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Disciplinary Counsel v. O'Neill9/7/2004
of this term of his probation, which was significant due to his Alford plea, he could not have been expected to file a direct appeal of his probation requirements. The trial court abused its discretion in revoking appellant's probation based upon that reasoning." (Exhibit 5, p.6) Littrell also argued that the trial court had failed to serve as a neutral and detached hearing officer in the revocation hearing but that assignment of error was held moot. (Exhibit 5, p.6-7)
17. In anticipation of the remand hearing, Littrell and Canepa prepared another agreed entry for Judge O'Neill amending the probation to remove the sex offender counseling requirement. Judge O'Neill did not accept the proffered entry and refused to meet with counsel. (Transcript Vol. 1 - 51-52, Vol. V -- 36, Exhibit 5, P.7, Relator's Exhibit B)
18. On November 7, 2000 Judge O'Neill held a remand hearing. Littrell testified that in this hearing Judge O'Neill had an air of prejudice and hostility. Birchler testified that the judge was not happy with him. (Transcript Vol. I -- 46-47, 120) Respondent began the hearing by stating, "I have read the decision. I respectfully disagree. The Court can assess those terms, especially since the underlying offense was a sex offense." (Exhibit 34, p.2-3)
19. Judge O'Neill then stated: "This is where it stands. It stands that either he is going to comply with the terms and conditions of his probation, or the State is going to withdraw -- file a motion to withdraw the guilty plea and the Court will set it for trial on the rape charge." Twice more in the hearing Judge O'Neill represented that the state would move to withdraw Birchler's plea if Birchler would not comply with terms and conditions of probation as originally ordered. (Exhibit 34, p. 4, 6) Canepa testified that the state had no intention nor any desire to vacate the plea and that she had never discussed that topic with Judge O'Neill before the hearing. (Transcript Vol. I -- 170-171) Canepa was asked:
Q: Have you ever heard of a judge saying to a prosecutor, "You will be making a motion to withdraw the defendant's guilty plea" other than this instance?
A: No. Judges don't usually tell the state what they should or should not do." (Transcript Vol. 1 -- 17)
20. In the hearing record, Judge O'Neill characterized Birchler's behavior as absolutely despicable and entering into an Alford plea to try to take advantage of the system. When Littrell objected that only the defendant has the right to ask for a withdrawal of the plea and asked Judge O'Neill to reimpose probation without the obligation for counseling as set forth by the Court of Appeals order, Judge O'Neill stated, "Well, Barry, you don't do a lot of criminal work down here and I don't know if you've ever done one before this case." (Exhibit 34 p.5)
21. Judge O'Neill concluded the hearing stating: "I'm going to set this back in the original terms and conditions of probation...If he fails to cooperate, he'll be set for revocation and at that time I'm sure the State will file its motion to withdraw the guilty plea. Of course you know what the Court's thinking was all along in the matter. We'll just set the matter for trial." (Exhibit 34 p. 7)
22. Birchler described his impression from that hearing: "And she just basically said that it was her courtroom, she was going to do what she wanted, and, you know, that's the way it was. And she told me if I didn't like it to appeal it. I was -- just kind of made me lose faith in the judicial system. It was just like, what did I go to appeals court for, what was I paying $17,000 for if I'm going to win an appeal, and then they're just going to deny it?" (Transcript V
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