Guilty pleas and IAC claims
I got a call yesterday afternoon from my buddy John Martin, head of the county PD's appellate division. "I lost a case last week."
"Well, that's the dog-bites-man story for the day," I commiserated.
"No, seriously, I think you got it wrong in your write-up of it."
Intrigued at the unseemly prospect of being mistaken, an unprecedented event, I heard him out. The case was State v. Bohanon, where the defendant had argued on appeal that her lawyer was ineffective for not raising a speedy trial issue. That didn't even make the cut for my 8th District summaries; I blew it off with a sentence in the Case Update: "Too bad, says the 8th District; Bohannon pled guilty, and a plea of guilty waives most IAC claims, including the right to challenge a conviction on speedy-trial grounds on appeal."
It's a bit more complicated than that. The 8th District relied primarily upon the Supreme Court's 1990 decision in State v. Kelley. Kelley was pretty much of a screwball case. The defendant had been convicted of murder, but the State allowed him to plead guilty to voluntary manslaughter in return for agreeing not to appeal. Not only did Kelley appeal, but the 8th District reversed, finding that the trial conviction had "coerced" Kelley into pleading guilty, especially since he had two arguable issues for appeal: that he'd been denied his speedy trial rights, and that his conviction was based on the uncorroborated testimony of an accomplice, which was prohibited at the time. The Supreme Court unanimously reversed, making short shrift of the 8th's opinion, and reaffirming "the conclusion reached by a majority of this court previously, that a guilty plea waives a defendant's right to challenge his conviction on statutory speedy trial grounds."
Kelley's holding is hardly a novel one. When you plead guilty, you give up your right to challenge a whole lot of things. You lose a speedy trial motion, a motion to suppress, or any motion, and when you plead guilty, you give up your right to appeal those things.
You also give up your right to claim ineffective assistance of counsel, to a certain extent. The rule was laid down by the US Supreme Court's 1990 decision in US v. Broce: "A failure by counsel to provide advice [which impairs the knowing and voluntary nature of the plea] may form the basis of a claim of ineffective assistance of counsel, but absent such a claim it cannot serve as the predicate for setting aside a valid plea." Bohanon's argument is that he had a valid speedy trial claim, and the lawyer's failure to tell him that "induced" the plea, in the sense that he wouldn't have pled if he'd known he had a get-out-of-jail-free card.
That argument might seem a stretch, but a lot has happened in the past couple decades since Broce and Kelley were decided. In Padilla v. Kentucky, the Supreme Court reversed a plea because the defendant had been given incorrect advice about the immigration consequences of his conviction. In Lafler v. Cooper, the defendant's trial conviction was reversed because he'd been given incorrect advice about the merits of his defense. Lafler involved a situation where Lafler was charged with attempted murder, and his lawyer urged him to reject the plea offer because Lafler's victims had been shot below the waist, and the lawyer told him that meant the state couldn't prove an intent to kill. (Yeah, I know, that sounds like something our clients would tell us: "They can't convict me of attempted murder, I shot the guy in the ass!")
Let's flip Lafler around: let's say that shooting somebody below the waist did negate an intent to kill, but the lawyer didn't know that, and Lafler pled to, say, felonious assault, which was in fact the highest crime that he could've been convicted of. I think in light of the more recent cases on an attorney's duties in plea bargaining, you could make a decent argument that the plea wasn't "knowing, intelligent, and voluntary," because of the lawyer's failure to recognize a defense and advise his client about it. What's the difference between that and failing to recognize that a client has a valid speedy trial claim, and not advising the client about that?
So there's an argument for a recon, or even a try at the Supreme Court. That's a long, hard slog, though, and the difficulties with appealing an IAC claim after a guilty plea are highlighted by the 2nd District's decision last week in State v. Blessing. Blessing was charged with obstruction of justice and complicity to having a weapon under disability: she helped her boyfriend buy a shotgun from her father, even though she knew the boyfriend wasn't allowed to have one because of his mental illness, and he then used the gun to kill one police officer and wound another. Almost a month before the scheduled trial date, her lawyer filed a motion to continue it, noting that a week before he'd received the State's discovery, which consisted of over 700 pages of documents, and "what has been represented to be many thousands of pages of documents contained on 10 CD-R discs." The State filed a response, noting it had no objection to a continuance, that the case file was "extremely large," and that Blessing was out on bond and there was thus no speedy trial problem.
The judge denied the motion anyway. Blessing entered a plea on the date of trial, and the court gave her the maximum five year sentence. (This was pre-HB 86; the maximum penalty is now three years.) She appealed, contending that the judge's denial of the continuance and her counsel's failure to be adequately prepared for the trial rendered her plea involuntary. The panel spends two pages talking about what Rule 11 requires of judges in plea colloquies; for no apparent reason, because the opinion then notes that Blessing isn't contending that the judge failed to comply with the rule. When it finally addresses the real issues, the court quickly concludes that while "we question the trial court's denial of Blessing's motion for a continuance," she waived the denial of the motion by pleading guilty. As for ineffective assistance, there's no support in the record for the claim that counsel was not adequately prepared for trial, despite his earlier assertion that given the volume of discovery, there was no way he could be.
That might be a hint to take things the post-conviction relief route and present a fuller record, but good luck with that, considering that the PCR petition gets heard by the same judge who denies the motion for continuance. And, of course, that would require the lawyer to come in and say that he advised his client to plead guilty rather than go to trial because he wasn't prepared. I'm guessing that doesn't happen.