ADVISING CLIENT

 

FAILURE TO INFORM DEFENDANT OR STATE OF PLEA OFFER

 

U.S. Court of Appeals Cases

 

2006: Satterlee v. Wolfenbarger
453 F.3d 362 (6th Cir. 2006) (affirming 374 F. Supp. 2d 562 (E.D. Mich. 2005)).

Counsel ineffective in drug conspiracy case for failing to inform the defendant of the prosecution's plea offer on the day of trial to allow the defendant to plead guilty in exchange for a sentence of six to 20 years so the defendant proceeded to trial and received a sentence of 20 to 30 years. The defendant was facing up to life imprisonment on the indicted charges and from the beginning cooperated with police in order to obtain release on bond. Prior to counsel's retainer, the government had offered a deal to 12 to 20 years. The defendant rejected this offer but continued cooperating with the police. Ultimately, prior to trial, the prosecutor offered a deal of 7 to 20 years, but this was never conveyed to the defendant. On the day of trial, the prosecutor offered 6 to 20, but again this was not conveyed to the defendant. In finding counsel's conduct deficient the court found the defendant's testimony to be more credible than counsel's because it was supported by the defendant's mother and the prosecutor. The district court granted a conditional writ ordering reinstatement of the plea offer. When the state failed to reinstate the plea offer, the district court ordered immediate release and expungement of the record of conviction. The Sixth Circuit affirmed.

 

U.S. District Court Cases

 

2005: Satterlee v. Wolfenbarger
374 F. Supp. 2d 562 (E.D. Mich. 2005)

Counsel ineffective in drug conspiracy case for failing to inform the defendant of the prosecution’s plea offer on the day of trial to allow the defendant to plead guilty in exchange for a sentence of six to 20 years so the defendant proceeded to trial and received a sentence of 20 to 30 years. The defendant was facing up to life imprisonment on the indicted charges and from the beginning cooperated with police in order to obtain release on bond. Prior to counsel’s retainer, the government had offered a deal to 12 to 20 years. The defendant rejected this offer as being too high but continued cooperating with the police. Counsel was retained for $25,000 with an additional $25,000 if the case proceeded to trial. After counsel was retained, the prosecution offered an 8 year minimum, which was also rejected by the defendant as being too high. Ultimately, prior to trial, the prosecutor offered a deal of 7 to 20 years, but this was never conveyed to the defendant. On the day of trial, the prosecutor offered 6 to 20, but again this was not conveyed to the defendant. The court held that “[a] defense attorney’s failure to notify his client of a prosecutor’s plea bargain offer constitutes defective performance.” In finding counsel’s conduct deficient the court found the defendant’s testimony to be more credible by counsel’s because it was supported by the defendant’s mother and the prosecutor. The court was also troubled that counsel claimed difficulty remembering much of the details of the case even though he received a fee in excess of $50,000. “The fee arrangement created a disincentive for [counsel] to seek a plea agreement, further calling into question both his credibility.” The court also found a reasonable probability that the defendant would have accepted the plea offer. Although this issue had not been raised on direct appeal, the court found that any procedural default was excused because the same counsel represented the defendant on appeal. The court reinstated the plea offer.

2004: Shiwlochan v. Portuondo
345 F. Supp. 2d 242 (E.D.N.Y. 2004)

Counsel was ineffective in failing to advise the defendant of the court’s plea offer in second degree murder case. Although the prosecution never made a plea offer, the trial court offered to impose a sentence of 15 years to life–the minimum sentence for second degree murder–if the defendant plead guilty to the charge of second degree murder and the other offenses included in the indictment. [It is common practice in New York for trial courts to engage in plea offers independent of the prosecution.] Following conviction, the defendant was sentenced to 41 2/3 years to life, which was the maximum possible sentence. Counsel did not inform the defendant of the offer because counsel: (1) did not think the defendant would accept the offer since he maintained innocence; (2) believed that there was a viable defense of misidentification; and (3) did not believe that the defendant would receive a “severe sentence” if convicted. Counsel’s conduct was deficient and the state court’s finding to the contrary was, under the AEDPA standard, an unreasonable determination of the facts in light of the evidence presented. The state court’s finding that counsel did convey the offer was contradicted by counsel’s affidavit. Moreover, even though counsel knew the maximum sentence, he never informed the defendant of the actual maximum sentence or that he could be sentenced consecutively because counsel did not believe the defendant would receive a “severe sentence” if convicted. Instead, he left the defendant with the impression that the maximum sentence he faced was 25 years to life. The state court’s finding that counsel’s conduct was reasonable was an unreasonable application of Strickland under the AEDPA because

By underestimating petitioner’s exposure, [counsel] breached his duty ‘to advise his client fully on whether a particular plea to a charge appears desirable. . . . Merely advising petitioner as to possible sentences rather than advising him on his full sentencing exposure is insufficient.

