NON-CAPITAL SENTENCING ERRORS
U.S. Court of Appeals
Cases
2007: Miller v. Martin,
481 F.3d 468 (7th Cir. 2007).
Counsel in securities violations and frauds case deprived the defendant of representation
by standing silent during sentencing and prejudice was presumed. The petitioner was
convicted following trial in absentia. He retained new counsel for sentencing. Due to
counsel’s belief that the convictions would be reversed due to the absentia trial, counsel
advised him to remain silent because he was concerned the court would learn that the
defendant had been noticed with the trial date. Counsel also remained silent other than to
inform the court that they would not participate. The state court applied Strickland and
found that while counsel’s choice to stand mute was “unorthodox” it was a “purely
strategic decision” that was not unreasonable and not prejudicial. The court held that the
state court ruling was contrary to Supreme Court precedent because the issue should have
been addressed under Cronic. Even assuming that Strickland was the appropriate
standard, the court held that the state court findings were unreasonable under AEDPA.
Counsel’s “advocacy” at sentencing was “non-existent” by his own admission. While
counsel explained a “strategy” for the petitioner to remain silent during sentencing, he
“never explained his own silence.” Even if he had been concerned that the court would
question him about his client’s knowledge, he could have declined to discuss this issue.
Likewise, even if he were concerned that a presentation at sentencing could have
somehow prejudiced the appeal, “which is not the reason he gave the sentencing court for
his decision,” he was wrong and had not conducted any research or consulted the court
about his concerns. The state court decision of “strategy” was unreasonable. Prejudice
was presumed under Cronic. Prejudice was found under Strickland in the alternative.
Counsel’s silence allowed the sentencing court to rely on errors in the petitioner’s
criminal record, the state’s aggravating factors to go unchallenged, and offered no
mitigation, even though the petitioner had already paid restitution to some victims.
Counsel said nothing even though the court was clearly considering imposing maximum
punishments and running some of the sentences consecutively.
Finally, we are compelled to express our concern with the
advocacy on behalf of the State in this matter. We are hard-pressed
to recall so pronounced a dereliction of duty on the part of an
attorney as occurred at Miller's sentencing hearing. Of course, we
do not suggest that the State should have conceded its case, but,
where so great a lapse occurs, it would behoove the State to
acknowledge the gravity of the circumstances and address the
shortcomings in its case. Instead, regrettably, both in the briefs and
at oral argument, we experienced only an intractable effort to
rationalize at any cost the constitutional violation that took place.
Id. at ___.
2003: Alaniz v. United States
351 F.3d 365 (8th Cir. 2003).
Trial and appellant counsel were ineffective for failing
to object to the trial court’s error in adding a second uncharged drug
type to the charged drug type in order to trigger a higher
quantity-based statutory penalty range. The defendant was convicted of
conspiring to possess marijuana with intent to distribute and
distributing marijuana. In determining the penalty range for the
conspiracy count, however, the trial court applied the penalty range
applicable to a person with a prior felony drug conviction involving
1000 kg or more of marijuana for which the sentence was 20 years to
life. The court held that the defendant had a total of almost 1150 kg of
marijuana by aggravating two different drug types. The judge added the
approximately 800 kg of marijuana involved in the conspiracy with 12
ounces of methamphetamine the defendant sold during the conspiracy
period, which the court converted to its equivalent of approximately 340
kg. If the court had not added the methamphetamine, the defendant’s
statutory penalty range would have been 2 years to life as opposed to 20
years to life. Under the sentencing guidelines, there was a difference
of 210 to 262 months versus 240 to 262 months. While the Eighth Circuit
had not previously addressed the aggravation issue, the court noted that
every circuit that has addressed the issue has concluded that a second
uncharged drug type cannot be added to the charged drug type in order to
trigger a higher statutory penalty range. The court, therefore, found
that counsel’s conduct was deficient in failing to raise this issue in
sentencing or on appeal. The court found prejudice because, under
Glover, an error increasing a defendant’s sentence by as little
as six months can be prejudicial within the meaning of
Strickland. If counsel had objected and the appropriate guideline
range had been used, the district court would have been authorized to
impose a sentence up to 30 months shorter than the one the defendant
actually received. The court remanded to the district court to determine
what sentence it would have imposed if it had used the appropriate
guideline range and, if the sentence would have been less than the
original sentence, the district court was instructed to re-sentence the
defendant.
United States v. Conley
349 F.3d 837 (5th Cir. 2003).
Trial and appellate counsel were ineffective in conspiracy and mail
fraud case for failing to object to the defendant’s sentence, which was
greater than the maximum set for the crime for which he was convicted.
The defendant was initially charged in a 15-count indictment with
conspiracy, mail fraud, and money laundering. he was convicted of one
count of conspiracy and four counts of mail fraud, but acquitted on the
10 counts of money laundering. The conspiracy indictment and verdict was
ambiguous but "a sentence imposed for a conviction on a count charging
violations of multiple statutes or provisions of statutes may not exceed
the lowest of the potentially applicable maximums." Nonetheless, the
judge sentenced the defendant for conspiracy with respect to the money
laundering allegation to 121 months. The maximum sentence for conspiracy
with respect to mail fraud though was only 60 months. Because the error
"was obvious" and greatly increased the defendant’s sentence, trial and
appellate counsel were ineffective in failing to assert this meritorious
issue.
United States v. Horey
333 F.3d 1185 (10th Cir. 2003).
Counsel was ineffective in sentencing on drug and firearm charges for
failing to object to an inapplicable career offender enhancement that
increased the applicable guideline range minimums from 292 months to 360
months. Although Glover was decided after the defendant filed
this 2255 action, the court held that Glover did not announce a
new rule of constitutional law and simply clarified the standards.
Prejudice was found, applying Glover, because there was "an increase in the
actual amount of jail time that may be served using the
improperly-applied guideline range."
2002:
Johnson v. United States
313 F.3d 815 (2nd Cir. 2002)
Counsel was ineffective in possession with intent to
distribute crack cocaine case because counsel failed to object to the
erroneous calculation of the defendant’s base offense level in
sentencing. The drugs the defendant sold was less that fifty grams but
the government alleged that the defendant had agreed to sell more that
fifty grams. The pre-sentence report recommended that the base offense
level be set based on over fifty grams. Counsel did not object. At
sentencing, the court noted that the defendant showed a lot of promise
and a lot of capability and sentenced him to the minimum allowed of 151
months. Counsel’s conduct was deficient because the notes in the
sentencing guidelines provide that, if a sale is completed, the amount
delivered should be used to establish the defendant’s base level. The
defendant was prejudiced because the district courts favorable comments
revealed that if the proper offense level of 121 to 151 months had been
used it is unlike that the district court would have sentenced the
defendant to the maximum of 151 months.
2000: United States v.
Franks,
230 F.3d 811 (5th Cir. 2000)
Counsel ineffective in sentencing for
armed bank robbery and using a firearm in connection with a crime of
violence for failing to object to enhancement for an express threat of
death where, under sentencing guidelines, offense level enhancement for
an express threat of death may not be applied where defendant is also
convicted on charge of using firearm in connection with the crime, if
the threat of death is related to the possession, use, or discharge of
the firearm. Defendant was sentenced to 74 months on armed robbery
charge, which was three months more than that actually allowed. Thus,
prejudice found because there was a specific, demonstrable increase in
sentence.
1999: Prou v. United States,
199 F.3d 37 (1st Cir. 1999)
Counsel ineffective in drug case for
failing to challenge the enhancement of sentence based on a prior drug
conviction because the government's notice was untimely. At the time,
the government was required to give notice prior to trial, which
included jury selection. Notice was given in this case 19 days after the
jury was empaneled. Counsel challenged the enhancement on other grounds
but not on timeliness. The issue was not raised on direct appeal.
