P. v. Fordjour





















Filed 1/15/13 P.
v. Fordjour CA6

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>NOT TO BE PUBLISHED IN
OFFICIAL REPORTS



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California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.







IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SIXTH APPELLATE DISTRICT




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THE PEOPLE, Plaintiff and Respondent, v. CHARLES ASARE FORDJOUR, Defendant and Appellant.

H037996 (Santa Clara County Super. Ct. No. 197498) ORDER MODIFYING OPINION AND DENYING REHEARING NO CHANGE IN JUGMENT

THE
COURT:

It
is ordered that the opinion filed herein on December 20, 2012, be modified as follows:

1.
On page 3, line 4, the sentence beginning
“Thirty days” and ending “from defendant” is deleted and the following sentence
is inserted along with footnote 2:



We received nothing from defendant within the 30 days
allotted for responding to our letter.
²



> ²After
we filed the original opinion, defendant filed a petition for rehearing. In that petition, defendant declares that he
never received this court’s letter, and contends that he does not wish to
abandon his appeal. He asks that we
consider the letter attached to the petition for rehearing and retain the
appeal. We have reviewed the letter
submitted by the defendant and find that it fails to raise any arguable issues
on appeal sufficient to warrant our retention of the appeal

There is no change in the judgment.

Appellant’s petition for rehearing
is denied.









Dated: ____________________________________

RUSHING,
P.J.









WE CONCUR:







_________________________________

PREMO, J.







_________________________________

ELIA, J.

Filed 12/20/12 P. v. Fordjour CA6 (unmodified version)

>NOT TO BE PUBLISHED IN
OFFICIAL REPORTS

>

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SIXTH APPELLATE DISTRICT




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THE PEOPLE, Plaintiff and Respondent, v. CHARLES ASARE FORDJOUR, Defendant and Appellant.

H037996 (Santa Clara County Super. Ct. No. 197498)

Defendant Charles Asare Fordjour appeals from an
order entered denying his motion to withdraw his guilty plea. The grounds for
the motion were that the prosecutor had breached the plea agreement, that the
judge who took his plea failed to comply with Penal Code section 1016.5 which
requires specific advisements about immigration consequences, that his speedy
trial rights were violated, and that the he was sentenced in violation of People
v. Arbuckle (1978) 22 Cal.3d 749. The trial court held a hearing to consider
the motion and in a written order denied it in its entirety. This timely appeal ensued.

This is the fourth appeal in “what has become an
epic post-conviction procedural saga.” (People
v. Fordjour (Apr.
25, 2011, H034568) [nonpub. opn.] [p.1]) (Fordjour
III).) On July 3, 1997, defendant was
charged with one count of obtaining money by false pretenses (Pen. Code, §
532). He pled guilty to that crime on September 22, 1997. On February
5, 1999, defendant filed a pro-per motion to withdraw
his guilty plea. In his motion he argued
that his attorney, provided ineffective assistance of counsel by failing to
adequately advise him about the immigration consequences of his plea. While the motion was pending, defendant filed
motions pursuant to People v. Marsden (1970)
2 Cal.3d 118, and Faretta v. California (1975)
422 U.S.
806. (Fordjour
III, supra, H034568 [p.
3].) Defendant’s counsel saw no merit in
the motion to withdraw the plea, so the court sentenced defendant to three years
in state prison without considering his Marsden,
Faretta motions or his pro-per motion to withdraw his
plea. (Fordjour
III, supra, H034568 [p.
4].)

Defendant appealed the judgment of
conviction. In case number H027293 this Court reversed the judgment and
instructed the superior court to rule on defendant’s Marsden
and
Faretta
motions. (Fordjour III, supra, H034568 [p. 4].)
On remand the trial court denied both motions. Defendant appealed a second time. In People
v. Fordjour (Oct. 3, 2007, H030466) [nonpub. opn.] this Court affirmed the
denial of the Marsden motion but
reversed the denial of the Faretta motion.
The superior court was ordered to grant the Faretta
motion
and allow defendant to present his motion to withdraw his plea. (Fordjour III, supra, H034568 [pp. 4-5].) On remand, the superior court granted
defendant’s motion to represent himself and scheduled a hearing on the motion
to withdraw his plea. (Id.
[pp. 6-7].) Before the motion could be
heard, defendant was transferred to the custody of the Immigration and Customs
Enforcement Agency (ICE). (Id. [p.
11].) At the behest of the prosecutor
the court reinstated the judgment without making any effort to secure
Fordjour’s presence so he could present his motion to withdraw his plea. (Id. [pp.
11-13].) Defendant appealed for a third
time. On April 25, 2011 this Court
reversed once again and ordered the superior court to attempt to secure
Fordjour’s presence so he could present his motion to withdraw his plea. (Id. [p. 34].)
Finally, after the third remand, the trial court considered and denied the
motion to withdraw the plea.

On
appeal, this court appointed counsel to represent defendant. Appointed counsel filed a Wendehref="#_ftn1" name="_ftnref1" title="">[1]
brief, stating the facts and procedural background, but raising no specific
issues. We notified defendant of his
right to file a supplemental brief on his own behalf. Thirty days have elapsed and we have received
nothing from defendant. Even though the
defendant filed the motion to withdraw his plea prior to entry of judgment, Wende
review is only available in a first appeal of right. This is defendant’s fourth appeal. Therefore, he is not entitled to the benefit
of Wende review, and we must dismiss the appeal. (People v. Serrano
(Nov. 28, 2012, H036373) ___ CalApp.4th ___ [2012 WL 5936024].)




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Disposition

The
appeal is dismissed as abandoned.











_____________________________________

rushing, P.J.













WE CONCUR:













_________________________________

PREMO, J.













_________________________________

ELIA, J.