Despite the defendant’s assertion of innocence, the court found a reasonable probability that the defendant would have accepted the plea offer for 15 years had he known of the court’s offer. The court thus ordered resentencing according to the plea offer.

1993: United States v. Busse
814 F. Supp. 760 (E.D. Wis. 1993)

Trial counsel ineffective during plea negotiations for failing to advise the defendant concerning the sentencing guidelines and failing to provide the defendant with a copy of the plea agreement offered by the prosecution which if it had been accepted would have given the defendant a lower sentence than what he got.

 

State Cases

 

2006: Jiminez v. State, 
144 P.3d 903 (Okla. App. 2006).

Counsel ineffective in second-degree burglary and other offenses case for failing to inform the defendant of a plea offer until the day set for trial. Prejudice found because the plea offer was not open when defense counsel did inform the defendant about it and the defendant probably would have accepted the offer and received a sentence of five years in prison rather than the 12-year sentence assessed by jury. Sentence modified to five years.

State ex rel. Thomas v. Rayes, 
851 141 P.3d 806 (Ariz. App. 2006).

Counsel ineffective in armed robbery and theft case for failing to communicate the state's plea offer to the defendant. The state's written offer with a deadline was mailed to counsel but filed by her assistant before counsel saw it. By the time counsel looked in her file on the day of a trial management conference, the offer had expired and the state refused to reinstate it. Counsel's conduct was deficient because, even though counsel did not see the offer, counsel failed to follow-up with the prosecutor for a period of 90 days concerning plea negotiations when the prosecutor frequently imposed plea offer deadlines. Prejudice found because the defendant had adequately demonstrated that he would have accepted the plea offer if he had known about it. Because the court held that ordering the state to reinstate the offer violated separation of powers, however, the remedy was to direct the parties to return to the plea negotiation stage and to act in good faith.

Dew v. State, 
843 N.E.2d 556 (Ind. App. 2006)

Counsel ineffective in rape case for failing to inform the defendant of the state’s plea offer prior to his second trial. During the first trial, the defendant expressed an interest in pleading guilt but rejected the state’s offer of a cap of six years. The first trial ended in a hung jury. Counsel did not meet with the defendant prior to the second trial, did not inform the defendant that the state had given notice of eight additional witnesses, did not interview those witnesses, and did not inform the defendant of the state’s renewed plea offer for a cap of six years. The defendant was convicted on two charges and given concurrent twenty year terms. Citing the ABA Standards for Criminal Justice, the court held that counsel’s conduct was deficient because counsel has a duty to inform the defendant of proffered plea agreements. Prejudice found because, if he had been adequately advised, the defendant would have accepted the State’s plea offer.

2004: Sanders v. Commissioner of Correction, 
851 A.2d 313 (Conn. App. 2004)

Counsel ineffective in robbery and conspiracy case for failing to meaningfully advise the defendant of a plea offer from the state. The defendant rejected an initial plea offer by the state and the state made a second offer. Although counsel informed the defendant of the offer, counsel did not inform the defendant of the statements of the witnesses against him or advise him of the likely outcome if the case proceeded to trial. Although Strickland presumes counsel’s conduct to be reasonable,

Nowhere is it said, though, that such a presumption is irrebutable. As with any refutable presumption, the petitioner may rebut the presumption on adequate proof of sufficient facts indicating a less than competent performance by counsel. In determining whether the presumption should apply, . . . other acts of ineffective assistance in the same matter may be considered in making that determination. Prejudice found because the defendant would have accepted the second plea offer limiting his sentence if it had been meaningfully explained. Although the only evidence of this was the defendant’s testimony, this was sufficient because the court assessed the defendant’s demeanor and credibility.