Petitioner raised in a pro se motion under § 2255. Cause and prejudice
found for the default because the same counsel represented the defendant
on appeal. Counsel's conduct was deficient because there was no
plausible reason for failing to challenge enhancement based on
untimeliness. Prejudice found because the sentence given exceeded the
authority of the court, due to the untimely enhancement which was
jurisdictional, and surpassed the proper guideline by almost two years.
Sentence vacated and resentencing ordered.
1997: United States v. Soto,
132 F.3d 56 (D.C. Cir. 1997)
Trial counsel was ineffective in drug
case for failing to specifically request a downward departure from the
sentencing guidelines based on minimal or minor participation despite
fact that facts appear to warrant such a departure.
Patrasso v. Nelson,
121 F.3d 297 (7th Cir. 1997)
Counsel ineffective in sentencing of
attempted murder and aggravated battery case because counsel by his own
admission did absolutely nothing in preparation for or during the
sentencing. It was so bad that the defendant personally had to object to
prosecutor's misstatement of a prior conviction and defense counsel only
argued a couple of sentences because the judge told him he should. Court
used Cronic standard of complete denial of counsel and presumed
prejudice.
1996: United States v. Breckenridge,
93 F.3d 132 (4th Cir. 1996)
Remanded for evidentiary hearing to
determine whether prior offenses were related, but declared that if they
are trial counsel was ineffective for failing to raise this issue to
prevent defendant from being sentenced as a career criminal. Ordered
district court to vacate sentence if prior offenses
related.
1994: United States v. Castro,
26 F.3d 557 (5th Cir. 1994)
Trial counsel ineffective for failing
to seek judicial recommendation against deportation even though it could
not be said with certainty that the sentencing court would have granted
relief.
1993: Prichard v. Lockhart,
990 F.2d 352 (8th Cir. 1993)
Defendant denied EAC when counsel
failed to object to court's use of a prior out of state marijuana
conviction for enhancement of sentence in violation of a statute
prohibiting the use of such priors.
1992: Tucker v. Day,
969 F.2d 155 (5th Cir. 1992)
At resentencing hearing, court
appointed counsel failed to provide any assistance to defendant at all
and the sentencing judge based the resentencing entirely on his
familiarity with the original sentencing hearing. Per se violation
despite inability to show prejudice.
1989: United States v. Headley,
923 F.2d 1079 (3rd Cir. 1989)
Trial counsel ineffective for failing
to argue that defendant was entitled to downward adjustment in
base-offense level under Sentencing Guidelines on basis that she was a
minimal or minor participant in criminal activity.
United States v. Ford, 918 F.2d 1343 (8th Cir. 1989). Counsel ineffective
for not objecting to base offense level at sentencing hearing on ground
of defendant's acceptance of responsibility which could have lowered the
sentence by over three years.
Harrison v. Jones,
880 F.2d 1279 (11th Cir. 1989)
Counsel was ineffective during the
sentencing phase of defendant's trial by failing to object to the use of
one prior conviction resulting from a plea of nolo contendere and
another prior conviction for an offense that relied on the nolo
contendere conviction. Under state law, admission of nolo contendere
conviction was improper. As a result, inmate received enhanced
punishment under the state Habitual Felony Offender
Act.
1987: Cook v. Lynaugh,
821 F.2d 1072 (5th Cir. 1987)
Trial counsel ineffective for failing
to investigate whether prior conviction used to enhance defendant's
sentence was assisted by counsel because facts of case would have
alerted reasonably competent attorney to issue. If counsel had
investigated and raised issue, there would have been no conviction
usable to enhance defendant's sentence.
Burley v. Cabana,
818 F.2d 414 (5th Cir. 1987)
Trial counsel ineffective for failing
to inform judge of sentencing alternative under state youthful offender
act when judge mistakenly believed that life imprisonment was only
sentence available and stated his opinion that that sentence was too
harsh.
U.S.
District Court Cases
2007: Veal v. United States,
486 F. Supp. 2d 564 (N.D. W. Va. 2007).
Counsel ineffective in sentencing following guilty plea to drug offenses for failing to review
the presentence report prior to sentencing. He also did not prepare objections or even review
the objections submitted by the defendant pro se.
Abraham v. United States,
477 F. Supp. 2d 1232 (S.D. Fla. 2007).
Counsel ineffective in sentencing on conspiracy, kidnaping a postal employee, and other
charges for failure to assert that a prior escape conviction was a non-qualifying offense
under the affirmative defense provision of the federal three strikes law. Counsel argued
that the escape was not a serious violent felony, under 28 U.S.C. § 3559(c), because it did
not involve weapons or violence. The court found it was and that the court was,
therefore, required to impose the mandatory life sentence. Counsel’s conduct was
deficient in failing to make the additional argument, under § 3599(c)(3)(A), of an
affirmative defense, which allowed the defendant the opportunity to establish that the
conviction was a non-qualifying conviction by showing by clear and convincing evidence
that no weapons or guns were used or threatened to be used, and no injuries or death
occurred in the commission of his escape. Counsel’s conduct was deficient because
counsel “failed to simply turn the page of the statute and continue the analysis under §
3599.” Prejudice found because the sentencing record made clear that the court believed
it had no alternative other than to impose a mandatory life sentence. Likewise, although
the court found the movant’s trial testimony to be less than truthful, it had accepted as
true the proffer on this issue, which was proven by clear and convincing evidence with
the supporting state court record in this proceeding. Sentence vacated and resentencing
ordered.
2006: United States v. Gentry,
429 F. Supp. 2d 806 (W.D. LA. 2006).
Counsel ineffective following guilty plea to bank robbery for failing to file any objections to the loss
calculation in the presentence report (PSR). The loss calculation included not only the robbery
proceeds but worker's compensation indemnity and medical expenses associated with a police
officer's wounds incurred during pursuit of the defendant and co-defendants when he was shot by
a co-defendant and certain home repairs that were necessary due to a co-defendant's actions in
breaking into a home during the pursuit. Counsel's conduct was deficient because his notes
indicated that he was aware of a potential issue, but he failed to object and could not articulate any
strategy or rationale for the failure. Although there was no existing case authority supporting the
objection at the time, the plain language of the guidelines excluded consideration of the worker's
compensation payments and medical payments associated with the injuries to the police officer.
Moreover, the fact that the sentencing court rejected the objections raised by co-defendants did not
excuse the omission. "[R]easonably effective criminal defense counsel do not shy from
confrontation and must zealously present their client's arguments." Id. at ___. Prejudice found
because the defendant received a sentence that was 16 months over the guidelines maximum. If
counsel had objected and appealed, as two co-defendants did, the Fifth Circuit would have held that
the worker's compensation indemnity benefits and medical expenses associated with the officer's
wounds were not properly included in the computation. New sentencing ordered.
