Wednesday, March 27, 2019
The United States Supreme Court has long held that criminal defendant has the right to the effective assistance of counsel through his first appeal where an appeal is provided to those who can pay for it. See Griffin v. Illinois, 351 U.S. 12 (1956), Douglas v. California, 372 U.S. 252 (1963). This assistance is not without limits. In Anders v. California, 386 U.S. 738 (1967), the Court held that counsel may not abandon a nonfrivolous appeal, but also allowed an attorney to withdraw from an appeal once the appellate court has verified that there are no nonfrivolous grounds to pursue. In Jones v. Barnes, 463 U.S. 745 (1983), the Court recognized that it is the defendant’s authority to determine whether to pursue an appeal, while it is counsel’s responsibility to make strategic choices concerning which issues to raise on appeal.
Late last month, the United States Supreme Court emphasized that a criminal defendant retains the right to an appeal, and that appointed counsel is obligated to note an appeal upon his client’s request, even if his client has waived his right to an appeal in a guilty plea. The Court has previously held that counsel’s performance is deficient when counsel “disregards specific instruction from the defendant to file a notice of appeal.” Roe v. Flores-Ortega, 528 U.S. 470 (2000) (citing Rodriquez v. United States, 395 U.S. 327 (1969); cf. Puguero v. United States, 526 U.S. 23 (1999)). The Court in Roe held that no showing of prejudice would be required when a criminal defendant can provide that he would have taken an appeal, but for counsel’s deficient performance in failing to consult with defendant regarding an appeal where “a rational defendant would want to appeal …, or … demonstrate to counsel that he was interested in appealing.”
In the almost 20 years since that decision, however, many criminal defendants, who have pleaded guilty and, as part of their bargain, have waived their right to an appeal, have not enjoyed their right to have counsel note an appeal on their behalf. In part, I believe it is because many believed that the appeal waiver resulted in there being no nonfrivolous grounds for an appeal, and because counsel believed that no rational defendant would want to appeal and potentially lose the benefit of the plea bargain. Regardless of the rationale, last month the Court once again reminded the bar that the filing of a notice of appeal is a purely ministerial task, and that failing to do so upon defendant’s request is presumptively prejudicial. Garza v. Idaho, 586 U.S. ___ (2019) (slip op., at 14).
I understand the position taken by the government, which may not have agreed to a plea deal absent the defendant’s waiver, but I fundamentally agree with the heart of the Court’s rationale. After all, the criminal defendant is wholly dependent upon counsel when it comes to noting an appeal, although it is the defendant’s decision whether to seek that appeal. Whether counsel agrees with the defendant’s decision is of no import, at least regarding this simple task without which all hope is lost.
As the Court noted in Garza, we cannot expect a defendant to prove he would have had successful claims on appeal where the Court has recognized that the task of determining what claims to press on appeal is typically left to counsel. Id. (slip op., at 12); see also Jones, 463 U.S. 745.
If you represent criminal defendants, make sure you take the time to talk with your clients about their right to an appeal. And, whether or not they have pleaded guilty, if they ask, file a notice of appeal.