The court of appeals recently addressed an issue that has divided courts elsewhere: whether defense counsel may present an insanity defense without the defendant’s consent. The court ruled that defense counsel may not do so, stating that “because the decision of whether to plead not guilty by reason of insanity is part of the decision of what plea to enter, the right to make that decision is a substantial right belonging to the defendant.” Continue reading
Tag Archives: ineffective assistance of counsel
In State v. Harbison, 315 N.C. 175 (1985), the North Carolina Supreme Court held that when defense counsel admits the defendant’s guilt to the jury without the defendant’s consent per se ineffective assistance of counsel occurs. The Harbison Court reasoned that when counsel admits guilt without consent, it is essentially the same as entering a guilty plea on the defendant’s behalf without the defendant’s consent. It concluded: “ineffective assistance of counsel, per se in violation of the Sixth Amendment, has been established in every criminal case in which the defendant’s counsel admits the defendant’s guilt to the jury without the defendant’s consent.” Id. at 180. Continue reading →
On Friday, the Fourth Circuit, deciding “an issue of first impression,” ruled that a new trial is required when a defense lawyer sleeps through a substantial portion of a trial. The opinion in United States v. Ragin is available here. This post summarizes and discusses the case. Continue reading →
In State v. Harbison, 315 N.C. 175 (1985), the North Carolina Supreme Court held that when defense counsel admits the defendant’s guilt to the jury without the defendant’s consent per se ineffective assistance of counsel occurs. The Harbison Court reasoned that when counsel admits guilt without consent, it is essentially the same as entering a guilty plea on the defendant’s behalf without the defendant’s consent. It concluded: “ineffective assistance of counsel, per se in violation of the Sixth Amendment, has been established in every criminal case in which the defendant’s counsel admits the defendant’s guilt to the jury without the defendant’s consent.” Id. at 180.
The U.S. Supreme Court recently decided Chaidez v. United States, 568 U.S. __ (Feb. 20, 2013), holding that Padilla v. Kentucky, 559 U. S. ___ (2010), isn’t retroactive. Padilla held that criminal defense attorneys must inform non-citizen clients of the risks of deportation arising from guilty pleas. As I noted in a post here, Padilla generated a lot of post-conviction litigation in North Carolina and across the nation. The primary issue in those cases is whether defendants whose convictions became final prior to Padilla could benefit from the Padilla rule. Put another way, the question is whether Padilla applies retroactively.
But back to the recent decision. Chaidez, originally from Mexico, became a lawful permanent resident of the United States in 1977. About 20 years later she pleaded guilty to two counts of federal mail fraud. That conviction became final in 2004. Under federal immigration law these offenses are “aggravated felonies,” subjecting Chaidez to mandatory removal from the country. In 2009, federal authorizes initiated removal proceedings against Chaidez. She then filed a motion to overturn the federal convictions, arguing that her lawyer never told her that she’d be subject to mandatory removal and that this failure constituted ineffective assistance of counsel. While her petition was pending, the U.S. Supreme Court handed down its Padilla decision, agreeing that a failure to inform a non-citizen of mandatory deportation was ineffective assistance of counsel. However, Chaidez’s fraud convictions had become final five years earlier. Thus, Chaidez could only benefit from the decision if it applied retroactively to her convictions. The trial court held that Padilla did not announce a new rule and therefore should apply to Chaidez’s case. It went on to find that her counsel had performed deficiently under Padilla and that she suffered prejudice. As a result it vacated her convictions. The Seventh Circuit reversed. When the case came before the U.S. Supreme Court the only issue was whether Padilla announced a new rule.
The high Court found that Padilla announced a new rule that did not apply retroactively to Chaidez’s case. Chaidez didn’t argue that Padilla fell into one of the two narrow exceptions to the non-retroactivity rule. The first exception to the non-retroactivity rule applies to new substantive—as opposed to procedural—rules. The second applies to watershed rules of criminal procedure. Because the issue of whether Padilla fell into one of those exceptions wasn’t raised, the Court didn’t address it. But defense lawyers shouldn’t hold out much hope on that issue. I can pretty much argue anything (ask my husband of 20 years!) but even I can’t think of a way to frame Padilla as a substantive rule. And as for the watershed rule of criminal procedure exception, don’t place any bets there—the U.S. Supreme Court has never held any new rule to be a watershed rule of criminal procedure. And it has opined that given how developed the criminal law is, such rules are unlikely to emerge.
