United States of America v. ROBERTO ROMÁN-ORENCH, a/k/a Tito Pecoso

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 13-2082
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERTO ROMÁN-ORENCH, a/k/a Tito Pecoso,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Howard, Chief Judge,
Lipez and Barron, Circuit Judges.
Xiomara M. Hernández on brief for appellant.
Rosa Emilia Rodríguez-Velez, United States Attorney, Nelson
Pérez-Sosa, Assistant United States Attorney, Chief, Appellate
Division, and Francisco A. Besosa-Martínez, Assistant United States
Attorney, on brief for appellee.
August 19, 2015

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HOWARD, Chief Judge. Appellant Roberto Román-Orench
seeks to have his guilty plea vacated because, he claims, the
district court failed to properly investigate whether the
medication he was taking affected his ability to competently plead
guilty. Román also argues that his trial counsel was
constitutionally deficient for failing to pursue the competency
issue. Finding nothing amiss, we affirm his conviction and dismiss
the latter claim without prejudice.
The genesis of Román's argument is the following
exchange, which occurred during his change of plea hearing:
THE COURT: Have you been treated for any
mental or physical condition?
MR. ROMÁN-ORENCH: Yes.
THE COURT: What condition?
MR. ROMÁN-ORENCH: I've been to a psychologist
for drug treatment.
. . . .
THE COURT: Did you take medication for that
psychological treatment?
MR. ROMÁN-ORENCH: I'm taking medication at
MDC.
THE COURT: And what are you taking?
MR. ROMÁN-ORENCH: The name? I don’t know the
name of the medication.
THE COURT: And the purposes then?
MR. ROMÁN-ORENCH: For anxiety and depression.
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The district court ultimately found that Román was "fully
competent and capable of entering an informed plea, that he is
aware of the nature of the charges and consequences of this plea,
and that the same is a knowing and voluntary plea." The court
accepted the plea and sentenced Román to ninety-two months'
imprisonment.
Román argues that the district court should have
questioned him more aggressively about the medication he referenced
and its effects on his ability to enter a voluntary and intelligent
plea. Specifically, he faults the court's failure to ascertain the
medication's name, dosages, and side effects, or to ask how
recently Román had taken it. In the absence of an objection below,
our review is for plain error; Román must show a clear or obvious
error which affected his substantial rights and seriously impaired
the fairness, integrity, or public perception of the proceedings.
United States v. Almonte-Nuñez, 771 F.3d 84, 89 (1st Cir. 2014).
It is well established that a criminal defendant may not
plead guilty unless he does so competently and intelligently.
United States v. Kenney, 756 F.3d 36, 43 (1st Cir.), cert. denied,
135 S. Ct. 770 (2014); see also Fed. R. Crim. P. 11(b)(2).
Accordingly, when a defendant states at a change of plea hearing
that he is taking medication, "the district court has a duty to
inquire into the defendant's capacity to enter a guilty plea."
United States v. Savinon-Acosta, 232 F.3d 265, 268 (1st Cir. 2000).
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Although we noted in Savinon-Acosta that "[t]he better
practice" would be for the sentencing judge to question the
defendant about the type, timing, quantity, purpose, and
consequences of any medication, the "critical question" remains
whether that medication has impaired the defendant's ability to
voluntarily enter a plea. Id. Toward that end, we explained that,
while expert testimony may be necessary in some circumstances to
assess the effects of particular medication, "practical judgments
can usually be made." Id.
Here, the sentencing judge admittedly did not ask Román
all of the specific questions that we described in Savinon-Acosta
as constituting the "better practice." But that was equally true
in Savinon-Acosta, itself. There, we noted that the district court
had ascertained neither the name nor quantity of the defendant's
medication. Id. at 269. While we cautioned that we "would have
been more comfortable" had the district court done so, we
nevertheless explained that the court "did determine the purpose of
the medicine" and had gone on to adequately assess the defendant's
competency. Id. As the colloquy reproduced above makes plain, the
sentencing judge here similarly established that Román's medication
was intended to treat anxiety and depression. In addition, the
record reflects that Román answered dozens of questions from the
judge. While those questions were of the "yes or no" variety,
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nothing in the record indicates that he had any trouble
understanding them.
Moreover, the portion of the colloquy that Román
emphasizes shows only half of the story. The record reflects that
the court also sought assurances that Román was competent from both
defense counsel and the prosecutor -- a practice we have explicitly
blessed. Id. Emphasizing that defense counsel had met with Román
on "ten or more occasions" over the prior two to three months, the
court asked him whether, in his opinion, Román was fully competent.
Counsel responded:
Yes, your Honor. He's fully competent. We
have met on numerous occasions. As the Court
knows, he has been very active in the process
of negotiating the plea agreement; and he
knows specifically what he wants and that he
basically obtained.
The court then asked the prosecutor whether she had any doubts
regarding Román's competency, to which she responded: "No, your
Honor, at this time the government has no doubts as to the
defendant's competency." Finally, the sentencing judge himself
remarked that "I had him [Román] in court four times, five times"
and "I have been able to have prolonged colloqu[ies] with him; he
does understand his case probably better than most detainees."
We are satisfied that counsel's assurances, coupled with
the court's own questioning about Román's medication, sufficed to
confirm that Román was competent to voluntarily enter a plea.
Despite Román's protestations to the contrary, "there is certainly
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no settled rule that a hearing cannot proceed unless precise names
and quantities of drugs have been identified." Savinon-Acosta, 232
F.3d at 269. Accordingly, we find no error, plain or otherwise.
We also decline to address Román's ineffective assistance
of counsel claim, without prejudice to his right to assert such a
claim in a collateral proceeding. It is well settled in this
circuit that we do not address on direct appeal fact-specific
ineffective assistance claims not raised below unless the
"attorney's ineffectiveness is manifestly apparent from the
record." United States v. Rivera-Gonzalez, 626 F.3d 639, 644 (1st
Cir. 2010) (internal quotation marks omitted). The record contains
no such indication here.
The judgment of conviction is affirmed and the claim of
ineffective assistance of counsel is dismissed without prejudice.
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