7th Circuit Criminal Law Alert

Practice Tip: If Client Asks To Appeal, File That Notice

USA v. Armando Nunez, 06-1014.  Charged with multiple cocaine offenses, Armando Nunez negotiated a plea bargain: the prosecutor dismissed all counts but one and recommended a sentence at the lowest point in the Guideline range. As part of the deal, Nunez agreed not to appeal or file a collateral attack unless the sentence exceeded the statutory maximum or the waiver clause itself should be deemed invalid. The sentence of 160 months' imprisonment followed the prosecutor's recommendation and is well under the statutory maximum. See 21 U.S.C. §841(b).

Nunez has never argued that the waiver is invalid. Nonetheless, he told his lawyer to appeal (or so he says; the assertion has been contested, but we shall assume that Nunez did ask). When the lawyer balked, he filed this collateral attack under 28 U.S.C. §2255 charging counsel with providing ineffective assistance.

Although Nunez never asked the district court for leave to withdraw the plea-and in open court assured the judge that the deal was satisfactory and his assent voluntary-he now maintains that the guilty plea was involuntary because he could not understand what his lawyer told him out of court. If the plea was involuntary, then the waiver falls because it is part of the whole package. See United States v. Wenger, 58 F.3d 280 (7th Cir. 1995).

But the lack of a motion to withdraw the plea means that Nunez must overcome that forfeiture by showing cause and prejudice. (On direct appeal the standard would have been plain error, see United States v. Vonn, 535 U.S. 55 (2002), but on collateral attack the forfeiture is complete and the petitioner must meet the higher standard of cause and prejudice. See United States v. Frady, 456 U.S. 152 (1982).)

Nunez would lose on any standard, however, as the district judge concluded.

Nunez contends that he speaks no English, and that, because during some consultations with his counsel an interpreter was not present (or was not used), he could not understand what counsel told him and therefore did not comprehend the plea bargain's terms. That assertion is inconsistent with assurances given to the judge, under oath, when entering the plea. Nunez told the judge- through an interpreter-that he fully understood the plea and the bargain's terms. The judge asked him detailed questions; his answers evinced knowledge. His counsel explained to the court how the plea had been negotiated and that Nunez often spoke in English and understood their exchanges when interpreters were not present (or were not employed). Nunez told the judge that this was correct.

Defendants cannot obtain relief by the expedient of contradicting statements freely made under oath, unless there is a compelling reason for the disparity. See, e.g., United States v. Peterson, 414 F.3d 825, 826--27 (7th Cir. 2005).  What is more, if, as the record demonstrates, Nunez fully understood the bargain's terms by the time he stood before the judge, it doesn't make any difference whether he understood all of what his lawyer had said earlier. The plea was voluntary.

Because the plea was voluntary, the waiver must be enforced. And that waiver knocks out Nunez's argument that his lawyer failed to follow his direction to file an appeal. The waiver has only two exceptions: an illegally high sentence, and a defect in the waiver itself. A claim of post-sentencing ineffective assistance falls squarely within the waiver.

In saying this, we recognize that six courts of appeals have held that a waiver of appeal does not relieve counsel of the duty to file a notice of appeal on his client's request. These decisions all rely on the holding of Roe v. Flores-Ortega, 528 U.S. 470 (2000), that a criminal defendant has a statutory right to appellate review, and that when counsel utterly frustrates that right by failing to appeal on his client's request, counsel's performance is automatically ineffective.

A lawyer who does not show up for trial might as well be a moose, and giving the defendant a moose does not satisfy the sixth amendment. See United States v. Cronic, 466 U.S. 648 (1984). The same understanding applies when the lawyer does not show up for appeal.

There is much to be said for this position, because waivers of appeal are not airtight. As we have already observed, a waiver stands or falls with the plea bargain of which it is a part. A defendant who wants a lawyer to argue on appeal that the plea was involuntary has a right to that legal assistance.