In any event, our court of appeals gets a gold star. As I discussed here, about a year ago the N.C. Court of Appeals weighed in, concluding that Padilla was a new rule that did not apply retroactively. In Chaidez the U.S. Supreme Court agreed.
Can a defendant who chooses to represent himself subsequently argue that he received ineffective assistance of “counsel”? No, as illustrated by the recent case of State v. Brunson, __ N.C. App. __ (2012). The defendant in Brunson elected to represent himself. He was convicted of sexually abusing his stepdaughter. He appealed, arguing in part that he received ineffective assistance of counsel. The court of appeals rejected this argument, citing State v. Petrick, 186 N.C. App. 597 (2007), for the proposition that “a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of effective assistance of counsel.” The rule expressed in Brunson and Petrick is universal. Faretta v. California, 422 U.S. 806, 834 n.46 (1975) (“[A] defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of ‘effective assistance of counsel.”’) 40 Geo. L.J. Ann. Rev. Crim. Proc. 515 n. 1601 (2011) (collecting cases from multiple jurisdictions, all of which support the statement that “a pro se defendant may not claim his or her own ineffectiveness as a ground for appeal”).
The basic rationale for this rule is twofold. First, courts reason that a defendant who has made his bed (by electing to represent himself and thereby retaining direct control over his defense) must lie in it (by accepting the consequences of his decision). Second, courts worry that allowing pro se defendants to claim ineffective assistance would give defendants an incentive to sabotage their own trials. As an aside, the first rationale might extend to a defendant who retained counsel of his choice, but the second doesn’t, and the Supreme Court has ruled that ineffective assistance claims are cognizable against retained as well as appointed lawyers. Cuyler v. Sullivan, 446 U.S. 335 (1980) (holding that there is “no basis for drawing a distinction between retained and appointed counsel” with respect to claims of ineffective assistance of counsel).
The School of Government recently launched the Collateral Consequences Assessment Tool (C-CAT). But, what is a collateral consequence assessment tool? For that matter, what is a collateral consequence?
The Collateral Consequences Assessment Tool, or C-CAT, is a web-based tool that centralizes the collateral consequences imposed under North Carolina law for a criminal conviction. A collateral consequence is a civil penalty that deprives a person of certain rights or privileges and is imposed as the result of a criminal proceeding.
- The direct consequences of a conviction—the criminal sentence—may include imprisonment, probation, orders of restitution, and fines.
- The collateral consequences of a conviction may include bars to employment and professional licensure, voting disenfranchisement, and the loss of public benefits, which affect many areas of a person’s life.
The lack of a central repository of collateral consequences in North Carolina, which were scattered throughout the NC general statutes, made it difficult—if not impossible—for anyone to master the entire body of collateral consequences law. This one-stop resource will benefit all those who need to understand, or are affected by, collateral consequences. C-CAT was created to help attorneys, policymakers, service providers, and affected individuals identify, assess, and compile the collateral consequences that may be triggered by a criminal conviction.
C-CAT’s includes collateral consequences that affect civic, domestic, and education rights; employment and professional licensure; firearm, housing, and property rights; and public benefits. By organizing collateral consequences by categories of activities, privileges, and rights, C-CAT makes this wide-ranging area of law more accessible to everyone. Now, you can search collateral consequences by:
- Criminal characteristic (What if my client was convicted of a drug offense?)
- Collateral consequence (Will my client lose her housing subsidy?)
- Keyword (Will the conviction affect my client’s “financial aid for school”?)
C-CAT was made possible by a grant through the Z. Smith Reynolds Foundation and a network of generous sponsors. Thanks to their generosity and commitment, C-CAT is offered at no charge to users through December 31, 2012. Visit http://ccat.sog.unc.edu to sign up for access to C-CAT.
To request additional information about C-CAT, you can email email@example.com.
The Supreme Court decided two cases last week about ineffective assistance of counsel during plea bargaining. The cases, Lafler v. Cooper and Missouri v. Frye, made a big splash in the media. Locally, they were featured on front page of the News and Observer. Nationally, they’ve been the talk of the New York Times and have been relentlessly discussed in the blogosphere. They’ve also caused some alarm among North Carolina prosecutors and judges, some of whom fear that any defendant who turns down a plea offer, goes to trial, and gets a sentence more severe than what was offered will now have a meritorious claim of ineffective assistance.
