By Evan Lee
on Oct 23, 2018 at 2:53 pm
The last few decades have seen a sharp rise in the number of plea bargains. The Supreme Court itself has estimated that 97 percent of federal prosecutions and 94 percent of state prosecutions end in plea bargains. This increase in negotiated guilty pleas has accelerated a seeming anomaly — appeals from guilty pleas. In turn, prosecutors now commonly insist on the inclusion of appeal waivers in plea agreements.
This chain of developments, roughly speaking, has led the U.S. Supreme Court to Garza v. Idaho, which it will hear on October 30. When a defendant’s trial lawyer fails to file an appeal as the client has instructed on the ground that the plea agreement included an appeal waiver, must the defendant demonstrate “prejudice” in order to make out a claim of ineffective assistance of counsel? Since the Supreme Court’s 2000 decision in Roe v. Flores-Ortega, prejudice has been presumed when a lawyer has failed to file an appeal as directed by the client. But Flores-Ortega, now almost two decades old, did not involve an appeal waiver. Garza gives the court an opportunity to address this situation.
In early 2015, Gilberto Garza Jr. pleaded guilty in Idaho district court to possession of a controlled substance and no contest to aggravated assault. Each plea agreement contained a provision stating that Garza “waives his right to an appeal.” Yet there had already been a sign that Garza perhaps harbored doubts about waiving his appeal rights. The Guilty Plea Advisory Form that Garza was required to complete before entering a plea asked, “Have you waived your right to appeal your judgment of conviction and sentence as part of your plea agreement?” Garza answered “No.” At the hearing, the district judge noted that Garza’s plea agreements contained appeal waivers, yet stated: “You, Gilberto Garza, Jr., are hereby notified that you have the right to appeal this order to the Idaho Supreme Court.”
Shortly after entering his pleas, Garza informed his attorney that he wished to appeal. When he received no response, he followed up with phone calls and letters. His attorney never filed an appeal, reasoning that an appeal would be “problematic” in light of the appeal waiver. After all, if the guilty plea were undone, Garza would have lost the benefit of what the attorney viewed as a good deal.
Garza then filed a petition for postconviction relief in the Idaho district court. He claimed that the attorney’s refusal to file an appeal constituted ineffective assistance of counsel (IAC). Under 1984’s Strickland v. Washington, in order to prevail on an IAC claim, a petitioner must demonstrate that the lawyer’s deficient performance was “objectively unreasonable” and that the petitioner suffered prejudice as a result. The state district court noted that eight federal circuits presume prejudice under the circumstances in Garza’s case, but it was more persuaded by the reasoning of the two federal circuits that require proof of prejudice in the individual case. By that standard, Garza’s petition was denied.
The Idaho Supreme Court agreed. It found the presence of the appeal waivers decisive. Had Garza not waived his right to appeal, his attorney’s failure to appeal would have been presumptively prejudicial. But “[o]nce a defendant has waived his right to appeal in a valid plea agreement, he no longer has a right to such an appeal.”
In the U.S. Supreme Court, the petitioner often wants the court to reach a broad issue, while the respondent wants it to stick to a narrow one. This case may present the opposite situation. The state’s own merits brief frames the question presented narrowly: “Does the ‘presumption of prejudice’ recognized in Roe v. Flores-Ortega (2000) apply where a criminal defendant instructs his trial counsel to file a notice of appeal but trial counsel decides not to do so because the defendant’s plea agreement included an appeal waiver?” Garza’s merits brief sticks closely to the prejudice issue. Yet the state’s merits brief is mainly devoted to a logically prior question: When a lawyer refuses to file an appeal because of a waiver, is that deficient performance under the first prong of Strickland?
The state flatly asserts that such attorney conduct does not constitute deficient behavior. The decision of whether to honor a plea agreement is not merely ministerial, argues the state, but strategic. The attorney acts in his or her client’s interests when refusing to breach a plea agreement whose underlying bargain benefited the client. Although the initial decision of whether to appeal belonged to Garza, once he accepted the appeal waiver, it was no longer his choice. “Counsel simply held Garza to that choice,” argues the state.
It would not be surprising if the more liberal justices viewed this line of argumentation as an overreach. Is it a defense lawyer’s job to act as an arm of the state in enforcing a contract against his client? Shouldn’t a defense lawyer at least notify his client before the deadline expires that he will not be filing an appeal, as instructed? Is the deficient-performance prong of Strickland even properly before the court in this case?