2005: United States v. Holland
380 F. Supp. 2d 1264 (N.D. Ala. 2005).
Counsel ineffective in sentencing and on appeal in bank robbery case where the defendant
and his co-defendant separately plead guilty and received an order of restitution payment under the Victim and Witness
Protection Act (VWPA) as part of their sentence. The amount of restitution was not addressed by a jury and was based
solely on hearsay in the probation officer’s report. Counsel’s conduct was deficient in failing to object because “[e]verybody
in the courtroom knew that this court considered the federal restitution scheme constitutionally flawed” and the court ended
up imposing “an ambiguous and impossible restitution obligation” on the defendant that was also inconsistent with the terms
placed on the co-defendant, even though restitution was to be “paid jointly and severally.” To make matters worse, the BOP
informed the defendant on numerous occasions while he was in confinement that his restitution had been paid and then 9 years
later informed him that he owed the full amount without even accounting for the $999 paid by the co-defendant. While the
government challenged jurisdiction, the court held that the defendant “is not barred from access to this court to right a wrong
that is partly the fault of this court.” The court found that the disparity in treatment between the defendant and his co-defendant
“is a travesty that calls for correction,” especially since the VWPA “limited the collectibility of restitution to ‘five years from the date
of the sentence.’” The court thus allowed equitable tolling in these 2255 proceedings. Although this case preceded Booker,
Ring, Apprendi and Jones (decided a month after this sentencing), the court found that counsel was ineffective
in failing to test the constitutionality of the restitution award procedure since restitution was not charged in the indictment, not
found by a jury, and the amount ordered to be paid was based on a standard other than proof by the Government beyond a reasonable
doubt. Counsel “was required to recognize the potential constitutional claim” that came later in court rulings because “[t]he law has long
recognized that defense counsel, both trial and appellate, is required to raise potential constitutional claims in view of developing law.”
Here, “this court was on record as doubting the constitutionality of the VWPA, and counsel in other cases had raised the issue in this court.”
2004: Banyard v. Duncan
342 F. Supp. 2d 865 (C.D. Cal. 2004)
Trial counsel was ineffective in failing to investigate and object to
the use of a prior assault conviction as a "serious felony" in
sentencing the defendant to 25 years to life under the "Three Strikes
Law" following a conviction for possession of a controlled substance.
Appellate counsel was also ineffective for failing to assert trial
counsel’s ineffectiveness. Counsel’s conduct was deficient because
counsel advised the defendant to admit to two prior serious felony
convictions even though the defendant’s second strike was not a "serious
felony," as required by state law. The second strike was for an assault
conviction, "which arose from a domestic dispute and is the only
arguably violent behavior in [the defendant’s] record." The court found
that the record on this offense revealed that, although the defendant
was initially charged with a serious felony, he ultimately plead no
contest only to assault, which was not a serious felony, and was
sentenced to time served and probation. The court found that the state
court erred in its judgment in finding that the defendant entered a no
contest plea to a serious felony when the plea transcript revealed
otherwise. Even if the alleged victim of the assault was believed, the
"minor nature" of the defendant’s "assault conviction show that it was
outside the heartland of what would normally constitute assault." In
addition, the "sentence of probation is not consistent with a desire to
punish [the] crime as a serious felony." Without any real analysis, the
court held, under the AEDPA, that the state court’s decision was an
unreasonable application of clearly established federal law."
Blount v. United States
330 F. Supp. 2d 493 (E.D. Pa. 2004)
Counsel was ineffective in sentencing on drug charges for failing to
request a downward departure for time the defendant had already served
in state and county custody on unrelated charges.
Garcia v. United States
301 F. Supp. 2d 1275 (D.N.M. 2004)
Counsel ineffective in
sentencing for drug conspiracy for failing to object to the pre-sentence
report, which improperly calculated points based on the erroneous
finding that the instant offense occurred while the defendant was a
probation for a DWI offense. The defendant was investigated by the DEA
for a conspiracy to sell marijuana. Several co-defendants were arrested
long before him with the last being on February 19, 1999. Following
these arrests, but prior to his own arrest, the defendant was arrested
and plead guilty to DWI. He was ordered to serve one-year of probation
on March 8, 1999. He was indicted for these offenses in June 1999. He
plead guilty pursuant to a plea agreement in which the state would
recommend the lowest penalty available under the sentencing guidelines
as long as the defendant participated in a "debriefing." Counsel at
sentencing had not represented the defendant in the plea negotiations.
During sentencing, although the petitioner asserted he was entitled to
"the safety valve" downward departure, counsel asserted that he was
ineligible without having a full understanding of the underlying facts.
Because of the confusion, the court continued sentencing to allow
counsel to investigate. Nonetheless, because the court had stated
earlier that he would not give the "safety valve," counsel convinced the
defendant that he was ineligible and the case proceeded to sentencing
the same day. Because the court’s statement of ineligibility was based
on counsel’s inaccurate summation of the facts, the court rejected the
government’s argument that the court had already exercised its
discretion to reject the "safety valve." The court found a guideline
range of 168 to 210 months and sentenced the defendant to 168 months.
Counsel’s conduct was deficient in convincing the court and the
defendant that the safety valve did not apply because there was no
evidence and the government never argued that the defendant was involved
in any distribution after February 1999. Indeed, the pre-sentence report
attributed no drug activity to the defendant after July 1998. Thus, any
activity alleged preceded the defendant’s DWI arrest. Thus, the
defendant was entitled to application of the "safety valve," so long as
the defendant participated in the agreed upon debriefing, which counsel
never scheduled because of the erroneous belief that the defendant was
not eligible for the "safety valve." Counsel’s failure to object to the
pre-sentence report was deficient because it "was based entirely on his
lack of understanding of the underlying facts." Prejudice was found
because absent counsel’s error, under the appropriate sentencing
guidelines and the government’s agreement to recommend the low end, the
defendant would have been given a sentence 53 months shorter than the
one he actually received. The court ordered the government to afford the
defendant an opportunity to comply with the debriefing requirements
prior to resentencing.
2003: Somerville v. Conway
281 F. Supp. 2d 515 (E.D.N.Y. 2003).
Counsel was ineffective in sentencing in a burglary and assault case
where he failed to challenge the legality of the defendant’s sentence as
a second violent felony offender. The defendant’s status as a second
violent offender was predicated on a previous conviction in Maryland for
robbery with a deadly weapon. Under New York law, however, the Maryland
offense could not be used as a first offense if the Maryland offense was
not equivalent to any New York felony. In state court, the prosecution
conceded that if trial counsel had raised the issue that the Maryland
prior offense should not have been used. Nonetheless, the state court
affirmed the sentence stating that the defendant received meaningful
assistance from his trial counsel. In federal court, the state no longer
conceded that the crime for which the defendant was convicted in
Maryland could not be used as a predicate for the second violent felony
offender status. The court found that the prior conviction from Maryland
could not be used under New York law because the defendant in Maryland
could be convicted of armed robbery if he used force without an intent
to take property and afterwards stole from the victim. While this would
be felony robbery in Maryland, it would not in New York under the
statute. The court found prejudice because if counsel had raised this
issue, the defendant would not have been adjudicated a second violent
felony offender and would have been eligible for, although not
guaranteed, a sentence far below what he was given. Even if the trial
court had sentenced the defendant to the exact same sentence without
finding a second violent felony offender status, the defendant was
nonetheless prejudiced by being adjudicated as a second violent offender
because "[i]n the event he commits another felony at some point in the
future, he will be exposed to a mandatory maximum prison term of life in
prison." The court also found deficient conduct because "[e]ffective
counsel must be familiar with the sentencing law governing a defendant’s
case." Here, the New York law was manifested both in statute and in case
law, and the Maryland law was clear from its case law.
Given that the only legal question open at petitioner’s sentencing
was his status as a second violent felony offender and that resolution
of the court’s adjudication of that status might have significant
effects on both petitioner’s current sentence and on any sentence he
might receive if he were to commit a subsequent felony, defense counsel
was obliged to be familiar with this law.
The court also found that counsel’s failure could not have been
motivated by any strategic rationale. Analyzing the case under the
AEDPA, the court found that the state court’s decision was an
unreasonable application of clearly established Supreme Court precedent
as set forth in Strickland.
2000: Hill v. United States,
118 F. Supp. 2d 910 (E.D. Wis. 2000)
Counsel ineffective in sentencing in
possession of firearm case because counsel failed to contest a sentence
enhancement for armed career criminal status when circumstantial
evidence revealed that defendant had received discharge certificates
from previous felonies that contained no firearm restrictions. Prejudice
found because without the improper enhancement the maximum sentence
would have been 10 years rather than 15 years.