The facts of Lafler are as follows. The defendant “pointed a gun toward [the vicitim’s] head and fired.” He missed, the victim fled, and the defendant chased after her, wounding her “in her buttock, hip, and abdomen.” He was charged with assault with intent to murder and three other offenses. Prior to trial, the prosecutor offered to dismiss two of the charges and to agree to a sentence of 51 to 85 months on the other two if the defendant would plead guilty. “In a communication with the court [the defendant] admitted guilt and expressed a willingness to accept the offer,” but he later rejected the offer, apparently because his lawyer advised him that the prosecution could not establish an intent to murder due to the fact that the victim had been shot below the waist. The defendant went to trial, was convicted on all counts, and was sentenced to 185 to 360 months.
The defendant then sought post-conviction relief, arguing that he had received ineffective assistance of counsel when his attorney had advised him to reject the plea offer. He was unsuccessful in Michigan’s state courts, but a federal district court ruled in his favor and ordered specific performance of the original plea offer. The Sixth Circuit affirmed, and the Supreme Court granted review.
Justice Kennedy, writing for a five-Justice majority, began by stating that the Sixth Amendment right to the effective assistance of counsel extends to pretrial stages, including plea bargaining. Referring to the two-pronged standard for ineffective assistance claims established by Strickland v. Washington, 466 U.S. 668 (1984), the majority noted that the parties agreed that defense counsel had performed deficiently in advising the defendant that he could not be convicted of the assault charge. The issue, then, was how to apply the prejudice prong of Strickland to cases in which the alleged harm was proceeding to what, by all accounts, was a fair and impartial trial.
The Court held that a defendant may establish prejudice by showing that but for counsel’s deficient performance, (1) the defendant would have accepted a plea offer, (2) the court would have approved it, and (3) it would have resulted in a less severe sentence than that actually imposed after trial. It noted that most of the federal circuits have already adopted this test, and rejected the state’s suggestion that so long as the defendant received a fair trial, he had received all that he was entitled to under the Sixth Amendment:
In the end, [the state’s] arguments amount to one general contention: A fair trial wipes clean any deficient performance by defense counsel during plea bargaining. That position ignores the reality that criminal justice today is for the most part a system of pleas, not a system of trials. Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. . . . [T]he right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining plays in securing convictions and determining sentences.
As to the proper remedy, the Court held that it depends on the nature of the offered plea:
- If the plea bargain would have involved a guilty plea to the same crime or crimes of which the defendant was ultimately convicted at trial, so that “the sole advantage [the] defendant would have received under the plea is a lesser sentence,” then the defendant may be resentenced, and the court “may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.”
- If the plea bargain would have involved a guilty plea to crimes less serious than those of which the defendant was ultimately convicted at trial, resentencing alone may be insufficient. Instead, a court may “require the prosecution to reoffer the plea proposal. Once this has occurred, the judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.”
The Court said very little about what factors a court should weigh when exercising the “discretion” referenced in both remedies, suggesting only that the defendant’s previously expressed willingness to accept responsibility, and any facts learned about the crime or crimes after the original plea offer was made, may be considered. As to the suggestion that its holding might unleash a flood of ineffective assistance claims, the Court noted that claims of this type have been recognized in the lower courts for over 30 years, and the predicted tsunami has yet to appear.
Justice Scalia wrote the principal dissent. He argued that when a defendant receives a fair trial, he has received what he is guaranteed by the Constitution. Since a defendant has no right to a plea bargain, he has suffered no cognizable harm when he receives what he is entitled to rather than what might be described as essentially a windfall offer from the prosecution. Justice Scalia, and Justice Alito in a separate dissent, also criticized the remedies established by the majority opinion, describing that portion of the majority opinion as “incoheren[t]” and “opaque.”
Frye is a companion case to Lafler. It concerns a defendant whose attorney failed to communicate a favorable plea offer to him. The defendant subsequently pled guilty on less favorable terms. He sought, and obtained, post-conviction relief based on ineffective assistance of counsel. The case reached the Supreme Court, which held that defense attorneys have a duty to communicate plea offers to their clients, and that the attorney in this case violated that principle. The Court also concluded that the defendant would likely have accepted the offer, since he later accepted a less advantageous one. However, the Court remanded the case to the Missouri state courts for further consideration on the issue of prejudice. Because the defendant had been rearrested and charged with a new crime after the offer was made, the Court thought that the prosecution might have rescinded the offer if the defendant had tried to accept it, or that the court might have rejected it. In the course of discussing the case, the Court suggested that the state may guard against later ineffective assistance claims by making plea offers formally and in writing; by tracking the processing of and response to such offers; and by noting any plea negotiations on the record before a case reaches disposition.
