Tag Archives: plea agreement

PLEA AGREEMENTS AND APPEAL WAIVERS: VOIDABLE OR ENFORCEABLE.

Published By Stephen Preziosi

U.S. v. Riggi

649 F.3d 143

Second Circuit Court of Appeals

Decided on Aug. 10, 2011

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Appeal Waivers in Plea Agreements

Issue:

Whether a waiver of the right to appeal in a plea agreement is enforceable when the sentencing court applied the 2008 Sentencing Guidelines and the conviction, a murder conspiracy, ended in 1989 where the 2008  Guidelines contain a significant enhancement, creating a Constitutional Ex Post Facto issue

Holding:

The Court held that waivers of the right to appeal are presumptively enforceable, even when the Ex Post Facto Clause is implicated, as the defendant knowingly waived his right to appeal in the plea agreement where he expressly agreed that the 2008 Guidelines would be used to calculate the offense level and that the plea agreement was binding even if the court used a different Guidelines range.  

Facts:

Defendant Philip Abramo pled guilty to conspiracy to commit murder, conspiracy to commit loansharking and receiving proceeds of extortion in a plea agreement that contained a broad appeal-waiver provision for any sentence eighteen years or less. Abramo was sentenced to 186 months’ imprisonment.

Though the charged murder conspiracy ended in 1989 upon the death of the targeted victim, the 2008 Sentencing Manual Guidelines were applied to determine Abramo’s sentence. He appealed, arguing the application of the 2008 Guidelines violated his ex post facto rights. He invoked contract principles, classifying the Guidelines stipulations as a mutual mistake of fact that rendered his appeal-waiver unenforceable.

Analysis:

General Principles of Appellate Waivers

Waivers of the right to appeal a sentence are presumptively enforceable.  The Second Circuit has repeatedly upheld the validity of appeal waivers if they are knowingly, voluntarily and competently provided by the defendant.  Plea agreements are construed according to contract law principles, but because the plea agreements are unique contracts, the application of ordinary contract principles are tempered with special due process concerns for fairness and the adequacy of procedural safeguards. 

Appellate Waivers: When Are They Voidable

Appeal waivers are voidable when a defendant’s fundamental rights are violated. The Court has voided appeal waivers where the sentence imposed was based on unconstitutional factors such as race (see Gomez-Perez, 215 F.3d at 319), naturalized status (see U.S. v. Jacobson, 15 F.3d 19, 23 (2d Cir.1994), or ability to pay restitution (see U.S. v. Johnson 347 F.3d 412, 415, 419 (2d Cir.2003). Additionally, The Court has voided waivers when a sentencing court “failed to enunciate any rationale for the defendant’s sentence” and thus abdicated its judicial responsibility (U.S. v. Woltmann, 610 F.3d 37, 39-40 (2d Cir.2010).

Appellate Waivers: When Are They Enforceable

The Court upholds the validity of appeal waivers if they are “knowingly, voluntarily, and competently provided by the defendant” (U.S. v. Gomez-Perez 215, F.3d 315, 318 (2d Cir. 2000), and maintains that “other meaningful errors” are insufficient to void a waiver. The Court has enforced appeal waivers where a sentence was arguably imposed contrary to a statutory requirement (see Yemitan 70 F.3d at 748). The Court determines that a defendant who enters a plea agreement “simultaneously waives several constitutional rights” (U.S. v. Waters, 23 F.3d 29, 36 (2d Cir.1994).

Decisive Considerations: Voidable versus Enforceable

The Second Circuit held that in determining whether a waiver of appellate rights will be voided or enforced the decisive considerations are the nature of the right at issue and whether the sentence was reached in a manner that the plea agreement did not anticipate.  Regarding the nature of the right, a defendant can waive fundamental constitutional and statutory rights.

Constitutional Concerns Regarding the Ex Post Facto Clause

In U.S. v. Rosa, (123 F.3d 94 (2d Cir.1997), the Court held that they will set aside the waiver and accept appeal when constitutional concerns are implicated. In Rosa, the parties did not stipulate to a sentence below which the defendant would not appeal, thus the agreement “may have subjected a defendant to a sentence vastly greater than he, or possibly even the Government, could have anticipated” (Id.) Notwithstanding the Rosa case’s “disturbing characteristics,” the Court enforced the appeal waiver.

In this case, however, Abramo’s plea agreement stipulated (1) that the 2008 Guidelines be used; (2) that the applicable Guidelines sentence was eighteen years’ and (3) that the agreement was binding even if the court used a different Guidelines range.

Ignorance of Existing Constitutional Rights as Grounds for Voidable Appeal Waiver

The Court has hinted that ignorance of existing rights may void a plea agreement and a waiver of appellate rights when a “defendant can establish that he was unaware of his Apprendi rights at the time he entered into his plea agreement” (U.S. v. Morgan 386 F.3d 376, 381 n. 3 (2d Cir.2004). Abramo claims the Guidelines error in this case rose from his ignorance of existing constitutional rights, but the Court determines that claim would be relevant only to a claim of ineffective-assistance regarding the advice Abramo received from counsel, as it was his lawyer’s obligation to inform the client of his constitutional rights. But Abramo is not raising an ineffective-assistance claim here.