1995: Cabello v. United States,
884 F. Supp. 298 (N.D. Ind. 1995)
Trial counsel ineffective in
sentencing for not objecting to the erroneous application of the career
offender provision of the Sentencing Guidelines to petitioner's case
which resulted in sentence that was too long. Habeas relief granted
despite procedural default of not raising on appeal because trial
counsel was also appellate counsel.
1994: Wogan v. United States,
846 F. Supp. 135 (D. Me. 1994)
Trial counsel ineffective for failing
to advise defendant that government could appeal downward departure of
sentence and obtain resentencing based on 750 grams of heroin. Based on
counsel's advice that he would get the same sentence as his
co-conspirator, defendant waived his right to testify to challenge the
finding of 750 grams even though defendant's testimony could have
reduced it to only 50 grams.
1991: Butler v. Sumner,
783 F. Supp. 519 (D. Nev. 1991)
Trial counsel ineffective during
sentencing for complete failure to present argument or evidence in
mitigation. Defendant had been convicted of numerous sexual assaults on
a young boy and was sentenced to maximum possible (21 consecutive life
sentences) even though state didn't ask for maximum.
1988: Gardiner v. United States,
679 F. Supp. 1143 (D. Me. 1988)
Trial counsel ineffective in cocaine
distribution case where counsel completely failed to speak on the
defendant's behalf in sentencing or present any evidence in mitigation.
Prejudice presumed.
1987: Janvier v. United States,
659 F. Supp. 827 (N.D.N.Y. 1987)
Counsel ineffective for failing to
petition the sentencing court to issue a recommendation against
deportation because counsel was ignorant of the deportation
consequence.
Military
Cases
2006: United States v. Dobrava
64 M.J. 503 (Army Ct. Crim. App. 2006).
Counsel was ineffective is false statement and larceny case for failing to call the accused
to the stand for an unsworn statement in sentencing. The accused had been stationed in
Afghanistan, near the Pakistan border, in an area where the threat level was high and
several soldiers had been killed in the months prior to the accused's theft of money from
a local national's house during a search of weapons. Counsel and the accused had agreed
that an unsworn statement would be important but counsel did not call the accused.
While the accused alleged that counsel simply forgot to call him, counsel asserted that he
determined at the last moment that the statement would only dilute strong mitigation
evidence and made a tactical decision not to call the accused. Regardless of the reason,
counsel's conduct was deficient because the decision to make a statement or not was
personal to the accused. Prejudice established because the accused's express statements
of apology, contrition, and a desire to be rehabilitated might have persuaded the judge to
give a lesser sentence.
2005: United States v. Davis
60 M.J. 469 (2005)
Counsel ineffective in rape and sexual abuse of step-daughter (over a period of seven years) case for basing the entire sentencing strategy on an erroneous conclusion that the accused officer would be allowed to retire from the military with benefits if not sentenced to a dismissal. Prior to these charges, the accused had been passed over twice for promotion and, in order to avoid involuntary separation, had applied for voluntary retirement under the discretionary Temporary Early Retirement Authority (TERA). He was approved for TERA, but these charges arose before his separation and the TERA retirement was terminated. The accused plead guilty to some charges and was found guilty on other contested charges. In sentencing, counsel argued for a longer period of confinement in order to avoid a punitive discharge so the accused could obtain retirement benefits for his family. The panel sentenced the accused to life but did not order dismissal. After sentencing, counsel finally learned that eligibility for TERA required that an adverse action be “resolved in favor of the member.” The accused, thus, was not eligible for TERA and was separated with an “other than honorable” discharge. Counsel’s conduct was deficient in failing to research the TERA eligibility or to even make a phone call, which would have revealed a policy that a felony conviction disqualified the accused from TERA retirement. There was no reasonable strategy because the sentencing strategy was “fundamentally flawed from its inception because of a failure to research the critical law.” Id. at 474-75. Prejudice was found because the accused would not have asked for increased confinement if he had been adequately advised. If defense counsel had not asked for the increased punishment, the panel likely would have accepted the government’s recommendation of 40 years and a dismissal rather than sentencing the accused to life with no dismissal.
2002: United States v. Saintaude
56 M.J. 888 (Army Ct. Crim. App. 2002)
Counsel
ineffective in rape, robbery, and adultery case for conceding that
the defendant’s pre-service Florida
pleas of nolo contendre "with adjudication withheld" were civil
convictions and for failing to investigate and present mitigation
evidence. If counsel had researched, counsel would have learned that the
nolo contendre pleas would have been inadmissible if the defendant were
being sentenced in Florida and they were, therefore, inadmissible under
R.C.M. 1001(b)(3), which looks to the law of the jurisdiction to
determine whether prior convictions are "convictions" admissible in
sentencing. Instead of researching this issue, counsel conceded the
convictions but simply argued undue prejudice. Counsel were also
ineffective for failing to prepare and present mitigation evidence,
which would have included volunteer work, evidence that the defendant
was an exemplary soldier, and a good father.
1996: United States v. Boone,
49 M.J. 187 (C.A.A.F. 1998) (affirming 44 M.J. 742 (Army Ct. Crim. App.
1996))
Counsel ineffective in sentencing
phase of rape case where appointed military defense counsel had
developed available evidence from members of the chain of command who
would have testified to rehabilitative potential and from defendant's
uncle who was a Major in the Air Force who would have testified
concerning the defendant's background, upbringing, and peaceful nature.
When civilian defense counsel was retained, military counsel turned over
notes of interviews but there was no discussion of sentencing witnesses
between counsel and the available mitigation evidence was not
presented.
1986: United States v. Howes,
22 M.J. 704 (A.C.M.R. 1986)
Trial counsel ineffective in
possession of marijuana with intent to distribute case where the defense
produced three witnesses, during the sentencing hearing, who recommended
that he be retained in the service. During cross-examination of two of
these witnesses, the prosecution asked them if they were aware that the
accused had been previously enrolled in the Army's Alcohol and Drug
Abuse Prevention and Control Program. Information concerning
participation in this program is privileged and, pursuant to
Congressional mandate and an Army regulation, cannot be used in a
court-martial. Thus, counsel was ineffective for failing to object to
this line of questioning.
State Cases
2007: State v. Thiefault,
158 P.3d 580 (Wash. 2007).
Counsel ineffective in sentencing following indecent liberties and attempted rape convictions
for failing to object to the sentencing court’s comparability analysis regarding the defendant’s
prior Montana conviction for attempted robbery, which led to the sentencing court counting
that offense as a strike under the Persistent Offender Accountability Act (allowing a life
without parole sentence based on three prior convictions or “strikes) and sentencing the
defendant to life without parole. Counsel’s conduct was deficient because the Montana
offense was broader than its Washington counterpart because the Montana statute required
a lesser mens rea. There was also insufficient evidence in the record for the court to factually
compare the offense to make a proper comparability determination. Prejudice found because
counting the Montana offense as a strike allowed the court to sentence the defendant to life
without parole.
Pettis v. State,
212 S.W.3d 189 (Mo. App. 2007).
Counsel ineffective in sentencing following guilty plea to possession of a controlled
substance within a correctional institution for affirmatively misstating the parole
consequences of a consecutive sentence to the court. The defendant was serving a life
sentence and had been approved for parole prior to these charges. Following these
charges, his parole was cancelled and a new parole hearing was scheduled. The
defendant entered a plea in this case pursuant to an agreement wherein the state agreed to
maximum of five years but left to the court the determination of whether the sentence
should be concurrent or consecutive to the life sentence. During the sentencing, the court
inquired about the impact on parole and clearly wanted to impose a sentence with some
deterrent effect but also to show some leniency to the defendant. In response to the
court’s inquiries, counsel stated that his “release date is to going to be pushed backward”
and urged the court not to impose a consecutive sentence. The court gave the defendant a
sentence of four years consecutive. Counsel’s conduct was deficient because counsel
affirmatively misstated the real consequence, which was that a consecutive sentence of
any length effectively converted the life sentence to one of life without parole. Prejudice
was clear because the court had no inkling the defendant’s parole eligibility would be
extinguished by a consecutive sentence when the court clearly wanted to show some
leniency in sentencing the defendant to four years rather than the five recommended by
the state.
