By: Jody Gody
A defendant whose lawyer’s poor performance scuttled his chances at an appeal should be presumed to have been harmed by the lawyer’s actions, even if the defendant has waived his appeal rights through a plea deal, the U.S. Supreme Court held in a split opinion on Wednesday.
The ruling came in Gilberto Garza Jr.’s challenge to an Idaho high court ruling that ended his appeal. Garza pled guilty to drug possession and assault in 2015 and entered plea agreements in which he waived his right to appeal his conviction and sentence.
Nonetheless, the judge said at Garza’s sentencing that he had the right to appeal, and Garza went on to repeatedly ask his attorney to do so. The attorney did not, and Idaho courts did not see that as a problem. In his Supreme Court petition, Garza had argued his counsel provided ineffective assistance by not filing the appeal.
Supreme Court precedent had previously said such claims require defendants to show their cases were harmed or prejudiced by the lawyer’s ineffectiveness. The high court refined that concept in a 2000 case called Roe v. Flores-Ortega, recognizing that defendants who are denied a lawyer at a crucial stage in a criminal proceeding, such as the filing of an appeal, should get a “presumption of prejudice.”
On Wednesday, six justices ruled that the presumption of prejudice applies “regardless of whether the defendant has signed an appeal waiver.”
Justice Sonia Sotomayor wrote for the majority. Justice Clarence Thomas penned a dissent joined by Justice Neil Gorsuch and in part by Justice Samuel Alito.
The split was in part forecast by the justices’ positions at oral arguments in the case last October.
The case saw the court evaluate the nature of plea waivers, which defendants often agree to in plea deals, and notices of appeal, which are the first step in any appeal.
The high court began by saying that the so-called waivers are not as airtight as they may appear, since even the most restrictive waiver cannot erase the defendant’s right to dispute whether or not the waiver was voluntary.
“A defendant who has signed an appeal waiver does not, in directing counsel to file a notice of appeal, necessarily undertake a quixotic or frivolous quest,” the court said.
Notices of appeal merely tell a court that an appeal is to be filed, and filing one is not a matter of legal strategy that is up to a defendant’s lawyer but rather a “simple, nonsubstantive act that is within the defendant’s prerogative,” the court held.
Even if a defendant like Garza has given up most rights to appeal in order to get the benefit of a plea bargain, no defendant waives every right. Because of that, “simply filing a notice of appeal does not necessarily breach a plea agreement, given the possibility that the defendant will end up raising claims beyond the waiver’s scope,” the court said.
A lawyer’s failure to file a notice of appeal at a defendant’s behest should therefore entitle the defendant to a new chance at appeal, the court concluded.
Justice Thomas and two of his peers disagreed, writing that a defendant like Garza who has given up the right to appeal most of the issues in his case should not automatically be able to say his lawyer failed for not initiating an appeal.
Instead, the defendant should have to show either that the waiver was involuntary, that his appeal deals with an issue outside the waiver or that the government breached the plea deal, the dissenting justices said.
Justices Thomas and Gorsuch went further, warning the court against further broadening defendants’ right to counsel, saying it is “not an assurance of an error-free trial or even a reliable result.”
“In assuming otherwise, our ever-growing right-to-counsel precedents directly conflict with the government’s legitimate interest in the finality of criminal judgments,” the two justices wrote.
Garza’s attorney Amir Ali, who directs the criminal justice appellate clinic at Harvard Law School, told Law360 on Wednesday that the petitioner’s side is “very pleased with the court’s resolution of this case, which reflects a clear vindication of Mr. Garza’s constitutional right to an effective attorney.”
Idaho Attorney General Lawrence Wasden issued a statement thanking the justices for their “thorough review of the case” and saying the state respects the high court’s decision.
A spokeswoman for the U.S. Department of Justice declined to comment on the ruling.
Garza is represented by Amir H. Ali of the Roderick & Solange MacArthur Justice Center and Eric D. Fredericksen and Maya P. Waldron of the Boise Public Defender’s Office.
Idaho is represented by Kenneth K. Jorgensen and Paul R. Panther of the Idaho Attorney General’s Office.
The government is represented by Allon Kedem and Eric J. Feigin of the Solicitor General’s Office and Sangita K. Rao of the U.S. Department of Justice’s Criminal Division.
The case is Gilberto Garza Jr. v. State of Idaho, case number 17-1026, in the U.S. Supreme Court.