TimesLeader.com

November 13

Guilty plea should be withdrawn

Pa. Superior Court says Conahan erred by failing to ask series of questions.

By Terrie Morgan-Besecker tmorgan@timesleader.com
Law & Order Reporter

WILKES-BARRE – A woman sentenced to five to 10 years for a robbery has been granted permission to withdraw her guilty plea based on former judge Michael Conahan’s failure to conduct a colloquy – a series of questions that ensure a defendant understands the ramifications of pleading guilty.

The failure to conduct a colloquy in juvenile proceedings is among the key issues that recently led the state Supreme Court to vacate the convictions of thousands of juveniles who appeared before former judge Mark Ciavarella.

The case of 21-year-old Tiffany Simonson shows the problem was also present in adult court in Luzerne County.

Simonson, formerly of Larksville, was sentenced in July 2008 for her role in the robbery of Javier Ortiz on March 23, 2007. Police said Simonson and a second person threatened Ortiz with a gun, bound him with duct tape and robbed him of $80.

The state Superior Court overturned Simonson’s conviction last month based on the fact Conahan failed to ask her any of the questions that are required to be asked of a defendant when they plead guilty.

The court said that, based on that violation, Simonson should be granted permission to withdraw the guilty plea, which means the case will now come back to county court.

Attorney Douglas Earl of Philadelphia, who handled Simonson’s appeal, said he was stunned by the brevity of Simonson’s guilty plea. The transcript of the proceeding is just two pages long and shows that Conahan did not ask any of the half dozen questions that are required during a colloquy.

“It was so deficient it was mind boggling,” Earl said. “At a minimum a judge has to inquire of a defendant if she knows the charges she’s pleading guilty to.”

The problems with the colloquy were so serious that the Luzerne County District Attorney’s office did not oppose Simonson’s appeal. The office filed a legal brief, acknowledging the colloquy was deficient and that Conahan was wrong to have denied Simonson’s request to withdraw her guilty plea.

Ciavarella, who is Conahan’s co-defendant in a corruption case, has been harshly criticized for his failure to conduct colloquies for juvenile offenders. That issue, coupled with Ciavarella’s alleged acceptance of money from the owner and builder of a juvenile facility, were among the reasons the Supreme Court overturned the convictions on an estimated 6,500 juveniles who appeared before him from 2003 to 2008.

Attorneys who were present during juvenile proceedings have also come under fire for failing to take action that might have halted Ciavarella’s practice of not conducting the colloquies.

Earl said the colloquy is a procedural safeguard put in place to ensure defendants fully understands the rights they are giving up when they forgo a trial and plead guilty. He said the attorneys in adult proceedings also have a responsibility to ensure that procedure is followed.

“Miss Simonson clearly was not afforded the procedural safeguards guaranteed by law,” Earl said. “Attorneys cannot watch basic procedures not be followed without saying something. That includes the District Attorney’s Office, which has the job of making sure justice is administered.”

Simonson was represented at her guilty plea hearing by attorney John Hakim of Kingston.

In a recent interview, Hakim said he could not recall specifics about Simonson’s plea hearing. He acknowledged that judges – not just Conahan – do not always conduct thorough colloquy due to the high volume of cases they handle.

“I think it was a speed issue for certain judges. They’re trying to do tons and tons of cases. They bang them out one after another to try to cut down the caseload,” Hakim said.

Hakim said regardless of how thorough Simonson’s colloquy was, he’s certain she fully understood the ramifications of entering the plea because he spoke to her numerous times before the plea hearing.

“We went over it many times. If I was there and did not speak up, I presume she understood what was going on from our private conversations,” he said.

The District Attorney’s Office was represented at the hearing by Attorney David Pedri. First Assistant District Attorney Jeff Tokach said he suspects Pedri didn’t say anything because Simonson was represented by an attorney who was protecting her interests.

“She was represented by counsel. He knew what the deal was,” Tokach said. “A colloquy does not have to be perfect as long as a judge is convinced the defendant is knowingly and voluntarily entering the plea.”

Tokach agreed colloquies are meant to protect defendants’ rights. But he said they also protect prosecutors so that an offender can’t come back later and say they didn’t understand what they were doing.

“If that did not happen, we would not be put in the position of having to re-prosecute this case,” he said of Simonson.

Simonson’s case has been placed on the January trial list. Earl said it’s not clear yet whether the case will go to trial or if he’ll try to work out some other plea agreement.

“I just hope the District Attorney’s Office does not treat Miss Simonson more harshly because the Superior Court granted her appeal,” he said.

Terrie Morgan-Besecker, a Times Leader staff writer, may be reached at 570-829-7179.