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Plea withdrawals and the right to counsel

Few ethical issues involving attorneys find their way into the case law more frequently that what you're supposed to do when your client wants to withdraw a plea, and you don't think he should.  Interestingly, the courts don't find that a problem at all, as the 8th demonstrated last week in State v. JonesBut the decision may have pointed to a new line of attack for appeals on this issue.

Defining the role of counsel at a plea withdrawal is difficult, for a number of reasons.  The first is that the attorney might not believe it's in the client's best interest to withdraw the plea.  A couple of years back, in State v. Drake, the 8th District confronted a situation where the attorney went the extra mile, and actually urged the court should overrule his client's motion.  The court found no problem with this, and the decision points to the larger problem with appellate courts' analysis of this situation:  the apparent belief that counsel has no obligations to his client in a plea withdrawal hearing, and can remain silent if he believes that the client would be better off with the plea.  Drake cites a 2002 5th District decision to that very effect, the court there finding no difficulty with the lawyer's refusal to argue for the withdrawal:  "Appointed counsel did not stop representing Mr. Carr.  Instead, counsel refused to help Mr. Carr harm his own best interests."

Well, I'm sorry, but counsel's job is to represent the defendant, not to act as his guardian ad litem, deciding what's in his client's best interests regardless of how the client feels about that.  A lawyer has no obligation to file frivolous motions, but frivolous doesn't mean "likely to lose," it means not having any basis in law or fact, and few motions to withdraw a plea fall into that category, given that they're supposed to be "liberally and freely granted."  And frivolous certainly doesn't mean "he'd be better off taking the deal."  Whether to accept a plea is one of the three things the client has absolute say over (the others are whether to testify and whether to try the case to a judge or jury), so you can make a pretty good argument that the attorney has no more right to decide whether a client should withdraw a plea than he does whether the client should have taken the plea in the first place. 

The other problem is typified by Jones' case.  He pled guilty to aggravated murder and a number of other charges, then at sentencing two hours later asked to withdraw his plea, claiming that he'd been coerced to enter it.  The appellate panel noted that this put his attorneys in an untenable position:  they could hardly be expected to argue that they'd played a part in coercing the plea.  The judge ordered them not to argue the motion, the appellate court noted approvingly.  Jones contended that this left him without counsel, and that the judge should have appointed counsel for him, but the court shrugged this off, noting that the judge had "afforded Jones the opportunity to argue his motion in the same manner in which he made it, orally and pro se."  So in State v. Jones, they affirmed the denial of the motion.

So we have two appellate decisions saying that a defendant doesn't need to be represented by counsel at a hearing to withdraw a plea.  As should be indicated by stating it succinctly, that simply can't be right.  A defendant is entitled to the assistance of counsel at all critical stages of the proceedings, and a motion to withdraw a plea certainly qualifies.  (In fact, about the only way a trial judge gets reversed on these is if he doesn't hold a hearing.)  In what other stage of the proceedings can an attorney say, "well, I'm going to sit on the sidelines for this one," let alone openly advocate against his client's position, as in Drake?

Part of the problem is that the appellate courts so rarely overturn decisions to deny a motion to withdraw a plea that they're inclined to think that whether the defendant had an attorney doesn't even matter.  Both Drake and Collins pursued that line of logic down the rabbit hole, the court in Drake noting that "the adversarial process did not break down because the trial court considered the appropriate factors in determining whether to grant Drake's motion, in spite of his attorney's belief that the plea was valid."  Chew on that one for a minute.  Whose job is it to present and argue the "appropriate factors" for the trial court's consideration?  Why, the attorney, of course, except he was too busy arguing the same position as the prosecutor.  That's like saying you weren't prejudiced by not having an attorney at your trial because the jury obviously considered the "appropriate factors" in finding you guilty.

Jones went back for a second shot this past week, contending in a motion for reopening that his appellate attorney should have argued that the trial court erred by making Jones argue pro se without getting a valid waiver of counsel.  That's sort of the flip side of the argument that was raised in the initial appeal, and in State v. Jones, the court finds that this doesn't meet the requirement for reopening, which is that appellate counsel was ineffective; counsel could have rationally chosen the argument he did make over the argument that Jones now makes, so it's not deficient performance.

Well, as the attorney who handled Jones' initial appeal, I think Jones' argument adds something to the mix, by emphasizing the critical issue in these cases:  the assistance of counsel.  I'm not talking about having to appoint new counsel every time that some guy shows up for sentencing and asks to withdraw the plea he entered a month earlier.  But when the motion to withdraw is made quickly after the plea, as in Jones, or makes the motion sufficiently in advance of sentencing, as in Drake, the defendant's entitled to the assistance of counsel, and if the one he's got can't or won't help him, then he should be entitled to a different one.  That's what the law says.  And that's where these cases should be attacked.

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