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  • Ineffective Assistance of Counsel on Appeal
Ineffective Assistance of Counsel on Appeal January 7, 2013

Several prospective clients called recently asking how they can appeal their Brazos County criminal conviction and sentence resulting from a plea bargain or an open plea to the court (a guilty plea and waiver without a punishment recommendation from the prosecutor). “With great difficulty,” I said. A plea bargain accepted by the trial judge waives most of a defendant’s rights to appeal. However, there are a few cracks in the armor which potential clients should be aware. These may be the basis of an ineffective assistance of counsel claim on appeal.

 

Ineffective Assistance of Counsel - The Failure to Investigate Claim

First, a defendant’s waiver of rights and plea of guilty must be voluntary. That is, the person’s plea must be knowingly and intelligently made. Furthermore, the trial judge must make this finding on the record. However, if a person received ineffective assistance of counsel leading to their decision to plead guilty and waive their rights, a good involuntary plea argument can be fashioned. In that case, the defendant’s plea and waiver can be withdrawn and the defendant can start from square one defending the charges against them. There are many ways a criminal defense lawyer might provide ineffective assistance of counsel leading to an involuntary plea. Following are just a couple to consider.

 

The failure to investigate is a common basis for ineffective assistance of counsel. If the criminal trial lawyer failed to uncover facts about their client’s case that, had the facts been known, would have created a “substantial likelihood” the defendant wouldn’t have waived his rights but insisted upon a trial, can cause an involuntary plea. The failure to locate an alibi witness is an example of the failure to investigate. The failure to discover a prior conviction, being used to enhance punishment, was void or voidable, is another example.

 

Another instance of ineffective assistance is when the criminal lawyer provides their client incorrect advice on the law applicable to the case and that erroneous advice leads the client to plead guilty and waive their rights. One example might be where the client is charged with multiple counts of sexual assault upon a child. The trial lawyer tells their client “if you plead guilty and ask the judge to assess punishment the sentences cannot be stacked upon one another, but can only run concurrently.” (WRONG!) The client pleads guilty, waives his rights, and the trial judge guts the client with stacked prison sentences. In short, the client’s guilty plea was based on the erroneous advice of his lawyer. Had the advice been correct the client would have insisted upon jury trial. That’s an involuntary plea.

 

Another common example of ineffective assistance is when the criminal defense attorney fails to communicate a plea bargain offer made by the prosecutor. Had the plea offer been communicated to the client, they would have accepted it. Although this is not an “involuntary plea” situation, it is yet another way to reverse a bad result for the client based on ineffective assistance of counsel.

 

Reversing a guilty plea and waiver is tough and technical legal work. Many times, if not most, the attempt is unsuccessful because of the great bias contained within the law toward the finality of convictions. However, a good Bryan|College Station criminal defense lawyer, experienced in appeals, can sometimes work the miracle a client needs for a second bite at the apple. But critical time limits often apply! Contact an experienced criminal appeal attorney immediately to discuss your case.

 

Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.

 

Related Posts:

Texas Criminal Appeals

College Station Criminal Defense Overview

Failure to Communicate Plea Offers

 

 

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Stephen Gustitis