A few thoughts about these cases:
- The media frenzy notwithstanding, I don’t think that they’re earth-shattering. They won’t be relevant at all except in cases in which there was a trial, in which the trial resulted in a conviction, in which a plea offer was made before trial, and in which the conviction was accompanied by a sentence more severe than that which would have accompanied the plea offer. Already, we’re talking about a small fraction of all cases. Then, the defendant would need to show that counsel performed deficiently. Lafler and Frye involved very unusual facts in that regard, with counsel either failing to communicate a plea offer at all or providing legally inaccurate advice about a central issue in the case. Of course, a defendant can spuriously claim that counsel performed deficiently, but most defense attorneys already document their files in a way that will make such bogus claims very hard to win. For example, many attorneys convey plea offers to their clients in writing, or at least make written notes concerning any offer and the defendant’s response. Attorneys who have not previously done so might be well-advised to begin.
- Prosecutors and judges can take steps to try to foreclose illegitimate claims. Some of these steps were suggested by the Court in Frye. For example, prosecutors can make offers in writing and can ask for a written response. Or prosecutors can make plea offers in open court at an administrative setting, as is apparently done in at least one North Carolina district. Or they can put the status of plea negotiations on the record, in the presence of the defendant and defense counsel, before the disposition of each case. Judges may choose to engage in a brief colloquy with the defendant verifying the prosecutor’s version of events. None of these techniques will completely eliminate the possibility of a fraudulent Lafler claim, and some of them raise other issues. (For example, when a judge is informed about plea offers rejected by the defendant, the judge must be very careful at sentencing to avoid any suggestion that the judge is punishing the defendant for going to trial.)
- The Court’s remedy discussion is strange. On this point, I agree with Justices Scalia and Alito. Remember, the remedy issue doesn’t arise unless a court has already concluded that a Sixth Amendment violation has taken place, because a defendant was offered a favorable plea that he would have taken but didn’t because of counsel’s deficient performance, and the defendant suffered a more severe sentence as a result. Under such circumstances, why would a court have the discretion to deny relief? The Court seems to suggest that, in some cases, there is a Sixth Amendment right without a remedy. I suspect that in most cases, judges will and should exercise their discretion to put the defendant in the position he would have been in but for counsel’s ineffective assistance. In other words, I suspect that it will be uncommon for judges to find a Sixth Amendment violation but decline to repair it.
Sorry for the long post. As always, I welcome your thoughts on all these issues.
In a post here, a former colleague [editor’s note: the post has my picture on it but as the byline notes, it was written by Sejal Zota] wrote about Padilla v. Kentucky, 130 S. Ct. 1473 (Mar. 31, 2010), a U.S. Supreme Court decision dealing with ineffective assistance of counsel in connection with advice regarding the immigration consequences of a plea. In Padilla, after pleading guilty to a charge of transporting a large amount of marijuana, the defendant, a lawful permanent resident of the United States for more than forty years, faced deportation. He challenged his plea, arguing that his counsel rendered ineffective assistance by failing to inform him that the plea would result in mandatory deportation and by incorrectly informing him that he did not have to worry about his immigration status because he had been in the country for a long time. The Court concluded that when, as in the present case, “the deportation consequence [of a plea] is truly clear,” counsel must correctly inform the defendant of this consequence. However, the Court continued, where deportation consequences of a plea are “unclear or uncertain [t]he duty of the private practitioner . . . is more limited.” It continued: “When the law is not succinct and straightforward . . . , a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” The Court declined to rule whether the defendant was prejudiced by his lawyer’s deficient conduct.
I followed up on that post with one here dealing with the question of whether Padilla was retroactive to convictions that became final before it was decided. In that post, I noted that at the time there were no N.C. decisions on point and that courts in other jurisdictions were split on the issue. We now have N.C. law on point. In State v. Alshaif, the N.C. Court of Appeals recently held that Padilla does not apply retroactively. In Alshaif, the defendant, a lawful permanent resident of the United States, pleaded guilty to assault with a deadly weapon inflicting serious injury (AWDWISI) and was sentenced accordingly. This occurred in February of 2007, more than three years before Padilla was decided by the U.S. Supreme Court. In October of 2010, the defendant filed a motion for appropriate relief (MAR) arguing that his guilty plea was not knowing, voluntary, and intelligent because he received ineffective assistance by trial counsel, Mr. Branch. Apparently, the defendant met with Branch several times and informed Branch of his lawful permanent resident status. According to the defendant, Branch never advised the defendant of the immigration consequences of a conviction for AWDWISI. Instead, Branch advised the defendant to plead guilty to the offense. After the defendant completed his sentence, he was arrested by U.S. Department of Homeland Security agents and was served with a notice to appear at removal proceedings. As it turned out, the conviction for AWDWISI made the defendant deportable and ineligible to re-seek permanent residency. In his MAR, the defendant asserted that Branch was ineffective under Padilla. The trial court denied the MAR and the court of appeals granted certiorari.