2006: Estrada v. State
149 P.3d 833 (Idaho 2006).
Counsel ineffective in plea to rape case for failing to advise the defendant of his right to refuse to cooperate with a court-ordered psychosexual evaluation
for purposes of sentencing. After accepting the plea, the trial court ordered a psychosexual evaluation of the defendant, which counsel informed the defendant must be completed,
even though the defendant initially refused to participate. Counsel’s conduct was deficient in failing to advise the defendant that he still retained his right against self-incrimination
following his plea and he was not required to participate in the psychosexual evaluation. Prejudice found because the sentencing judge’s specific, repeated references to the psychosexual
evaluation suggest that it played an important role in the sentencing and the evaluation report included a number of unfavorable and derogatory comments, including references to the
defendant’s potential for future violent actions.
People v. Thimmes
41 Cal. Rptr. 3d 925 (Cal. App. 2006).
Counsel ineffective in sentencing for felony drug case for failing to advise the court that the defendant had been warned of the consequences of his
prior conviction and the Three Strikes Law prior to the defendant's no contest plea in exchange for a sentence of 32 months. The strike offense admitted was a 1999 criminal
threat for which the defendant was sentenced to probation. Counsel's conduct was deficient because the trial court assumed that the defendant had been advised that the
1999 conviction would count under the Three Strikes Law even though criminal threat was not included for purposes of that provision until 2000. Prejudice found because the trial court was
permitted to decline to apply the Three Strikes Law and had stated that the case was "a pitiful one," but applied the law based on the assumption that the defendant had previously been
advised of the consequences.
People v. Le,
39 Cal. Rptr. 3d 146 (Cal. App. 2006)
Counsel ineffective in robbery and burglary case for failing to object based on double jeopardy to consideration of both offenses in calculating the restitution fine. Counsel’s conduct was
deficient and prejudicial because state law precluded multiple punishment for a single act or omission and the defendant’s sole intent was to steal from a drugstore. Thus, the defendant should
have been sentenced solely on the robbery conviction but the burglary conviction was included, which essentially doubled the restitution fine.
James v. State
628 S.E.2d 892 (S.C. App. 2006)
Counsel was ineffective in armed robbery case for failing to object to the State’s failure to provide written notice to the defendant of the intent to seek a sentence of life without parole. While counsel received written notice, state law required service on both counsel and the defendant
2005: Shanklin v. State
190 S.W.3d 154 (Tex. App. 2005).
Counsel ineffective in punishment phase of non-capital murder case for failing to investigate or present evidence from at least 20 available witnesses and instead called only the defendant to testify that he was sorry. The prosecutor requested a sentence of 25 to 35 years but the jury imposed a sentence twice that length. The available witnesses would have testified that the defendant was an excellent father, helped his friends and relatives, and worked hard.
Mikell v. State
903 So. 2d 1054 (Fla. Dist. Ct. App. 2005). .
Counsel was ineffective in probation revocation proceedings for failing to inform the court that it had authority to continue probation. The defendant had entered a no contest plea to lewd acts and been sentenced to 10 years suspended and five years probation. After he committed several probation violations and was brought before the court counsel presented mitigation evidence and the defendant asked for mercy. The trial court indicated her belief that legally she could not extend mercy and sentenced the defendant to concurrent 10 year terms. Trial counsel’s conduct was deficient because state law clearly allowed the court to continue probation. Prejudice was found because the record reflects that the trial court would have considered continuing the probation if she had known that she could do so. Remanded for resentencing by the same trial court without opposition from the state.
Matthews v. State
868 A.2d 895 (Md. Ct. App. 2005)
Counsel ineffective and prejudice presumed in probation violation case for failing to file a motion for modification of sentence when requested to do so by the defendant. Defendant entitled to filed a belated motion for modification of sentence.
Freeman v. State
167 S.W.3d 114 (Tex. Ct. App. 2005)
Counsel ineffective in sentencing on aggravated sexual assault charge for failing to adequately investigate and present evidence of the defendant’s history of mental illness. While counsel was aware that the defendant had previously been hospitalized on a couple of occasions (and the defendant testified about this during trial), counsel presented only testimony from the defendant’s mother in sentencing asking the jury to take his illness into account. If counsel had adequately investigated, the evidence would have shown that the defendant had another prior hospitalization following an attempted suicide and had been receiving regular outpatient treatment for more than a year prior to the crime. He had last been seen three weeks before the crime. Counsel’s conduct was deficient under Wiggins because counsel failed to investigate and there was no strategy for this failure. Prejudice was found because counsel only presented lay testimony from the defendant and his mother on this issue. Although “it is sheer speculation” that the jury would have given a lighter sentence if additional evidence had been presented, the court found a reasonable probability of a different outcome.
Andrews v. State
159 S.W.3d 98 (Tex. Crim. App. 2005)
Counsel ineffective in sentencing for indecency and sexual assault of child case for failing to object to the prosecutor’s argument that the defendant’s sentences could not be made consecutive, which was a misstatement of law and contrary to the state’s pretrial motion asking to make the sentences consecutive or cumulative. Counsel’s conduct was deficient (and could not be explained by trial strategy) because “counsel has a duty to correct misstatements of law that are detrimental to his client.” Prejudice was found because the argument left the jury with the false impression that the maximum the defendant would serve was 20 years when the maximum sentence was actually 80 years.
2004: Mata v. State
141 S.W.3d 858 (Tex. Ct. App. 2004)
Counsel was ineffective in non-capital sentencing for murder. Counsel
failed to object to the court’s erroneous instruction on parole
eligibility that led the jury to believe the defendant would be eligible
for parole in less than 30 years, which was not the case. Counsel also
failed to object to the prosecutor’s argument, in violation of the state
statute, that repeated this improper information and invited the jury to
consider parole eligibility and good time credits in determining the
sentence. Counsel’s conduct was deficient and prejudicial for failing to
object to the prosecutor’s argument because the defendant received the
maximum punishment of 99 years for a murder that was not "especially
heinous." The court also found the "cumulative" effect of these two
errors to require reversal.
Bargeron v. State
895 So. 2d 385 (Ala. Crim. App. 2004).
Counsel ineffective in theft case for failing to appear at the
restitution hearing, which was "a component of the criminal-sentencing
proceeding." Remanded for new restitution hearing.
State v. Saunders
86 P.3d 232 (Wash. Ct. App. 2004).
Trial counsel was ineffective in sentencing in murder, rape, and
kidnapping case for failing to argue that rape and kidnapping
constituted the "same criminal conduct" for purposes of calculating
offender score. ASame criminal
conduct@ refers to the
situation where there are two or more crimes that (1) require the same
criminal intent, (2) are committed at the same time and place, and (3)
involve the same victim. Here, the primary motivation for sexually
assaulting the victim by inserting a television antenna in her anus was
to dominate her and to cause her pain and humiliation. Because this
intent arguably was similar to the motivation for the kidnap, defense
counsel was deficient for failing to make this argument. Prejudice was
found because the case law provides strong support for this argument.
New sentencing granted.
