioning. During his
psychological evaluation, Jones informed Dr. Summerton
that
    [H]e attributed his loss of control and assaultive
    behavior in large part to the fact that he was not taking
    his psychotropic medication at the time of the [ ]
    hearing. He said that the (anti-psychotic) medication
    Seraquel affords him more “control” and “slows (him)
    down to think” more rationally about his prevailing
    circumstances. Without the benefit of his medication,
    Mr. Jones stated that his “mind is (messed) up”;
    however, when the medication “straightens (him) out”,
    he has “time to think” and then can be “held
    accountable” for his actions.
Summerton Report, at 4. Jones also discussed the effects of
his medication with the District Court during his December
6, 2001 sentencing hearing. He remarked that “I got a lot
of different problems going on inside of me so, you know, I
don’t even know what’s going on sometimes. And especially
                             19


[when] . . . I wasn’t under my medication so I didn’t know
what was going on.” The physicians’ and Jones’s testimony
that Jones’s medications had a significant effect on his
ability to think clearly and assist in his defense, combined
with the evidence that Jones’s compliance was sporadic,
obligated the District Court to address at a hearing the
severity of Jones’s non-compliance and its relationship to
his competence. Instead, the District Court failed even to
establish whether Jones was or was not taking his
medications at the time of sentencing, despite the Court’s
express recognition of Jones’s “underlying psychological
disorder” when granting him a sentencing reduction for
acceptance of responsibility.
  Violent behavior, such as that exhibited by Jones in the
courtroom when he became upset and assaulted his prior
counsel, is also an appropriate factor for us to consider in
determining whether the District Court should have
conducted a competency hearing. While “[a]gitated or
violent courtroom antics alone do not mandate a finding by
the trial court of reasonable cause [to hold a competency
hearing],” see Leggett, 162 F.3d at 244 (quoting United
States v. Lebron, 76 F.3d 29, 31 (1st Cir.), cert. denied, 518
U.S. 1011 (1996)), evidence of irrational behavior is one
factor that courts must consider when evaluating
competency. Leggett, 162 F.3d at 242 (quoting Drope, 420
U.S. at 180). As the Summerton Report suggested, Jones’s
assaultive behavior may be reflective of his difficulty
cooperating with counsel. Jones himself indicated that he
lost his temper because he felt he had been “misled” by his
attorney, and that his attorney had not been treating him
appropriately. Any such difficulty cooperating with counsel
could have compromised Jones’s ability to assist in his
defense, thereby creating reasonable cause to doubt Jones’s
competency to proceed to sentencing.
  Having considered the unique circumstances of this case,
Leggett, 162 F.3d at 242, we conclude that the
Government’s    request   for   a   competency    hearing,
Summerton’s     report   finding   “clinically  significant
impairment” and only “some ability to cooperate with
attorneys in his defense,” the impact of Jones’s sporadic
compliance with his medication on his ability to assist in
                             20


his defense, and Jones’s violent in-court behavior, all
combined to create reasonable cause to doubt Jones’s
competence. The District Court’s unexplained failure to
hold a competency hearing after expressly agreeing to do so
constituted error.
   The factors we have just discussed, which created
reasonable cause to doubt Jones’s competence, are by no
means the only permissible ones for courts to consider
when determining whether to hold a competency hearing.
However, the presence here of other factors which could be
consistent with competency does not vitiate our conclusion
that reasonable cause existed under the unique
circumstances of this case.
   Some courts have relied on the general principle that
“defense counsel will often have the best-informed view of
the defendant’s ability to participate in his defense,” Medina
v. California, 505 U.S. 437, 450 (1992), to support the
proposition that “an attorney’s representation about his
client’s competency” may be relevant to whether reasonable
cause to hold a hearing exists. Renfroe, 825 F.2d at 767
(citing United States v. Metcalfe, 698 F.2d 877 (7th Cir.
1983)). In Renfroe, the defendant’s trial counsel testified to
Renfroe’s inability to assist in structuring his own defense.
Id. Conversely, in Metcalfe, when the defendant himself
moved for a psychiatric evaluation on the eve of trial, his
counsel refused to file the motion, and informed the court
that “he had not found the defendant unable to cooperate
in planning his defense.” The District Court denied the
defendant’s motion, and the Seventh Circuit affirmed.
Metcalfe, 698 F.2d at 879. Both Renfroe and Metcalfe,
unlike this case, involved affirmative representations on the
part of defense counsel as to their clients’ competence or
lack thereof. In the instant case, neither Jones’s prior
counsel nor his current counsel raised concerns regarding
Jones’s competency. Where, as here, we are engaging in
plenary review of the District Court’s decision, we cannot
afford appreciable weight to defense counsel’s silence as to
Jones’s competency, given the absence of any evidence in
the record that might explain why he chose not to raise the
issue.
                              21


   Another factor a district court may consider in
determining whether to hold a hearing is its personal
observation of the defendant’s demeanor in the court room.
Jones’s multiple appearances provided the District Court
with a first-hand opportunity to weigh the medical and
other evidence before it against its own experience with
Jones to determine if there truly was “reasonable cause to
believe [Jones] . . . mentally incompetent to the extent”
necessary to warrant a hearing. Having no opportunity to
observe the defendant first-hand, we must rely on the
record before us to provide any evidence of his demeanor.
Had the District Court made factual findings regarding
Jones’s demeanor, we would review those findings for clear
error. However, no such findings were made in this case,
and in their absence, we exercise plenary review.
Accordingly, we may not defer to the District Court on this
issue or draw inferences as to the extent to which he
considered Jones’s demeanor and whether that demeanor
weighed in favor of a finding of reasonable cause to hold a
competency hearing.
  Having determined that the District Court was required
to hold a competency hearing, we must now consider the
appropriate remedy for its failure to do so. Given the
inherent    difficulties in    retrospective   competency
evaluations, nunc pro tunc evaluations are not favored.
Drope, 420 U.S. at 183; Renfroe, 825 F.2d at 767. However,
as we stated in United States v. Renfroe:
    such a determination may be conducted if a
    meaningful hearing on the issue of the competency of
    the defendant at the prior proceedings is still possible.
    . . . The District Court is in the best position to
    determine whether it can make a retrospective
    determination of [the defendant’s] competency during
    his . . . sentencing.
Renfroe, 825 F.2d at 767. If the District Court concludes
that a retrospective determination of Jones’s competency is
still possible, it shall hold a competency hearing. If Jones is
deemed to have been competent, no new sentencing will be
required. Id. If the District Court determines that a
meaningful hearing is no longer possible, Jones’s sentence
must be overturned and a new sentence imposed when he
                              22


is judged competent to proceed. Id. Accordingly, we will
remand this case to the District Court for proceedings
consistent with this opinion.
IV.   Conclusion
  For the foregoing reasons, we will affirm the District
Court’s denial of Jones’s motion to withdraw his guilty plea.
With respect to the District Court’s failure to hold a
competency hearing, we will vacate the judgment and
remand to the District Court for proceedings consistent
with this opinion.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit
