Judges Opinions, — September 3, 2024 15:01 — 0 Comments
Commonwealth of Pennsylvania v. Eric J. Bates
Commonwealth of Pennsylvania v. Eric J. Bates
Criminal Action-Law-Motion for Recusal of Prosecutor-Conflict of Interest-Former Counsel for Defendant-Employee of District Attorney’s Office-Substantially Related Matters-Materially Adverse Interests-Actual Conflict-Presentencing Withdrawal of Guilty Plea-Discretion of the Court-Liberal Allowance-Fair and Just Reason for Withdrawal-Substantial Prejudice to the Commonwealth
Eric J. Bates (“Defendant”) was charged with Aggravated Assault of a police officer and related offenses. While represented by an attorney employed by the Lebanon County Public Defender’s Office, Defendant entered a negotiated guilty plea under which the Aggravated Assault charge would be reduced to Simple Assault in exchange for a sentence of four (4) to six (6) months’ imprisonment with the sentencing court to determine the minimum sentence. Defendant’s attorney subsequently resigned from the Lebanon County Public Defender’s Office and commenced employment with the Lebanon County District Attorney’s Office. Prior to sentencing, Defendant filed a Motion seeking withdrawal of his guilty plea and recusal of the Lebanon County District Attorney’s Office from prosecuting the case on the basis that a conflict of interest existed during plea negotiations such that his interests were not represented adequately by his former attorney.
1. Pennsylvania Rule of Professional Conduct Rule 1.9 provides that a lawyer who formerly has represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests materially are adverse to the interests of the former client.
2. Matters are substantially related if there is a substantial risk that confidential information obtained in the prior representation materially would advance the client’s interest in the subsequent matter.
3. A prosecutor is barred from handling a criminal action when an actual conflict of interest exists in the case with no requirement for a defendant to prove actual prejudice for the prosecutor to be removed in the case.
4. The mere allegation or appearance of impropriety is insufficient to establish an actual conflict of interest.
5. A more objective and flexible standard that requires a case by case determination of whether the acts of a prosecutor actually have tainted the proceedings.
6. The court closely will look at the specific facts of a case and any remedial measures to determine whether an actual conflict of interest exists.
7. An actual conflict that would preclude the entire staff of the District Attorney’s Office from handling a case would involve a situation in which the District Attorney’s partiality would appear to be compromised.
8. While Defendant’s former attorney may not participate in the case, disqualification of the entire staff of the District Attorney’s Office is not warranted where there is no allegation that any member of the Office could obtain any personal benefit from the matter and the remedial procedures outlined in a Memoranda avoids any problems that could result from the former representation of Defendant.
9. Pa.R.Crim.P. Rule 591(A) provides that at any time before the imposition of sentence, the court may in its discretion permit the withdrawal of a guilty plea.
10. Presentence guilty plea withdrawal is to be allowed liberally if the defendant demonstrates a fair and just reason for withdrawing the plea and withdrawal of the plea would not cause substantial prejudice to the Commonwealth.
11. A plausible claim of innocence supported by some facts or evidence of record constitutes a fair and just reason for allowing a pre-sentence withdrawal of a guilty plea.
12. In light of the fact that the Commonwealth failed to show any prejudice that would result from the withdrawal of the guilty plea and Defendant demonstrated a fair and just reason for withdrawal of his guilty plea, leave will be granted for withdrawal of the guilty plea.
L.C.C.C.P. No. CP-38-CR-0000528-2022, Opinion by John C. Tylwalk, President Judge, September 13, 2023.
IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA : NO. CP-38-CR-528-2022
:
v. :
:
ERIC J. BATES :
ORDER OF COURT
AND NOW, this 13th day of September, 2023, upon consideration of Defendant’s Motion for Recusal of District Attorney and Motion to Withdraw Guilty Plea, the evidence adduced at the hearing conducted on August 2, 2023, and the Briefs submitted by the parties, it is hereby Ordered as follows:
1. Defendant’s Motion for Recusal of District Attorney is DENIED. It is further Ordered that Kevin Dugan, Esquire, Assistant District Attorney, is prohibited from engaging in any of the following activities, among others: discussions with other members/personnel of the Office of the District Attorney of Lebanon County or anyone else in any way connected with this case, receiving or sending any form of verbal or written communication or correspondence, including notices, letters, pleadings, phone calls, e-mails or faxes; or examining the contents of the District Attorney’s files of these cases.
2. Defendant’s Motion to Withdraw Guilty Plea is GRANTED.
BY THE COURT:
____________________________, P.J.
JOHN C. TYLWALK
JCT/jah
Cc: Nichole Eisenhart, Esquire/First Assistant District Attorney
Shannon Pascal, Esquire/Assistant Public Defender
Leslie Fillak/Court Administration
Judith Huber, Esquire/Law Clerk
IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA : NO. CP-38-CR-528-2022
:
v. :
:
ERIC J. BATES :
APPEARANCES:
NICHOLE EISENHART, ESQUIRE FOR THE COMMONWEALTH
FIRST ASSISTANT DISTRICT ATTORNEY
SHANNON S. PASCAL, ESQUIRE FOR ERIC J. BATES
ASSISTANT PUBLIC DEFENDER
OPINION, TYLWALK, P.J., SEPTEMBER 13, 2023.
Defendant is charged with one count of Aggravated Assault[1] of a police officer, one count of Resisting Arrest[2] and the summary offense of Disorderly Conduct Towards Police Officer[3] for an incident which occurred on January 29, 2022 in the City of Lebanon. On October 14, 2022, Kevin Dugan, Esquire, then an Assistant Public Defender, entered his appearance on behalf of Defendant. On February 23, 2023, Defendant entered a negotiated plea and Sentencing was scheduled for April 26, 2023. Subsequent to the entry of Defendant’s guilty plea, Attorney Dugan left the Public Defender’s Office and accepted employment as an Assistant District Attorney with the Lebanon County District Attorney’s Office. After present defense counsel was appointed to handle his representation, Defendant filed a Motion to Withdraw his Guilty Plea and a Motion for Recusal of the District Attorney. We conducted a hearing on these Motions on August 2, 2023. The transcript of that hearing has been lodged, the parties have filed post-hearing Briefs, and these matters are now before us for disposition.
At the hearing, Attorney Dugan explained that his employment with the Public Defender’s Office terminated on March 17, 2023 and he began his employment with the District Attorney’s Office on March 20, 2023. While he was employed by the Public Defender’s Office, he represented Defendant and had several conversations with Defendant about this case, which involves a domestic incident with police response. Attorney Dugan negotiated a plea bargain for Defendant whereby the Aggravated Assault charge (for which all ranges called for state time due to his prior record) would be reduced to Simple Assault (which allowed for local time). The plea bargain called for a period of incarceration of between four to six months with the Sentencing Judge to decide the minimum. The plea negotiations occurred prior to Attorney Dugan meeting with District Attorney Pier Graf Hess to discuss his potential employment with that office.
Attorney Dugan confirmed that he has not accessed Defendant’s file and has not discussed or disclosed any information or communication regarding this matter with anyone. Attorney Dugan further confirmed that he was fully aware of his ethical obligations as Defendant’s former defense counsel. He assured the Court that he would continue to separate himself from anything pertaining to the case and to keep all communications and information he had about the case confidential.
On cross-examination, Attorney Dugan acknowledged that he does attend staff meetings with the other members of the District Attorney’s Office and that, at times, cases in which he was involved in the Public Defender’s Office are discussed. He explained that he leaves the room during those discussions. Attorney Dugan also confirmed that the District Attorney’s Office maintains physical paper files and that case files are also stored electronically and placed on a shared drive. He further acknowledged that, theoretically, anyone in the office could access both types of files.