McCarty v. State
802 N.E.2d 959 (Ind. Ct. App. 2004).
Counsel was ineffective in failing to prepare and present mitigating
evidence in sentencing following the defendant’s plea to child
molestation. Counsel’s conduct was deficient because he met with the
defendant only once, conducted no investigation, and did not retain an
investigator or mental health expert. Prejudice was found because
adequate investigation and presentation would have revealed that the
defendant was mentally retarded, he had been molested himself as a
child, there was a likelihood that he could be successfully
rehabilitated, and his confession admitted acts beyond what the victims
had reported. Because of the trial court’s reluctance to find prejudice
and grant relief, the court exercised its state constitutional authority
to revise the defendant’s sentence and reduced his sentence by 10 years
to the presumptive term of 30 years.
Storr v. State
126
S.W.3d 647 (Tex. Ct. App. 2004).
Counsel was ineffective in sentencing in aggravated kidnaping case
for failing to obtain an instruction on voluntary release of kidnaping
victim in a safe place. The defendant was charged with aggravated
kidnaping, which is a felony in the first degree. Under state law,
however, if the defendant raises the issue of voluntary release of the
victim at the punishment stage and proves that by a preponderance of the
evidence, the offense is a felony in the second degree. The first degree
felony is punishable by imprisonment of 5 to 99 year. The second degree
felony is punishable by a term of 2 to 20 years. Counsel’s conduct was
deficient in failing to request the instruction because the evidence
conclusively established that the appellant voluntarily released the
victim in a safe place. The victim was left in his car at a post office
which is exactly the point were he had been abducted to start with. The
court found that it was inconceivable that counsel had some trial
strategy for not requesting an instruction on safe release given the
significant difference in punishment. Prejudice found because the
defendant was sentenced to 35 years which is 15 years more then the
maximum imprisonment allowed for the second degree felony.
2003: Carswell v. State
589 S.E.2d 605 (Ga. Ct. App. 2003)
.
Counsel’s performance was deficient in an aggravated assault
case for failing to object to two prior convictions used by the state in
aggravation of sentence because those guilty pleas may not have been
entered into voluntarily. Because the court found that reversal was
required on the substantive issue, the court found that the question of
prejudice with respect to the ineffectiveness of counsel was
moot.
State v. Washington
68 P.3d 134 (Kan. 2003)
Counsel was ineffective in sentencing hearing
for premeditated murder. Following the trial, initial counsel was
suspended from the practice of law and relieved by the trial court. New
counsel was appointed and requested a copy of the trial transcript, but
that was denied. She attempted several times to meet with the prior
counsel but he did not meet with her. She did nothing more to prepare
for sentencing even though she had four months to do so. Although
ineffectiveness was not raised on appeal (just a general unfairness of
the sentencing proceedings argument, the court addressed the issue
sua sponte. Counsel’s conduct was deficient because counsel
apparently did not read the court file or talk to defense witnesses that
had testified in the trial to learn of the defendant’s PTSD. She also
was aware even of the statutory provisions that required a 50 year
sentence without parole. She presented no evidence and made no argument
in sentencing. Prejudice found because "counsel simply abdicated her
position with the excuse that she had not been given a trial
transcript." Id. at 159.
Turner v. State
578 S.E.2d 570 (Ga.
Ct. App. 2003)
Counsel was ineffective in drug distribution
case for failing to object to the use of a prior conviction in
sentencing when the defendant had received no notice it would be used.
The defendant pled guilty and the prosecutor recommended a sentence of
15 years with four or five to serve, but the trial court had been
provided with a probation report that revealed two prior convictions for
selling drugs. Based on this, the judge rejected the prosecutor’s
recommendation and sentenced the defendant to 20 years with 10 years to
serve. State law provides that only such evidence in aggravation as the
state has made known to the defendant prior to trial shall be
admissible. The court has interpreted this statutory provision to
prohibit use of an undisclosed probation report showing prior
convictions in sentencing. Counsel’s conduct was deficient in failing to
object to the state’s use of the undisclosed probation report in
sentencing. The defendant was prejudiced "because the length of his
sentence was fixed based in part on the improper evidence."
2000: West v. Waters,
533 S.E.2d 88 (Ga. 2000)
Counsel ineffective in sentencing in
sale of cocaine case for failing to object to a prior conviction
presented in aggravation of sentence without timely notice, since
statute requires "clear notice" prior to the jury being sworn for trial.
Prejudice found even when defense counsel was aware of conviction. [This
opinion reverses prior Georgia cases to the contrary.]
State v. Jones,
769 So.2d 28 (La. Ct. App. 2000)
Counsel ineffective in sentencing in
drug case for failing to object that deferred adjudication probation,
which was not a valid conviction under state law, should not have been
used as predicate conviction for sentence enhancement under Habitual
Offender Law.
Gary v. State,
760 So. 2d 743 (Miss. 2000)
Counsel ineffective in armed robbery
case for failing to argue for sentencing under Youth Court Act.
Defendant was 17 years old with no priors and did not possess gun during
robbery (as he codefendant did). State law did not require the court to
sentence under the youth act but did require the court to consider it.
Counsel's conduct in failing to request youth sentencing was deficient
and prejudice was found because the defendant was sentenced to 45 years
when he could have gotten only a year under the Youth Act if the court
had accepted the argument.
Milburn v. State,
15 S.W.3d 267 (Tex. Ct. App. 2000)
Counsel ineffective in drug case for failing
to prepare and present mitigation evidence. Counsel conducted no investigation.
Numerous witnesses were available to testify that defendant was a good father to
his daughter who had severe medical problems and that he was a good employee.
Counsel presented no evidence and made only a benign argument responding to the
state's argument that the defendant was previously on probation, that he had not
been rehabilitated, and that he should be given 30 years and a $50,000 fine.
Jury gave 40 years and $75,000 fine. Court found that this was a close call of
constructive denial of counsel because essentially no different that if trial
court had prohibited the defense from presenting mitigation in light of strong
state case. Prejudice found "even though it is sheer speculation that
character witnesses in mitigation would have in fact favorably influenced the
jury's assessment of punishment," id.
at 271, because any mitigation better than none and the jury gave even
harsher sentence than state asked for.
1999: Kellett v. State,
716 N.E.2d 975 (Ind. Ct. App. 1999)
Counsel ineffective in DUI causing
serious injury case for failing to object to the admission of a ledger
in sentencing or to adequately cross- examine the witness concerning
facial errors in the ledger. The injured victim's mother prepared the
ledger to show uncompensated medical bills and testified that the total
was approximately $140,000. State allowed the trial court to order
restitution of the actual costs and the court did so based solely on the
mother's testimony and the ledger. Review of the ledger, however, would
have revealed that several charges for over $30,000 and $10,000 were
duplicated and that there were mathematical errors in the document.
While the court did not find deficient conduct solely related to
admission of the ledger or solely related to failure to cross-examine
the witness, the court found that counsel's conduct was deficient in
failing to do one or the other and the defendant was
prejudiced.
State v. Robinson,
744 So. 2d 119 (La. Ct. App. 1999)
Counsel ineffective in armed
robbery case for failing to properly move to reconsider the sentence on
the basis of excessiveness following the trial. Defendant was convicted
of armed robbery for stealing tennis shoes and was sentenced to 30 years
(without parole) out of a possible 5 to 99 years. Under state law,
counsel can raise excessive sentence issue in motion to reconsider
either orally at the time of sentencing or in written motion following
sentencing. Counsel made no oral motion and filed a form motion
afterwards but did not check the block on excessive sentence. He instead
checked the block for statute being unconstitutional with respect to
maximum or minimum punishment, which appellate counsel conceded was
frivolous in this case. Failure to raise excessiveness of sentence in
the motion to reconsider waives the issue for appeal. Thus,
excessiveness issue procedurally barred. Nonetheless, the court vacated
the sentence on the basis of ineffective assistance of counsel. The
trial court stated no basis for sentencing the defendant to 30 years,
other than guilt and that he lied on the witness stand. Likewise, the
facts did not support such a harsh sentence. The defendant was 19 years
old and had no prior convictions or arrests. Counsel should have moved
to reconsider because the sentence was excessive on this
record.
