Fourth Department sends case back to county court over question of youthful offender status

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A state appeals court has sent a sex abuse case back to the lower court for a second time to address the defendant’s request to withdraw a guilty plea and to decide if the defendant should be granted youthful offender status.

Defendant Brandon Hemingway pleaded guilty to first-degree criminal sexual act in October 2019 in Onondaga County Court before Judge Stephen J. Dougherty.

Hemingway appealed the conviction and, in a decision released Nov. 10, the Appellate Division of state Supreme Court Fourth Department reserved decision and sent the case back to County Court.

The court reversed the conviction and vacated the plea because Dougherty didn’t tell Hemingway that his sentence would include a period of post-release supervision.

When the case went back to Dougherty, Hemingway again pleaded guilty and was sentenced to 15 years in state prison, plus five years of post-release supervision.

Hemingway appealed the conviction again. His appellate lawyer, Sara A. Goldfarb, argued, and the prosecutor conceded, Hemingway’s waiver of his right to appeal is unenforceable and Dougherty never ruled on whether Hemingway should be given youthful offender treatment.

The court wrote in the decision that Hemingway’s trial attorney “improperly took a position adverse to defendant on his pro se motion to withdraw his plea and provided him with inaccurate advice about the legal consequences of our prior ruling.”

Several months after Hemingway pleaded guilty, he submitted a pro se motion seeking to withdraw the plea. His trial attorney “refused to adopt defendant’s pro se motion and, in response to questioning by the court, explained that the reason therefor was that he did not see any grounds for the motion,” according to the most recent Fourth Department decision.

Hemingway ultimately withdrew his motion and Dougherty sentenced him.

“Although defense counsel has no duty to support the pro se motion of a defendant to withdraw a plea of guilty, defense counsel deprives a defendant of effective assistance of counsel by taking a position adverse to defendant,” the Fourth Department panel wrote.

“By stating that there were no grounds for defendant’s pro se motion, defense counsel essentially said that it lacked merit, which constitutes taking a position adverse to defendant,” the court wrote.

The Fourth Department also agreed with Goldfarb’s argument that Hemingway’s trial attorney gave him erroneous information about the initial decision from the Fourth Department.

“It appears from the record that defense counsel advised defendant that the issues raised by defendant in his pro se motion to withdraw his plea had already been decided against him in the prior appeal,” the panel wrote.

“The court agreed with defense counsel’s interpretation of our ruling. Both defense counsel and the court were incorrect,” the Fourth Department wrote.

“In the prior appeal, defendant did not raise, and we did not address, any of the contentions advanced by defendant in his pro se motion to withdraw his plea. Although defendant at sentencing withdrew his pro se motion to withdraw his plea, we cannot conclude from the record that his decision to do so was not likely affected by the inaccurate advice he received from counsel,” the panel wrote.

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