Furthermore, the Court determines that even if Abramo was unaware of the ex post facto issue when he pled guilty, he was well aware of it by the time of sentencing and he made no motion to withdraw his plea and took no step to preserve the issue for appeal. The Court holds that the plea waiver is enforceable, and Abramo’s appeal is denied.

Protecting the Right to Preserve an Appeal Regardless of Plea Agreement Language

Published By Stephen Preziosi

Garza v. Idaho
No. 17-1026
U.S. Supreme Court
Decided: February 27, 2019

ISSUE

Whether counsel is deemed ineffective where a defendant requests that counsel file a Notice of Appeal and, even in light of a signed  waiver of appeal, defense counsel fails to file the notice of appeal. 

HOLDING

The U.S. Supreme Court held that counsel is ineffective where counsel declines to file a Notice of Appeal at the defendant’s request even where the defendant has signed a waiver of appeal. 

FACTS OF THE CASE

Garza signed a waiver of appeal upon pleading guilty to criminal charges in the state of Idaho. Following Garza’s sentencing, he informed counsel that he wished to pursue an appeal. Counsel advised Garza not to appeal because he had signed a waiver of appeal. After the time to file a notice of appeal expired, Garza sought post-conviction relief on ineffective assistance of counsel grounds. The trial court denied relief and the Idaho Court of Appeals affirmed the state court’s decision. Thereafter the Idaho Supreme Court affirmed, holding that counsel could not be deemed deficient nor did counsel’s performance prejudice Garza. The Court also held that where a defendant has signed a waiver of appeal, the presumption of prejudice, under Roe v. Flores-Ortega, 528 U.S. 470, does not apply. 

COURT’S ANALYSIS

Strickland v. Washington, 466 U.S. 668 set forth a two-prong test a defendant must meet to demonstrate ineffective assistance of counsel: (1) counsel’s performance must be ineffective, and (2) counsel’s deficient performance must have prejudiced the defendant so much as to have deprived him of a right to a fair trial. However, when counsel’s performance is so ineffective that it “deprives a defendant of an appeal that he otherwise would have taken,” prejudice is presumed. Flores-Ortega, 528 U.S., at 484.

Commonly included in a defendant’s plea agreement is a waiver of appeal. At face, a defendant has signed away his right to pursue an appeal. However, the Supreme Court recognizes that the waiver does not prevent the defendant from pursuing appellate claims outside the scope of the plea agreement.

As noted in Flores-Ortega, effort on the part of counsel required to file a Notice of Appeal is “purely ministerial” and “imposes no great burden.” 528 U.S., at 474. Whether an appeal is worth pursuing is not up to counsel; the defendant has the “ultimate authority.” Jones v. Barnes, 463 U.S. 745, 751.

Here, Garza’s attorney clearly disregarded his persistent requests to file a notice of appeal when it was not up to counsel to decide. Because Flores-Ortega has determined that a presumption of prejudice applies when a defendant is “denied counsel at a critical stage,” the Court held that a presumption of prejudice also applies when counsel’s ineffectiveness has deprived the defendant of an “appellate proceeding altogether.” 528 U.S., at 483. Therefore Garza’s attorney deprived him from a critical proceeding to which Garza had the right. 

Contrary to the Government’s argument, Garza need not demonstrate that his claims would have won on appeal. The defendant’s right to this procedure overrides any conditions proposed by the Government and, in any case, it would be improper to require a defendant to determine which arguments he would have made on appeal.
The U.S. Supreme Court reversed and remanded the Idaho Supreme Court’s decision.

Defendant Not Entitled To Specific Performance On Sentencing Promise, Not Constitutionally Required

Published By Stephen Preziosi

Kernan v. Cuero

US Supreme Court

No. 16-1468

Kernan v. Cuero, 2017 WL 5076049 (U.S.,2017)

Decided November 6, 2017

 

No Specific Performance Enforced On Sentencing Promise Made By The Prosecution

 

Issue: Whether the California state court decision to amend a criminal complaint after a plea, leading to a higher sentence, involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States. More specifically, whether the US Supreme Court’s prior decisions required the state court to impose defendant’s original lower sentence or, instead, permit the state to amend a criminal complaint after a plea where it would lead to a higher sentence.

Holding: The Supreme Court held that its prior rulings did not clearly require the state court to impose the original sentence of the plea agreement. “Federal law” as interpreted by the US Supreme Court does not clearly establish that specific performance is constitutionally required.

Facts: In 2005, the state of California charged Cuero with two felonies and a misdemeanor. Cuero originally pleaded “not guilty” but soon after changed his plea to “guilty.” Cuero signed the plea agreement, which stated Cuero “may receive this maximum punishment as a result of my plea: 14 years, 4 months in State Prison, $10,000 fine and 4 years parole.”

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