When determining whether a federal rule applies retroactively, the relevant analysis is the Teague test. Applying that test, the court of appeals first determined that although Padilla was grounded in existing law, it announced a new rule. It reasoned: “Prior to Padilla, neither our state courts nor federal courts had interpreted [the law] as requiring counsel to advise a client of the immigration consequences of a guilty plea.” The court then went on to quickly determine that the rule was procedural and not substantive. Finally, it concluded that the new rule did not fall into the narrow non-retroactivity exception for watershed rules of criminal procedure. This latter conclusion is hardly surprising given that the U.S. Supreme Court has never found that exception to apply.
So what does this mean? It means that for cases that had not been initiated or were not final when Padilla was decided by the U.S. Supreme Court the holding of Padilla applies. But for cases that became final before the Padilla decision was issued—like Alshaif’s—the new rule does not apply.
Criminal defendants, especially those sentenced to long prison terms, sometimes try to attack their convictions and sentences by claiming that their trial lawyers provided ineffective assistance of counsel. The state sometimes seeks trial lawyers’ help in answering these claims, and trial attorneys may want to help in order to avoid findings of ineffectiveness. At the same time, trial counsel may have ongoing duties of loyalty and confidentiality that make it inappropriate simply to open their files to the state. The State Bar just issued a proposed ethics opinion — Proposed 2011 FEO 16 — concerning how to balance these competing considerations. It’s available in full here. The Bar’s summary of the opinion is as follows:
Proposed opinion rules that a criminal defense lawyer accused of ineffective assistance of counsel by a former client may share confidential client information with prosecutors to help establish a defense to the claim so long as the lawyer reasonably believes a response is necessary and the response is narrowly tailored to respond to the allegations.
In other words, the Bar may soon rule that a defense lawyer may assist the state in responding to allegations of ineffective assistance of counsel, perhaps by discussing the case with a prosecutor or by preparing an affidavit summarizing the attorney’s view of the relevant facts. The Bar views such assistance as permitted under Rule 1.6(b)(6), which allows a lawyer to reveal otherwise confidential information as necessary to respond to allegations concerning the lawyer’s representation of a client. The proposed opinion does emphasize that “lawyers who choose to respond to claims of ineffective assistance of counsel . . . [must] respond in a manner that is narrowly tailored to address the specific facts underlying the specific claim. Simply put, the pursuit of an ineffective assistance of counsel claim by a former client does not give the lawyer carte blanche to disclose all information contained in a former client’s file.”
The proposed opinion expressly declines to follow an opinion on the same subject recently adopted by the American Bar Association. ABA Formal Opinion 10-456, available here, asserts that “it is highly unusual for a trial lawyer accused of providing ineffective representation to assist the prosecution in advance of testifying” at a hearing on collateral review. That’s an empirical question, and my experience is contrary to the ABA’s conclusion, but it’s probably neither here nor there as to the ethics issue. On the ethics issue, the ABA points out that while a claim of ineffective assistance waives the attorney-client privilege and work product protections as to information needed to respond to the claim, a defendant and his prior attorney may disagree about the scope of the implied waiver. Therefore, the ABA reasons, the attorney ought not disclose anything outside a judicial proceeding, during which the defendant will have an opportunity to object to disclosure. Nor is extra-judicial disclosure normally “necessary” to respond to the defendant’s claim, because many claims of ineffective assistance are dismissed on procedural grounds, while the remainder, in the ABA’s view, may be answered adequately in court. Thus, the ABA concludes that “it is highly unlikely that a disclosure in response to a prosecution request, prior to a court-supervised response by way of testimony or otherwise, will be justifiable.”
I welcome any thoughts about this issue generally and about the Bar’s proposed opinion specifically. If I receive substantive comments, either on the blog or by email, I’ll forward them to the Bar.