Tuesday, August 21, 2018

Caution: Don't think an open plea gives your client an open appeal

We blogged a while back about the Supreme Court's decision last term in Class v. United States. Class held that a guilty plea does not itself implicitly waive an appellate attack on the constitutionality of the statute of conviction (though explicit waivers within a plea agreement might).

Last week, the Eleventh Circuit reminded us how limited Class's holding is. In United States v. Thomas, the Eleventh Circuit held that the defendant's open plea (a guilty plea without a plea agreement) did itself implicitly waive an appellate attack on the district court's pre-plea denial of his motions to compel discovery and to suppress. Unlike a challenge to the constitutionality of the statute of conviction, these are ordinary non-jurisdictional claims that will always be waived by a guilty plea unless that plea is a Rule 11(a)(2) conditional plea with consent of the court and the government.

But wait! No plea agreement = no waivers, right? No explicit written waivers, that's true, but valid guilty pleas have long been understood to implicitly waive all kinds of claims, including constitutional claims. Class simply recognized one narrow category of constitutional claim that, if not explicitly waived, remains on the appellate table.

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