Davis v. State,
336 S.C. 329, 520 S.E.2d 801 (1999)
Counsel ineffective for failing to
object to trial court's consideration of exercise of right to trial in
sentencing the defendant to ten years for distribution of crack.
Following sentence, counsel moved to reconsider on the basis that
several similarly situated defendants got lesser sentences. The court
said that the other sentences were lower because the other defendants
plead guilty. Because it is an abuse of discretion for the trial court
to consider the defendant's exercise of his right to trial as an
aggravating factor, counsel was ineffective for failing to
object.
Scott v. State,
334 S.C. 248, 513 S.E.2d 100 (1999)
Counsel ineffective in drug
trafficking case for failing to object to the court considering a 1987
misdemeanor conviction for simple possession and sentencing the
defendant as a second offender under the statute. The 1987 charge was
actually a bond forfeiture for failure to appear and not a "conviction"
for purposes of sentencing under the drug statute. A bond forfeiture may
be considered a "conviction" only when the legislature specifically
provides that the two are equivalent. Because the legislature has done
so in other contexts, the court infers the legislature did not intend
for a bond forfeiture to be the equivalent of a conviction in this
context. The defendant was prejudiced because the maximum sentence for a
first offense is 10 years and for a second offense 30 years. The
defendant was sentenced to 30 years.
1998: Trinh v. State,
974 S.W.2d 872 (Tex. Ct.
App. 1998)
(6) Counsel ineffective in
possession of weapon case because counsel filed a motion for probation
and to have the jury assess punishment which she intended to amend after
conviction to elect that the trial court assess punishment because Trinh
would have been ineligible for probation from a jury due to a previous
felony offense. Counsel was unaware, however, that the sentencing
election could not be withdrawn after the verdict without the State's
consent. Thus, the defendant was denied any possibility of
probation.
State v. Anderson,
588 N.W.2d 75 (Wis. Ct. App. 1998)
Counsel ineffective in child sexual
assault case for failing to seek an adjournment of the sentencing
hearing to permit him to finish reviewing the presentence investigation
report with the defendant. Counsel received the report only 30 minutes
prior to the hearing and notified the court that the defendant objected
to the report because the victims' had recanted some of the information
included, and that some of the allegations of sexual abuse in the report
had not been substantiated. The trial court offered to allow the
defendant to withdraw his pleas or to adjourn the hearing in order to
allow the defense more time to prepare. The defense declined both
offers. Counsel only noted that the defendants pleas were only two
fondling two children as opposed to the more aggravated allegations of
sexual abuse in the PSI. The appellate court held that counsel was
ineffective in failing to seek the adjournment in order to prepare to
refute the inaccurate information and to argue the defendant's theory
that much of the sexual abuse was done by others. The court found
prejudice because it was clear from the trial court's statements that
the court relied on much of the disputed information in sentencing the
defendant to 80 years out of a possible 100 year
sentence.
1997: State v. Jones,
700 So. 2d 1034 (La. Ct. App. 1997)
Counsel ineffective in a case where
the state sought habitual offender status because counsel did not file
the required written response denying the allegations which would have
placed burden on state to prove. Likewise, counsel did not object to the
state's documentary evidence which failed to prove a required element
that the defendant had been advised of his privilege against
self-incrimination prior to pleading guilty to the prior
offenses.
Oliva v. State,
942 S.W.2d 727 (Tex. Ct. App. 1997), review dismissed as improvidently
granted, 991 S.W.2d 803 (Tex. Crim. App. 1998)
Counsel ineffective in sentencing
because counsel failed to object to the prosecutor's closing argument
which referred to defendant's lack of remorse and failure to testify in
the sentencing despite the fact that defendant testified in the
guilt-or-innocence phase.
1996: People v. Siedlinski,
666 N.E.2d 42 (Ill. App. Ct. 1996), appeal denied,
684 N.E.2d 1341 (Ill. 1997)
Counsel ineffective for failing to
request sentencing credit against fine where statute allowed credit of
$5/day for each day of pretrial confinement.
Glivens v. State,
918 S.W.2d 30 (Tex. Ct. App. 1996)
Counsel ineffective in sentencing of
aggravated robbery case where extraneous unadjudicated prior robbery
admitted during guilt phase for limited purpose of establishing
identity, motive, etc., but counsel did not object to consideration of
the extraneous offense in sentencing and the record does not reflect
that judge did not consider. Law changed in 1993, however, and under
current law not applicable here extraneous unadjudicated offenses could
be considered in sentencing.
People v. Brasseaux,
660 N.E.2d 1321 (Ill. App. Ct. 1996)
Counsel ineffective where defendant
was seeking to attack sentences and filed pro se motion to reconsider
sentences but counsel did not contact defendant or conduct any
investigation prior to the hearing at which the defendant was not
present. See also People v. Brasseaux, 625 N.E.2d 1115 (Ill. App. Ct.
1993).
1995: Kucel v. State,
907 S.W.2d 890
(Tex. Ct. App. 1995)
Counsel ineffective in sentencing for
aggravated sexual assault on child for arguing that defendant would not
be eligible for parole for at least two years when it was actually
fifteen years. Counsel also ineffective for failing to correct error or
object to erroneous jury charge even after prosecutor pointed out
error.
Thomas v. State,
923 S.W.2d 611
(Tex. Ct. App. 1995)
Counsel ineffective in sentencing for
organized crime activity for failing to object to evidence concerning
extraneous unadjudicated crimes of threatening police officers, stalking
police officers and the prosecutor, and soliciting the murder of police
officers. [Statute has since been amended effective 9/1/93 to allow
evidence of extraneous unadjudicated crimes in
sentencing.]
Durst v. State,
900 S.W.2d 134
(Tex. Ct. App. 1995)
Counsel ineffective in sentencing
after guilty plea for possession of marijuana for eliciting during
direct examination of defendant testimony concerning six other
unadjudicated extraneous marijuana hauling trips which would have been
inadmissible otherwise under the state law at the time of this
trial.
1994: Ware v. State,
875 S.W.2d 432
(Tex. Ct. App. 1994)
Trial counsel ineffective for failing
to offer evidence in jury sentencing to prove that the defendant had no
prior felony convictions (or ask the defendant that question during his
testimony) and was thus eligible for probation where counsel sought
probation and jury asked for information on probation eligibility and
unsuccessfully attempted to probate portion of
sentence.
1993: Craig v. State,
847 S.W.2d 434
(Tex. Ct. App. 1993)
Counsel ineffective in murder case for jury
sentencing purposes where counsel: did not object to state argument in guilt
phase that jurors now understand why prosecutors ask for certain verdicts in
drug cases in order to avoid these tragedies; elicited damaging information
about defendant; argued in guilt phase that defendant and "bandito"
friends not looking for victim when there was no evidence of "bandito"
friends; argued in sentencing that the verdict would not have any deterrent
effect on any participants including defendant; elicited testimony that
defendant bragged about killing; suggested in argument that there was no
favorable evidence for defense and that's why defense called no witnesses;
misquoted witness who said defendant said victim was dead and told jury that
defendant said "I killed or I shot him"; and during guilt argument
summarized evidence in a state-oriented fashion. See also Craig v.
State, 783 S.W.2d 620 (Tex. Ct. App. 1989).
1992: In Interest of A.P.,
617 A.2d 764 (Pa.
Super. Ct. 1992)
Counsel ineffective for failing to
file a timely appeal of juvenile disposition.