One could hardly fault the state for wanting to raise the deficient-performance issue. The big policy question that underlies this case is to what degree the courts will enforce appeal waivers. A pronouncement in favor of the broad, if not absolute, enforceability of such waivers would promote the smooth functioning of plea bargaining as the principal method of keeping criminal caseloads under control. On the other hand, every Supreme Court decision allowing a defendant to appeal despite an apparent waiver throws an element of doubt into the plea bargaining “market,” as it were. Prosecutors aren’t sure exactly what they are getting in exchange for lighter sentences.
Not everybody wants the plea-bargaining market to function smoothly, though. In its amicus brief, the libertarian Cato Institute warns that the mushrooming institution of plea bargaining threatens defendants’ effective rights to trial under the Sixth Amendment. It argues that allowing attorneys to ignore client instructions to appeal undermines client autonomy as enshrined in the criminal procedure portions of the Bill of Rights.
In support of its underlying objective of promoting the broad enforceability of appeal waivers, the state strongly implies that this case is governed by a simple syllogism. Ineffective assistance of counsel presumes the existence of a right to counsel. The right to counsel has to be attached to some underlying procedural right, such as the right to trial or the right to appeal. Here, however, Garza waived his right to appeal. Thus, his attorney could not possibly have rendered ineffective assistance with respect to any appeal.
The conservative justices might well press Garza’s counsel to explain why this syllogism doesn’t decide the case. Judging from the petitioner’s brief, the response will be that Garza didn’t waive his entire right to appeal. Under Idaho law, as elsewhere, the right to challenge the voluntariness of a plea or appeal waiver is not itself waivable. Therefore, Garza, like every defendant who agrees to an appeal waiver, retained a limited right to appeal based on involuntariness. As to this limited right to appeal, Garza’s lawyer rendered ineffective assistance by allowing the deadline to pass.
There may be questions from the bench about the factual particulars surrounding the precise scope of the appeal waiver. The state’s brief rejects Garza’s argument regarding the limited right to appeal by asserting that Garza never intended to claim involuntariness, and that he only wanted to challenge the sentence itself. As to an appeal of the sentence itself, Garza did waive his right, and that is all that matters, according to the state. It is irrelevant that he retained a right to appeal based on involuntariness because he never intended to appeal on that basis. But the spartan text of the appeal waivers themselves leaves room for argument on this point, and, as the petitioner’s reply brief points out, all types of arguments on appeal will generally be handled in a single proceeding.
Those wishing to follow the oral argument ought to familiarize themselves with Roe v. Flores-Ortega, on which Garza heavily relies. There, a defense lawyer failed to file an appeal of a second-degree murder conviction as instructed by the client. The conviction resulted from a guilty plea. Writing for the court, Justice Sandra Day O’Connor applied a presumption of prejudice. The lawyer’s failure to file an appeal had worked a forfeiture of the entire appeal, and she had failed to consult with the client about whether to take an appeal, a decision belonging to the client. And, given that Flores-Ortega was operating “pro se,” representing himself instead of having an attorney, it would be unfair to require him to assemble the evidence demonstrating that the failure to appeal was prejudicial.
Garza’s counsel confidently asserts that the presumption of prejudice applied in Flores-Ortega applies in his case, for exactly the same reasons. But Flores-Ortega, now nearly two decades old, did not involve an appeal waiver. For the state, as for the Idaho Supreme Court, that changes everything.
The passage of nearly two decades has not only changed the underlying practice of plea bargaining, it has changed the membership of the court. Only three justices remain from the Flores-Ortega court – Justices Clarence Thomas, Ruth Bader Ginsburg and Stephen Breyer.
If Ginsburg or Breyer appear skeptical about whether Flores-Ortega applies here, Garza could be in trouble. If any of the usually conservative justices question whether the deficient-performance issue is properly before the court, the state could be in trouble.
An earlier version of this post indicated that Justice Sandra Day O’Connor applied a presumption of prejudice in a portion of her opinion in Roe v. Flores-Ortega that was only joined by a plurality of justices; in fact, this came in the portion of her opinion joined by all nine justices, including the three justices still on the bench, Justices Clarence Thomas, Ruth Bader Ginsburg and Stephen Breyer.
