Daily Star photo/AARON MUELLER Ivery Cross, an ex-Niles cop who pleaded guilty to sexually assaulting a male inmate and was sentenced to five to 15 years in prison, is hoping to now withdraw his plea based on ineffective assistance of counsel. He testified at an evidentiary hearing Thursday.

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Cross attempts to withdraw plea

Published 7:40pm Thursday, February 16, 2012

Ivery Cross claims he didn’t know that he could serve as many as 15 years in prison until he was admitted into the state facility.

He blames his former attorney, Andrew Burch, for not warning him. Cross, an ex-Niles City cop who pleaded guilty to sexually assaulting a male inmate at the Niles Law Enforcement Center last March, is hoping his claim of ineffective counsel will allow him to withdraw his plea and go to trial.

That was the subject of an evidentiary hearing Thursday at the South Berrien County Courthouse.

Cross, who was encouraged by Burch to take a plea deal that dismissed a first- degree criminal sexual conduct charge, was sentenced to five to 15 years in prison last May. He claims he took the plea based on Burch’s bad legal advice.

Cross took the stand and accused Burch of inaccurately telling him that if he took the plea deal, he would be eligible for Special Alternative Incarceration, also known as boot camp, which would allow him to get out of prison after a year. Cross said Burch also advised him that he may qualify for a sex offender treatment program.

Cross’ mother, father and sister all testified that Burch told them Cross would be eligible for boot camp, but their recollections of other matters about the case didn’t match.

When Burch took the stand, he denied telling anyone that Cross would qualify for boot camp or any alternative programming.

“I wouldn’t make that mistake,” Burch said. “You’ve got to be kidding me.”

Cross also claimed Burch told him that if he didn’t take the deal and was found guilty, he would be guaranteed a prison term.

“That was the biggest factor,” Cross said about his decision to take the plea.

Burch again denied that accusation, arguing he told Cross that he could face about 25 years, his estimate based on his knowledge of Michigan’s sentencing guidelines.

Cross also said Burch didn’t fully go over the facts of the case with him before advising him to take the plea.

Burch said he was “handicapped” in discussions about the case with Cross and his family because Cross didn’t want them to learn about his taped confession. Burch also claimed he recommended to take the plea deal partly because of one particularly damaging statement made by Cross on the tape.

In the tape, Cross denies the accusations until he takes a deep breath and states, “I have to quit lying.”

Because of that, Burch said Cross had a “pretty weak case.”

During cross examination of Cross, Berrien County Prosecutor Steve Pierangeli questioned why a former police officer wouldn’t take issue with the 15-year maximum and no mention of boot camp at the time he made his plea or at his sentencing.

Cross said he thought the 15 years was just for “people who were in a whole bunch of trouble before with a bad record.” He said he didn’t know that he could actually serve that much time until classification at prison. He also said he learned  he wouldn’t be eligible for boot camp at that time.

Burch said he fully explained all of that to Cross before he accepted the plea bargain.

“There’s no question he understood it,” Burch said.

Judge Scott Schofield said he’ll render a decision whether Cross can withdraw his plea or not after April 23, the deadline for counsel to file briefs.

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