Attorney Dugan confirmed that he represented Defendant from the time of the preliminary hearing and met with him on several occasions. They first met for an initial intake. They subsequently met to discuss discovery and to watch the video from the body cam of one of the police officers. He also met with District Attorney Pier Hess Graf to discuss the case and believed that he might have negotiated with one of the Assistant District Attorneys before that meeting. He recalled having an in-person meeting with District Attorney Graf and Brian Deiderick, Esquire, the former Public Defender of Lebanon County. He noted that the information exchanged at those meetings would not have been privileged, but would have been information regarding Defendant’s employment, personal history, and current situation which was obtained through conversations with Defendant. Attorney Dugan recalled that he represented Defendant at his plea hearing and had reviewed the colloquy with him prior to the hearing.
On redirect, Attorney Dugan confirmed that he had never accessed Defendant’s paper or electronic file in the District Attorney’s Office and would not do so. During plea negotiations, he had stressed favorable information about Defendant’s work and family life in order to avoid him having a lengthy prison sentence and to facilitate his participation in the work release program.
Upon questioning by the Court, Attorney Dugan indicated that Defendant’s case had never been brought up at the District Attorney staff meetings he had attended. The issue of his prior representation of Defendant had only come up when Defendant filed the Motion for Recusal accusing Attorney Dugan of having negotiated the plea agreement in bad faith. The Commonwealth submitted Exhibit “1”, a memorandum prepared by the District Attorney regarding conflicts of interest which could arise due to the transfer of Attorneys Dugan and Deiderick and Certified Legal Intern Christopher Rothermel from the Office of the Public Defender to the District Attorney’s Office. Attorney Dugan assured the Court that he was familiar with the conflict of interest policy set forth in the memorandum and that he has complied with that policy with regard to this case.
In his Motion for Recusal, Defendant asks that we find that the entire staff of the Lebanon County District Attorney’s Office is disqualified from handling further proceedings in this matter and that we refer the case to the Attorney General’s Office for prosecution. In his Motion to Withdraw Guilty Plea, Defendant requests leave to withdraw his plea, contending that a conflict of interest existed during plea negotiations such that he was not adequately represented by Attorney Dugan, that he has conferred with present defense counsel, that he has maintained his innocence throughout these proceedings, and that the Commonwealth will suffer no prejudice as a result of the withdrawal of his plea.
We have recently addressed a similar situation in Commonwealth v. Young, No. CP-38-CR-977-2022, Slip Opinion, July 17, 2023, Tylwalk, P.J. That case involved a defendant’s request that we refer his case to the Attorney General because his co-defendant’s prior defense counsel, former Chief Public Defender Brian Deiderick, Esquire, had joined the staff of the Lebanon County District Attorney’s Office at the same time as Attorney Dugan. The defendant contended that Attorney Deiderick’s employment as an Assistant District Attorney created a conflict of interest as Attorney Deiderick had learned confidential information regarding the defendant through his prior representation of his co-defendant.
In Young, the Commonwealth also submitted the memorandum of the District Attorney’s conflict of interest policy. We noted the following excerpt from that memorandum:
Cases In Which One of the Above Attorneys Represented the Defendant on a Current Pending Case in this Office: In this circumstance, a screening-off must and will immediately occur. Screening-off of an attorney means that no one in the District Attorney’s Office shall speak to or provide information to the conflicted attorney, nor attempt to gain any information from the conflicted attorney, regarding the Defendant or that pending case. The screened-off attorney is also ethically bound to ensure that they do not disclose any confidential information regarding that Defendant or their
case.
(Exhibit “1” – Memorandum dated 5/1/23 from District Attorney Pier Hess Graf to President Judge Tylwalk; Commonwealth v. Young, supra at 4).
We then noted the prohibition of Rule of Professional Conduct 1.9 that “[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client.” Under this Rule, matters are substantially related if there is a substantial risk that confidential information obtain in the prior representation would materially advance the client’s interest in the subsequent matter. Commonwealth v. Young, supra at 6, citing Commonwealth v. Ford, 122 A.3d 414, 416-417 (Pa. Super. 2015).
