Merkley's request to withdraw guilty plea denied

A Brownstown man who pleaded guilty in October to a felony sex crime was unsuccessful in his bid to withdraw that plea.
At the conclusion of a hearing Friday, Fayette County Resident Circuit Judge S. Gene Schwarm denied Lloyd W. Merkley’s request for a new trial on a charge of predatory criminal sexual assault of a child.
Merkley, 62, agreed to accept a 10-year prison sentence for the Class X felony in signing a plea agreement Oct. 30.
But shortly after entering prison, Merkley filed a motion stating that he wanted to withdraw his plea. In that motion, he claimed that family members threatened to harm him if he did not accept the plea bargain.
He repeated that claim while testifying during Friday’s hearing, and told Schwarm that he did not commit the sex crime.
Merkley was questioned by his court-appointed attorney, conflict public defender Jeff DeLong.
Merkley was previously represented by Fayette County Public Defender Ed Potter. Merkley claimed in his motion to withdraw his plea that he had relayed threats from family members to Potter, but Potter told him it was too late change his mind on the plea bargain.
On the witness stand on Friday, Merkley testified that he has had mental health issues since childhood, but did not begin receiving treatment for them until after he returned from Vietnam.
He testified that on the day his jury trial was to get under way, his son threatened to “shoot both of us (Merkley and his wife) right then … I took that as a threat.”
DeLong asked, “Were you afraid he was going to harm you?”
Merkley said, “Yes, and I still am. I’m afraid that she (his wife) has got to be on the list, too.”
He also testified that his wife had threatened him.
DeLong also asked Merkley about his earlier statements about killing himself.
Merkley confirmed that he had such thoughts, “Because I want to end this whole thing.”
He had talked about starving himself to death.
Under cross-examination by then-Assistant State’s Attorney Matt Chancey, Merkley said that Potter was with him when family members allegedly threatened him.
Chancey asked if Potter told him after that alleged incident that he could still plead not guilty and go on with the trial.
“At that point,” Merkley said, “I was so far out of it, I don’t know what was said.”
After he finished testifying, Merkley started to address Schwarm while stepping down from the witness stand.
Schwarm stopped him, saying, “There is no question pending.” He told Merkley that if he had anything to say, it had to be relayed through his attorney.
Potter also testified at the hearing, saying that Merkley had “expressed some concern” about alleged threats. When DeLong asked how often he did so, Potter said, “Very little.”
On the alleged threat from Merkley’s wife, Potter said that she “waved her finger at him … and said, ‘You’re not going to put his little girl through this. You will take the plea.’”
In arguing for Merkley’s motion, DeLong said that his client contends that he did not commit the offense, and that he learned about Merkley by going through court transcripts.
“It’s clear that Mr. Merkley has mental health issues and intended to kill himself immediately after taking this plea.”
Chancey argued that “supposed threats” were made in June, “if not earlier,” and said that Merkley confirmed on the stand that he had not had direct communications with his son.
“As to the conversation with his wife, I wouldn’t characterize that as a threat,” Chancey said.
He said that he remembered Schwarm asking Merkley whether anyone had threatened him into entering a plea, and Merkley said that no one had.
Chancey also said, “The mere fact that the defendant has mental health issues does not equate to a bona fide doubt of fitness (to stand trial).
“It is clear also from the defendant’s conduct in most of his court hearings that he is fit. He had the wherewithal to file a motion to withdraw his guilty plea and to request a transcript,” Chancey said.
“To know that he had to do that, and that he had a time limit also shows his fitness,” he said.
About Merkley’s claims that he would starve himself to death, and that he would be dead by Christmas, Chancey said, “He clearly has not been on any hunger strike. It is an attempt at manipulation by the defendant.”
DeLong argued, “His (Merkley’s) actual perception of a threat is different from what Mr. Chancey’s perception level is.
“Clearly, he takes these threats to a different level,” DeLong said.
In making his ruling, Schwarm said that a pretrial judge ruled that Merkley was fit to stand trial. The judge “made findings that he could actively participate (in his defense),” Schwarm said.
During jury selection, Schwarm said, “I had the ability to observe the defendant. I observed him actively participating in his defense.
“At different times, he has things he wants to say,” Schwarm said, stating that when he admonished Merkely from speaking, the defendant “quietly and politely consented.”
When Merkley pleaded guilty, “I specifically asked him if anyone had forced him to plead guilty, and he said, ‘No,’” Schwarm said.
“I asked if he knew what he was doing, and he said, ‘I know what I’m doing, your honor.’
“I asked two or three times if he knew what he was doing,” Schwarm said, noting that each time Merkley confirmed that he did. “He said, ‘Voluntarily, yes,’ at one point.”
The judge said that after Merkley made the statement about starving himself to death, “I took a break on the bench to give him time to reflect on that proceeding, probably five minutes.
“There was a period of time where I let there be silence,” Schwarm said.
At the end of that period, he said, he again asked Merkley if he knew what he was doing, and, again, Merkley said that he did.
In making his ruling, Schwarm said, “I believe that on that day, he knew what he was doing, he understood what he was doing and he did it voluntarily.”
Schwarm read Merkley his appeal rights, and Merkley said that he intends to file an appeal.
At the conclusion of the hearing, Merkley attempted to address his son, and continued to do so as jailers took him out of the courtroom.