A rule that a lawyer must file an appeal on demand, and let the court of appeals sort out whether the defendant is entitled to appellate review, avoids any need to make nice distinctions during the 10 days allowed for appeal (or on collateral review if the lawyer fails to file the notice).

Simplicity is a virtue, and a mechanical rule ("On request, file a notice of appeal") could be a good addition to the Federal Rules of Criminal Procedure whether or not the Constitution demands this outcome.

We confess to some doubt about the constitutional reasoning of the circuits that have located in the sixth amendment a rule that a lawyer is the client's puppet. In Roe the Court remarked that a failure to file a notice of appeal "cannot be considered a strategic decision; filing a notice of appeal is a purely ministerial task, and the failure to file reflects inattention to the defendant's wishes." 528 U.S. at 477.

The sort of appeal that the Supreme Court considered in Roe is one where the defendant can gain but not lose. The sort of appeal that Nunez wanted to take was one by which he could lose but not gain. Protecting a client from a lay-person's folly is an important part of a lawyer's job. It will not do to reply, along the lines of Roe, that whether to appeal is a decision entrusted to the defendant personally, on which the lawyer may give advice but not act unilaterally.

But we need not decide whether these arguments are a sufficient response to the mandatory-appeal-notwithstanding-the-waiver-of-appeal approach that our colleagues in other circuits have derived from Roe. For there remains the question whether Nunez is entitled to relief based on a conclusion that his lawyer furnished ineffective assistance after the district judge pronounced sentence.

If the plea (and thus the waiver) is valid, an argument that counsel furnished ineffective assistance is among the foreclosed theories. Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999), holds that a claim of ineffective assistance may be open under §2255, but that "the right to mount a collateral attack . . . survives only with respect to those discrete claims which relate directly to the negotiation of the waiver."

Nunez's challenge to his lawyer's handling of the appeal has nothing to do with the negotiation of the waiver. Thus Nunez's waiver must be enforced and his collateral attack dismissed whether or not his lawyer should have filed an appeal on demand.

AFFIRMED

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .

Depite No Counsel At Prior Plea, Criminal History Points OK

USA v. Josue L. Feliciano, 06-3423.  Josue Feliciano's appeal focuses on the district court's reliance for purposes of a federal sentence on an earlier misdemeanor conviction he received in Florida, in a case where he proceeded without counsel.

Feliciano was before the federal court on charges of distributing methamphetamine in Wisconsin, in violation of 21 U.S.C. § 841(a)(1). He pleaded guilty to those charges. At his sentencing hearing, he objected to the part of the pre-sentence report that recommended use of the Florida conviction in calculating his criminal history for purposes of the federal Sentencing Guidelines. The district court overruled that objection, finding that Feliciano had no constitutional right to counsel under the circumstances presented there.

The government concedes that this finding was erroneous, but it argues that the record supports a finding that Feliciano waived his right to counsel in the Florida proceeding and urges us to affirm his 55-month prison sentence on that basis.

At arraignment, the judge advised Feliciano about the offense with which he was charged and that he was facing up to a year of prison, up to a year of probation, and a fine of up to $1000. The judge also told him that he had the right to be represented by a lawyer and that one would be appointed for him if he could not afford one.

Feliciano confirmed that he understood that he had the right to counsel. Feliciano indicated that he wished to enter his plea without the assistance of counsel, and he said that he had read and understood everything on the written plea form and the form for waiving counsel. He also signed the written waiver form, which said "I hereby waive my right to consult an attorney or to have an attorney appointed." The judge then asked him how he wished to plead, to which he responded "Guilty."

The judge also assured Feliciano that he would not impose any jail sentence for a plea of guilty, and that if the judge did so, he would give Feliciano an opportunity to change his plea. After granting this assurance, the judge then asked Feliciano if he had read and understood everything contained in the plea form and waiver form, and wished to enter a plea without representation. Feliciano responded "Yes."