In the Young Opinion, we observed that a prosecutor is barred from handling a criminal action when an actual conflict of interest exists in the case and that a defendant is not required to prove actual prejudice for the prosecutor to be removed in the case of an actual conflict. Commonwealth v. Young, supra at 6, citing Commonwealth v. Ford, 122 A.3d 414 (Pa. Super. 2015); Commonwealth v. Eskridge, 604 A.2d 700 (Pa. 1992). However, we further noted that a mere allegation or appearance of impropriety is insufficient to establish an actual conflict of interest and that a more objective and flexible standard which requires a case-by-case determination of “whether the acts of a public prosecutor have actually tainted the proceedings.” Commonwealth v. Young, supra at 6, quoting Commonwealth v. Harris, 460 A.2d 747, 749 (Pa. 1978).
Thus, individual rather than vicarious disqualification is the general rule. Commonwealth v. Miller, 422 A.2d 525 (Pa. Super. 1980). The fact that an attorney or employee of a Public Defender’s Office has moved to the Office of the District Attorney does not necessarily compel disqualification of the entire District Attorney’s Office. Commonwealth v. Sims, 799 A.2dat 857. If the conflict of interest lies with an assistant district attorney, the entire district attorney’s office is not necessarily disqualified. Id. The courts will look closely at the specific facts of the case and any remedial measures to determine whether any actual conflict of interest exists. While the trial court may find that some cases should be referred to the Office of the Attorney General, the trial court may also find that the issuance of a screening order will cure any conflict that arises with the employee or attorney. Id.
Commonwealth v. Young, supra at 7. All recusal motions are fact-specific and that each case requires a factual hearing in order to determine whether an actual conflict exists, whether confidential information has been disclosed, to determine whether any measures may be implemented to avoid a disclosure and for the court to decide whether it is necessary for the entire office of a District Attorney is disqualified from prosecuting a case. See, Commonwealth v. Ford, 122 A.3d 414 (Pa. Super. 2015).
After examining a number of cases, we concluded that an actual conflict which would preclude the entire staff of the District Attorney’s Office from handling the prosecution of a case would involve a situation in which the District Attorney’s partiality would appear to be compromised. For example, an actual conflict would be found if the prior representation created the potential for some sort of benefit to inure to the District Attorney herself. This could be a potential monetary gain involving the District Attorney’s private practice. See, Commonwealth v. Eskridge, supra,. An actual conflict could also exist in cases where a prosecutor with administrative control over all cases has formerly represented the particular defendant seeking recusal due to the appearance of the potential for a breach of confidence. Commonwealth v. Miller, 422 A. 2d at 528.
Due to Attorney Dugan’s prior representation of Defendant, he is, of course, disqualified from handling the prosecution of this matter:
Where a lawyer who has represented a criminal defendant joins a prosecutor’s office, disqualification of the entire office is not necessarily appropriate. That lawyer is of course disqualified from participating in the case on behalf of the prosecution. But individual rather than vicarious disqualification is the general rule.
Commonwealth v. Smith, 835 A.2d at 401, citing Commonwealth v. Miller, 422 A.2d at 529.
Defendant has referred us to several cases which dealt with motions to disqualify private counsel in civil matters. Fetterman v. Cochran, 289 A.3d 75 (Pa. Super. 2022) (unpublished, non-precedential decision) (custody case); Dworkin v. General Motors Corp. 906 F. Supp. 273 (E.D. Pa. 1995) (action under Pennsylvania Lemon Law), adopted in Darrow v. PPL Electric Utilities Corp., 266 A.3d 1105 (Pa. Super. 2021) (personal injury action). The courts in those cases noted a number of factors to be considered in determining whether the law firm of an attorney who had previously represented a litigant at a different firm should be disqualified from representing the previous client’s adversary in a civil matter. These factors included the size of the firm and the number of disqualified attorneys, the adequacy of a screening policy, the substantiality of the prior relationship, lapse of time and the timing of the wall. Depending on the circumstances of a case, these considerations may certainly be relevant in the situation where a prior defense attorney joins a prosecutor’s office, we note that the “district attorney is not an advocate in the ordinary sense of the term; his duty is to seek justice, to protect the innocent as well as to convict the guilty.” Commonwealth v. Miller, 422 A.2d 525, 529 (Pa. Super. 1980). Thus, instead of an appearance of impropriety standard, the courts “prefer to rely upon the integrity of the district attorneys of this Commonwealth not to participate in the prosecution of cases when such participation would generate an appearance of impropriety.” Id.
