Thursday, December 3, 2015

"Playing the role of a potted plant, defense counsel offered no objection"

Ho hum, another day, another guilty client, another plea hearing. May as well sleep through it---am I right?

Not on this Court's watch. If you think plea and sentencing hearings are no more attention-worthy than those pre-flight safety speeches we all tune out, the First Circuit wants you to think again. You certainly don't want to be at the receiving end of this appellate spanking:
Playing the role of a potted plant, defense counsel offered no objection throughout the proceedings, and then on appeal filed an Anders brief, which we rejected, ordering that the appeal proceed with counsel.
United States v. Figueroa-Ocasio, 805 F.3d 360, 367 (1st Cir. 2015). And guess what? The Circuit was right to demand counseled briefing. In fact, the plea colloquy and sentencing hearing were so flawed in this case of an ESL defendant who was "apparently and unwittingly telling the court that he was very likely not guilty of the charge, with no evidence to the contrary" that the Court ultimately reversed the defendant's convictions and sentence:
The district court in this case accepted the defendant's straight plea of guilty to firearms charges without taking all the steps necessary to determining that the plea was entered intelligently and knowingly. The district court also employed an erroneous illustration of the requisite mens rea in order to defuse the defendant's suggestion that he lacked the knowledge needed to support a conviction, thereby leaving us with a record in which it appears that a person pleaded guilty because he was misinformed about the elements of the crime. Finally, the district court also committed procedural error at sentencing by incorrectly calculating the applicable sentencing guideline range. We therefore vacate the conviction and the sentence and remand for proper consideration of the proposed plea and such further proceedings as are then called for.
United States v. Figueroa-Ocasio, 805 F.3d 360, 362 (1st Cir. 2015).

So wake up and smell the colloquy! And if it stinks, appeal it.

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