The judge next examined the voluntariness of Feliciano's plea in the standard manner.  The judge again asked him how he wished to plead, and he again answered, "Guilty." The judge accepted his plea.

Then, without offering Feliciano a chance to withdraw his plea, the judge sentenced him to two days in jail, with two days' credit for time already served, and one year of probation. (From a "glass half full" perspective, this was consistent with the judge's promise not to give jail time, if by that he had meant additional jail time; from the "glass half empty" perspective, it contradicted the promise the judge had just made and gave rise to the problems Feliciano was soon to face in Wisconsin.)

The Supreme Court has held that because a conviction obtained in violation of the Sixth Amendment is "void," it would undermine the fundamental principles of Gideon v. Wainwright, 372 U.S. 335 (1963), to enhance a sentence with an invalid conviction and thereby further restrict the defendant's liberty. Custis v. United States, 511 U.S. 485, 494-95 (1994); see Johnson v. United States, 544 U.S. 295, 303 (2005). For purposes of the Sentencing Guidelines, if the defendant proves that a Sixth Amendment violation occurred, the prior conviction cannot be counted in his criminal history score. See 21 U.S.C. § 851(c)(2). He is thus entitled to raise his argument about the Florida proceeding now, for that limited purpose.

The government concedes that Feliciano had this right, and our independent examination of the issue shows that it is correct to do so.

The Supreme Court has held that, absent a knowing and intelligent waiver, no person may be imprisoned for any length of time, regardless of the classification of the person's offense, unless that person was represented by counsel. Glover v. United States, 531 U.S. 198, 203 (2001); Scott v. Illinois, 440 U.S. 367, 373-74 (1979); Argersinger v. Hamlin, 407 U.S. 25, 31, 37 (1972).

By contrast, when a defendant is convicted without the assistance of counsel but is not sentenced to a period of incarceration, there is no Sixth Amendment violation and thus that conviction may be considered in subsequent sentencing proceedings. Nichols v. United States, 511 U.S. 738, 748-49 (1994). Accordingly, Feliciano had a right to counsel in the Florida case if the right to counsel applies to a sentence of imprisonment that is satisfied by time already served before conviction.

This court's decision in United States v. Staples, 202 F.3d 992, 997 (7th Cir. 2000), supports his argument, though the case is not directly on point.

Since Feliciano did have a right to counsel, we must finally consider whether he waived that right.

The Supreme Court has held that waiver of the right to counsel must be knowing, voluntary, and intelligent. Iowa v. Tovar, 541 U.S. 77, 81, 88 (2004). The accused does not need to appreciate all the consequences flowing from his choice, but he or she must understand the nature of the right and how it would apply in general under the circumstances. Tovar, 541 U.S. at 92. In the context of a guilty plea, a trial court must inform a defendant "of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea." Tovar, 541 U.S. at 81; Speights v. Frank, 361 F.3d 962, 964-65 (7th Cir. 2004) ("It is enough, Tovar held, if the accused knows of his right to counsel and the plea itself is voluntary.").

The Supreme Court has held that waiver of the right to counsel must be knowing, voluntary, and intelligent. Iowa v. Tovar, 541 U.S. 77, 81, 88 (2004). The accused does not need to appreciate all the consequences flowing from his choice, but he or she must understand the nature of the right and how it would apply in general under the circumstances. Tovar, 541 U.S. at 92. In the context of a guilty plea, a trial court must inform a defendant "of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea." Tovar, 541 U.S. at 81; Speights v. Frank, 361 F.3d 962, 964-65 (7th Cir. 2004) ("It is enough, Tovar held, if the accused knows of his right to counsel and the plea itself is voluntary.").

Feliciano had a right to counsel in the Florida proceedings, but we conclude that he waived it. We therefore AFFIRM the judgment of the district court.

For the full opinions visit the 7th Circuit Court of Appeals Web Site.

For more about attorney Michael J. Petro, visit www.mjpetro.com .