Based upon the circumstances of this case, we find that the disqualification of the entire staff of the District Attorney’s Office is unwarranted. There is no allegation that Attorney Dugan, District Attorney Graf, or any other member of the District Attorney’s Office could obtain any personal benefit from this matter. Attorney Dugan is an Assistant District Attorney and there is no evidence that he would have any supervisory or administrative control over these matters or the Assistant District Attorney who will be assigned to handle the prosecution. Attorney Dugan has been forthcoming about his possible exposure to matters concerning this case and has explained the measures he has taken to distance himself from any discussions or information about the case. He has assured the Court that he has not accessed Defendant’s file and has not disclosed any information to other staff members. We have full faith in his representations that he will not do so in the future.
Thus, we conclude that the procedures outlined in the District Attorney’s Memorandum and our issuance of an appropriate screening Order will avoid any problems which could result from Attorney Dugan’s previous representation of Defendant. We will therefore deny Defendant’s Motion for Recusal and issue an Order prohibiting Attorney Dugan from participating in this case. However, we find that the prosecution of this matter by other members of the District Attorney’s Office is appropriate and will not be prohibited.
However, we will grant Defendant’s Motion to Withdraw his guilty plea. Pa.R.Crim.P. 591(A) provides that “[a]t any time before the imposition of sentence, the court may, in its discretion, permit, upon motion of the defendant, … the withdrawal of a plea of guilty or nolo contendere and the substitution of a plea of not guilty.” Pa.R.Crim.P. 591(A). Where a defendant requests to withdraw his guilty plea before he is sentenced, the trial court has discretion to grant the withdrawal and that discretion is to be liberally exercised to permit withdrawal of the plea if two conditions are present: (1) the defendant demonstrates a fair and just reason for withdrawing the plea, and (2) it is not shown that withdrawal of the plea would cause substantial prejudice to the Commonwealth. Commonwealth v. Jamison, 284 A.3d 501, 505 (Pa. Super.2022), citing Commonwealth v. Carrasquillo, 115 A.3d 1284, 1291-1292 (Pa. 2015).
A plausible claim of innocence, supported by some facts or evidence in the record, constitutes a fair and just reason for allowing pre-sentence withdrawal of a guilty plea. Commonwealth v. Garcia, 280 A.3d 1019, 1023, 1025-27 (Pa. Super. 2022). Where, however, the defendant merely makes a bare assertion that he is innocent without any proffer of any supporting basis for that claim, the trial court in its discretion may deny withdrawal on the ground that the defendant has not shown a fair and just reason for withdrawal of the plea. Commonwealth v. Norton, 201 A.3d 112, 120-23 (Pa. 2019).
The Commonwealth has failed to show any prejudice which would result from Defendant’s withdrawal of his guilty plea and we believe Defendant has demonstrated a fair and just reason for withdrawing his plea. Due to Attorney Dugan leaving the Public Defender’s Office, Defendant was assigned new counsel subsequent to the entry of his plea. After consultation with his new counsel, Defendant has determined that he is innocent of the charges involved in this case and that his entry of a guilty plea was not in his best interest. Although we are adamant that there was no wrongdoing on the part of Attorney Dugan in negotiating the plea bargain on behalf of Defendant and in assisting Defendant in the entry of his plea, we believe that Defendant is entitled to proceed in this matter as per his discussions with his present counsel. We will therefore enter an Order granting Defendant leave to withdraw his plea.
[1] 18 Pa.C.S.A. §2702(a)(3).
[2] 18 Pa.C.S.A. §5104.
[3] Lebanon City Ordinance 705.25.
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