Commonwealth v. Batterson,
601 A.2d 335
(Pa. Super. Ct. 1992)
Counsel ineffective for failing to
move for reconsideration of sentence applying deadly weapon enhancement
because a motor vehicle is not a "weapon."
1991: Jenkins v. State,
591 So. 2d 149
(Ala. Crim. App. 1991)
Trial counsel ineffective for failing
to investigate and object to admission of prior Florida convictions
which were all based on nolo contendere pleas and were thus improperly
admitted under Alabama law for purpose of sentence enhancement under
habitual offender act.
Weaver v. Warden,
822 P.2d 112 (Nev.
1991)
Counsel ineffective in robbery case
for failing to present evidence that defendant had PTSD from Vietnam
service.
Chubb v. State,
303 S.C. 395, 401
S.E.2d 159 (1991)
Trial counsel ineffective in burglary
case, where a burglary conviction mandated a life sentence unless the
jury recommended mercy, for failing to present mitigation evidence or
argue for mercy during the guilt phase because of her erroneous
expectation that a separate sentencing proceeding would be
held.
Ex parte Canedo,
818 S.W.2d 814
(Tex. Crim. App. 1991)
Counsel ineffective for advising
defendant in aggravated sexual assault on child case to request judge
alone sentencing based on belief that defendant was eligible for shock
probation when in fact judge could not give shock probation but jury
could have assessed probation.
Ex parte Felton,
815 S.W.2d 733
(Tex. Crim. App. 1991)
Trial counsel ineffective for failing
to determine that a prior conviction used to enhance punishment from 5
to 15 years was invalid under state law. The prior was robbery by
firearm in 1961 which was a capital offense. State law prior to 1965
provided that the court could not accept a guilty plea to a capital
offense unless the state affirmatively waived the capital element which
they didn't in this case.
Schofield v. West Virginia Department of Corrections,
406 S.E.2d 425 (W. Va.
1991)
Trial counsel ineffective in murder
case for failing to present mitigation evidence concerning defendant's
limited mental ability, her history of social and emotional problems,
and her family background, and argue for mercy recommendation where
without recommendation there was a mandatory life without parole
sentence. Counsel did not argue mercy because defendant insisted she was
guilty only of manslaughter and counsel feared that to argue for mercy
recommendation would be considered by jury as a concession of guilt to
murder.
1990: Ex parte Walker,
794 S.W.2d 36
(Tex. Crim. App. 1990)
Trial counsel ineffective for failing
to file in timely manner the defendant's motion electing to have the
jury assess punishment.
1989: People v. Barocio,
264 Cal. Rptr.
573 (Cal. Ct. App. 1989)
Trial counsel ineffective for failing
to inform the defendant of his right to request a recommendation against
deportation at his sentencing hearing because counsel was unaware of the
recommendation possibility.
Commonwealth v. Lykus,
546 N.E.2d 159
(Mass. 1989)
Counsel ineffective in murder,
extortion, and kidnapping case for failing: to argue defendant's
employment history, charitable activities, and civic contributions; to
call witnesses on defendant's behalf; and to argue for concurrent
sentences.
Commonwealth v. Kozarian,
566 A.2d 304
(Pa. Super. Ct. 1989)
Counsel ineffective for failing to
preserve claim that sentencing guidelines were improperly applied to
enhance punishment.
Commonwealth v. Albert,
561 A.2d 736 (Pa.
1989)
Counsel ineffective for filing brief
in support of petition for post-conviction adjustment of sentence which
was "completely lacking in substance."
Commonwealth v. Arthur,
559 A.2d 936 (Pa.
Super. Ct. 1989)
Counsel ineffective for failing to
raise and preserve issue of legality of sentence which ordered
uncompensated confiscation and destruction of defendant's firearms
collection as it had never been claimed that the firearms were used in
any illegal act.
Ex parte Walker,
777 S.W.2d 427
(Tex. Crim. App. 1989)
Trial counsel ineffective for not
objecting during sentencing to otherwise inadmissible evidence of the
defendant's prior aggravated robbery conviction and defendant's
involvement in three other aggravated robberies.
Cooper v. State,
769 S.W.2d 301 (Tex. Ct.
App. 1989)
Counsel ineffective for failing to
object to void conviction used for enhancement, allowing defendant to
testify about it which opened door to 14 prior convictions from other
jurisdictions which would not have been presented otherwise, and failing
to object to inadmissible portion of penitentiary packet regarding
another conviction.
1988: State v. Brown,
525 So. 2d 454
(Fla. Dist. Ct. App. 1988)
Trial counsel ineffective per se for
failure to advise defendant that he could elect to be sentenced under
sentencing guidelines after guilty pleas.
People v. Sagstetter,
532 N.E.2d
1029 (Ill. App. Ct. 1988)
Counsel ineffective for failing to
assert therapist-recipient privilege with regard to statements made by
defendant at suggestion of therapist which were admitted in sentencing
hearing.
Gallegos v. State,
756 S.W.2d 45 (Tex.
Ct. App. 1988)
Trial counsel ineffective for failing
to inform the defendant that under state law the jury but not the trial
court could grant probation prior to defendant electing judge
sentencing.
Turner v. State,
755 S.W.2d 207
(Tex. Ct. App. 1988)
Trial counsel ineffective for failing
to inform the defendant that under state law the jury but not the trial
court could grant probation prior to defendant electing judge
sentencing.
Stone v. State,
751 S.W.2d 579
(Tex. Ct. App. 1988)
Trial counsel ineffective for advising
the defendant that trial court could grant probation when only jury
could prior to defendant electing judge sentencing.
1987: People v. Plager,
242 Cal. Rptr. 624
(Cal. Ct. App. 1987)
Trial counsel ineffective for failing
to advise the defendant that the state could not have established that
the alleged prior felony convictions were residential burglaries as
required to be adjudicated serious felony for enhancement purposes, and
counsel even stipulated to the factual basis for the alleged
priors.
Medeiros v. State,
733 S.W.2d 605
(Tex. Ct. App. 1987)
Trial counsel ineffective for failing
to inform the defendant that under state law the jury but not the trial
court could grant probation prior to defendant electing judge
sentencing.
1986: Steffans v. Keeney,
728 P.2d 948 (Or.
Ct. App. 1986)
Counsel ineffective for failing to
object to orders for restitution and costs when sentenced to long term
confinement and failing to object to order in present case to pay
restitution previously ordered in three earlier cases as a condition of
probation.
1985: State v. Stacey,
482 So. 2d 1350
(Fla. 1985)
Trial and appellate counsel
ineffective for failing to research and recognize that trial court's
retention of jurisdiction over first one third of 99 year sentence was a
violation of ex post facto clause because robbery occurred before
effective date of statute which allowed retention of
jurisdiction.
Watson v. State,
287 S.C. 356, 338
S.E.2d 636 (1985)
Trial counsel ineffective in burglary
case, where a burglary conviction mandated a life sentence unless the
jury recommended mercy, for failing to advise defendant who pled guilty
that he had the right to have a jury impanelled following the guilty
plea to consider a recommendation a mercy.
Snow v. State,
697 S.W.2d 663 (Tex. Ct. App. 1985), review dismissed, 794 S.W.2d 371 (Tex. Crim.
App. 1987)
Trial counsel ineffective for failing
to request a sentencing instruction on probation and asking for prison
sentence based on erroneous belief that defendant was not entitled to
probation.
6. Prior to Hernandez
v. State, 988 S.W.2d 770 (Tex. Crim. App. 1999) (en banc), Texas did not
apply the Strickland standard in non-capital sentencing hearings. Texas
previously applied a state law standard of "reasonably effective
assistance," Ex parte Duffy, 607
S.W.2d 507 (Tex. Crim. App. 1980), in non-capital sentencing
hearings.