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State v. LLoyd Millett
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Decision:1998 ME 223
Argued:	September 9, 1998
Decided:October 2, 1998




	[¶1]  Defendant Lloyd Franklyn Millett appeals from judgments of
conviction on two counts of murder (Androscoggin County, Delahanty, J.)
(17-A M.R.S.A. § 201(1)(A) (1983)) entered on his pleas of guilty.  Defendant
argues on appeal that the court erred in denying his initial motion to remove
his  court-appointed attorney and his subsequent motion to withdraw his
guilty pleas.  Finding no error, we affirm the judgments.
	[¶2] The relevant facts may be summarized as follows:  Defendant was
indicted in 1995 for two counts of murder.  Having been found indigent, he
requested and received representation by an experienced court-appointed
attorney.  Defense counsel filed numerous pretrial motions on his behalf,
such as a motion for the allowance of funds to hire a private investigator, and
a motion to defer mental  evaluation, both of which were granted.  He also
filed a motion for relief from prejudicial joinder and for separate trials,
which was denied.
	[¶3]  With trial scheduled for January 6, 1997, defendant filed a pro se
motion on December 24, 1996 to remove his counsel.  On January 3, the
court heard defendant's motion and denied it.  On the day of trial, prior to
jury selection, defendant entered guilty pleas to both counts of murder.
	[¶4]  On April 30, defendant filed a motion to withdraw his guilty pleas
and moved for appointment of new counsel.  After denying his request to
withdraw his pleas of guilty, the court granted his request for a substitute
counsel.  Represented by new counsel, defendant subsequently was
sentenced and this appeal followed.
  	[¶5] We conclude that the court did not abuse its discretion in denying 
defendant's initial motion to remove his attorney.  See State v. Goodine, 587
A.2d 228, 229 (Me. 1991).  As we have previously stated, a defendant's
assertion that his attorney is unprepared for trial is not sufficient in and of
itself to establish that he was denied his constitutional right of
representation.  See State v. Stinson, 424 A.2d 327, 331 (Me. 1981).  The
court did not abuse its discretion in finding that, contrary to defendant's
bald assertion that "I just think he isn't ready," defendant's attorney was
familiar with both the facts and legal issues of the case and had engaged in
significant pretrial proceedings and preparation.
	[¶6]  Further, we find that the court did not abuse its discretion in
denying defendant's later motion to withdraw his guilty pleas.  See State v.
Malo, 577 A.2d 332, 333 (Me. 1990).  Defendant does not argue that there
were any specific deficiencies in the hearing held in accordance with M. R.
Crim. P. 11 concerning the acceptance of his pleas, only that the hearing
was tainted by his relationship with counsel, and that therefore the hearing
was merely a "ritual."  Our review of the Rule 11 hearing, however,
demonstrates that the court properly addressed defendant in open court
concerning the necessary prerequisites to accepting the pleas.  On the basis
of defendant's responses, the court found that the pleas were made
knowingly, that the pleas were the product of defendant's free choice, and
that there was a factual basis for the charges. In denying his motion to
withdraw his pleas, the court properly considered "the length of time
between entering the plea and attempting to withdraw it, the potential
prejudice to the prosecution, [and] the defendant's assertions of innocence." 
Id. (citations omitted). 
	[¶7] Finally, defendant argues on appeal that the court should have
substituted counsel before it heard his motion to withdraw the guilty pleas. 
Although we recognize that an actual conflict of interest between an attorney
and client may result in a denial of adequate representation, there is no
conflict of interest demonstrated in this case.  The First Circuit has noted
that "'[c]ourts have recognized actual conflicts of interest between an
attorney and his client when pursuit of a client's interests would lead to
evidence of an attorney's malpractice.'" United States v. Sanchez-Barreto, 93
F.3d 17, 20 (1st Cir. 1996) (citations omitted).  In Sanchez-Barreto, the
court stated that defendant plainly alleged facts amounting to malpractice, if
found to be true, that is, defendant alleged in his motion to withdraw his
guilty plea that his attorney pressured him into pleading guilty to "hide [the
attorney's] lack of preparation" for the trial.  Id. at 21.  The court also noted
that, because the same attorney at the hearing on defendant's motion to
withdraw his guilty plea extolled the benefits of the plea agreement, stated
there were no errors in the Rule 11 plea colloquy, stated there were no
bases in law for his client's plea-withdrawal motion, stated that the client
was better off with the plea agreement, and that he did not understand why
his client wanted to withdraw his plea, the client was left to fend for himself
at hearing and thus was denied effective assistance of counsel at the hearing.
Id. at 21-22.  
	[¶8]  Unlike Sanchez-Barreto, defendant in this case did not allege as
the basis of his motion to withdraw his guilty plea that his attorney had
pressured him to enter the plea to cover up his incompetence; rather, as
the court noted,
[i]n reviewing the transcript as a whole and the record as a
whole, the court found, and I have an independent recollection
of this, that the defendant showed no hesitancy in entering his
plea at that time.  In fact, he was the one who told his attorney
to inform the court that he wanted to change his plea on the day
that the jury was present to begin the trial.  In fact, my
recollection is that [his attorney] showed more reluctance to
that than the defendant did.  
Moreover, defendant's attorney argued forcefully on defendant's behalf in
support of his motion to withdraw his guilty pleas.  Defendant fails to
establish even a colorable conflict of interest between him and his attorney. 
Accordingly, the court did not err in failing to appoint new counsel before
hearing defendant's motion to withdraw his guilty pleas.
	The entry is:
				Judgments affirmed.

Attorneys for State: Andrew Ketterer, Attorney General Donald W. Macomber, Asst. Atty. Gen., (orally) Thomas Goodwin, Asst. Atty. Gen. 6 State House Station Augusta, ME 04333-0006 Attorneys for defendant on appeal: Leonard I. Sharon, Esq., (orally) Sharon, Leary & DeTroy P O Box 3130 Auburn, ME 04212-3130 Mary Beth Crocket, Esq. P O Box 1258 York Beach, ME 03910