2001: Turner v. State, 
49 S.W.3d 461 (Tex. Ct. App. 2001)

Counsel ineffective in murder case for failing to inform the defendant of the deadline attached to a plea offer. State had offered a sentence of 35 years in exchange for plea. Counsel communicated the plea offer but not the deadline and the deadline passed before the defendant notified counsel and counsel notified the state that offer would be accepted. State would not accept deal and defendant went to trial and received a life sentence. Remedy was to reverse and order reinstatement of plea offer.

2000: Atkins v. State, 
26 S.W.3d 580 (Tex. Ct. App. 2000)

Counsel ineffective in felony DWI case for failure to inform defendant of state's plea bargain offer of 12 years. Defendant had refused offer of fifteen years, but defense counsel never relayed offer of 12. At a pretrial hearing, when the state announced it had offered 12, the defendant said he would take it, but the state said it was no longer offering a plea bargain. Defendant prejudiced because he would have accepted plea bargain and would not have gone to trial where he was sentenced as habitual offender to 25 years.

Paz v. State, 
28 S.W.3d 674 (Tex. Ct. App. 2000)

Counsel ineffective in drug possession case for failing to inform the defendant of state's plea offer. Prejudice found where defendant would have accepted plea bargain offer, which would have resulted in sentence of 5 years probation and $2,900 fine, rather than 5 years and $5,000 fine imposed when defendant later pleaded guilty without plea bargain.

Ex parte Lemke, 
13 S.W.3d 791 (Tex. Crim. App. 2000)

Counsel ineffective for failing to advise drug possession defendant of two pleas by the state, first for 20 years, then for 16 years. Defendant plead guilty for 40 years. Prejudice found even though trial court not required to accept state's recommendation. Court reinstated the 20 year plea offer because that was the first offer made and defendant indicated he would have accepted it.

1999: Becton v. Hun, 
516 S.E.2d 762 (W. Va. 1999)

Counsel ineffective for failing to communicate plea offer to client indicted for one burglary and six aggravated robberies. State offered a recommendation of 10 years confinement, which was the statutory minimum sentence for aggravated robbery, in exchange for a plea to only one robbery. The deal was not communicated and defendant went to trial facing four armed robbery charges. Convicted of one and sentenced to 40 years. Court held that where defendant's evidence showed he was not told of the deal and trial counsel could not remember and had no evidence, the "benefit of the doubt," 516 S.E.2d at 767, went to the defendant that counsel's conduct was deficient. On prejudice, court said no prejudice on plea because the trial resulted in only one conviction. The court remanded for sentencing, however, noting that while the trial court was under no obligation to accept the state's offer, the fact that the state recommended minimum sentence of 10 years certainly could have resulted in a sentence less than 40 years.

1994: Harris v. State, 
875 S.W.2d 662 (Tenn. 1994)

Counsel ineffective in assault with intent to murder case for failing to discuss the state's five year plea offer with defendant who went to trial without knowledge of offer and got 35 years.

1993: Randle v. State, 
847 S.W.2d 576 (Tex. Crim. App. 1993)

Counsel ineffective in aggravated robbery case for failing to inform prosecution prior to the prosecution's deadline that the defendant accepted the plea offer in which the state would recommend a 35 year sentence. Defendant plead guilty without deal and got life.

1990: Flores v. State, 
784 S.W.2d 579 (Tex. Ct. App. 1990)

Counsel ineffective in robbery case for failing to inform prosecution prior to the prosecution's deadline that the defendant accepted the plea offer which called for 10 year sentence. Defendant plead guilty without deal and got life.

1988: Pennington v. State, 
768 S.W.2d 740 (Tex. Ct. App. 1988)

Counsel ineffective in felony indecency with child case for failing to advise the defendant of plea offers in which state was willing to accept misdemeanor plea and not oppose probation. Defendant got 7 years.

1987: People v. Hartley, 
418 N.W.2d 391 (Mich. Ct. App. 1987), modified, 418 N.W.2d 897 (Mich. 1988)

Counsel ineffective for failing to advise client that judge told counsel in chambers that she was not inclined to give probation which deprived defendant of the opportunity to withdraw guilty plea.

Ex parte Wilson, 
724 S.W.2d 72 (Tex. Crim. App. 1987)

Counsel ineffective for failing to tell the defendant about the state's plea offer for 13 years when defendant got automatic life sentence after trial.

1984: Hanzelka v. State, 
682 S.W.2d 385 (Tex. Ct. App. 1984)

Counsel ineffective for failing to advise defendant of plea offer for probation when defendant got a year confinement.