Cross can’t withdraw pleaPublished 6:22pm Tuesday, June 19, 2012
Former Niles city police officer Ivery Cross III cannot withdraw his guilty plea to go to trial, Berrien County Trial Court Judge Scott Schofield ruled Monday.
Schofield denied Cross’s motion to take back guilty pleas to three counts of second-degree criminal sexual conduct and one of misconduct of office, reduced from first-degree CSC, punishable by up to life in prison.
Schofield sentenced Cross to five to 15 years in prison on May 27, 2011. Cross moved to withdraw his guilty pleas on Nov. 22, 2011. The court heard the motion on Feb. 16.
Cross claimed he didn’t know he could spend as many as 15 years behind bars and blamed former attorney Andrew Burch, who has done criminal defense work for 36 years, for not adequately warning him.
Cross was accused of sexually assaulting on March 17, 2011, at the Niles Law Enforcement Center a 19-year-old inmate he arrested for marijuana possession.
The alleged victim claimed it did not end there. The defendant contacted him after his release requesting they get together for another encounter, prompting the alleged victim to go to the state police.
Judge Gary Bruce accepted the plea on April 19, 2011, explaining the maximum penalty for second-degree CSC was 15 years in prison, while misconduct in office carried a five-year maximum. Cross received 23 to 60 months.
In a guilty-plea case, the focus of an ineffective-assistance claim is whether a plea was offered freely and knowingly. Was the decision made voluntarily based on adequate legal advice?
According to court documents, this exchange took place between the Judge Bruce and Cross: “You understand that if I accept your plea, you can’t come back in later and tell me or another judge that you pled guilty because of some force, fraud, tricks or promises that you didn’t tell me about today,” to which the defendant replied, “Yes, your honor,” then proceeded to offer a factual basis for his pleas.
While under oath, Cross also pronounced himself satisfied with his lawyer’s representation.
Under oath, Cross made no mention of any promises of boot camp, good-time sentence reductions, local sex-offender programs, tether or probation.
“He cannot now be heard to claim that his trial counsel actually did make additional promises to him,” said Schofield, who found Burch’s testimony “both consistent and credible,” while Cross was “not a credible witness.”
Cross was college-educated, a graduate of a police academy and “no neophyte unaccustomed to the arcane terminology of the law,” Schofield found. “He was a police officer … he had recently been the arresting officer in a serious CSC case and participated in a conference with the victim about what sentence the offender might receive.
“That an intelligent police officer could somehow walk away from those proceedings with the understanding that he could spend no more than 71 months in prison is preposterous,” Schofield wrote in his 17-page opinion. “Defendant’s far-fetched claim casts serious doubt on the credibility of the rest of his testimony
“The most plausible explanation for defendant’s decision to accept the plea offer is not Mr. Burch’s ineffectiveness,” the judge wrote. “The court finds that Mr. Burch neither lied, misled nor gave bad advice … The most believable explanation is that offered by Mr. Burch himself: His client demanded a plea deal. Defendant had made a recorded confession of a shocking, disturbing and embarrassing crime, a crime that he had apparently denied repeatedly to his family and friends. Mr. Burch reports that defendant’s confession was abrupt, convincing and powerful.
“At one point (Cross) took kind of a deep breath … and he said, ‘I have to quit lying,’ ” Burch testified.
“Hindsight provides no basis for withdrawal of his guilty plea,” the judge said.