Sunday, June 2, 2019

The constitutional duty to consult about an appeal: understanding when it arises, and what it entails.

In 2000, we learned in Flores-Ortega that counsel’s constitutional duty to “consult” with his client about an appeal is triggered when there is reason to think either (1) that a rational defendant would want to appeal (because there are nonfrivolous grounds to do so), or (2) that the particular defendant reasonably demonstrated to counsel that he was interested in appealing.

The Flores-Ortega court further defined counsel’s duty to “consult” as “advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant’s wishes.” 

In February of this year, the Supreme Court reaffirmed in Garza v. Idaho that where counsel fails to consult with his client and thereby deprives the client of an appeal that he otherwise would have taken, prejudice is presumed. Importantly, Garza clarified that this presumption of prejudice holds true regardless of whether the defendant has signed an appeal waiver.

The First Circuit’s recent opinion in Rojas-Medina v. United States provides helpful guidance to defense counsel for understanding when the constitutional duty to “consult” with a client about an appeal may be triggered, and what exactly that duty entails—even when an appeal waiver is at play.  

In Rojas-Medina, the defendant had pleaded guilty and signed an appeal waiver. The district court sentenced him to a term of imprisonment to run consecutive to any state sentence that may be imposed. The First Circuit reversed the district court’s dismissal of petitioner’s Section 2255 motion, holding that trial counsel’s failure to consult with the petitioner about an appeal deprived petitioner of an appeal he otherwise would have taken, and prejudice must therefore be presumed.

Some key takeaways from Rojas-Medina:

When the duty to “consult” arises

1.   A duty to “consult” arises, for example, when “a defendant who received consecutive sentences asked ‘about having time run together’ . . .  or when a defendant asked after sentencing ‘what next? What can we do now?’”

2.   The defendant’s inquiry as to why he received “so much time” and the possibility of filing a postconviction motion triggered counsel’s duty to “consult” with him about his right to appeal. (The defendant had “made it luminously clear that he was dissatisfied with the sentence imposed and interested in whatever relief might be available.”)

3.   When it comes to reasonably demonstrating an interest in an appeal, “[w]hat counts is the substance and thrust of what the defendant says to counsel”; the defendant is not required to use “magic words” to trigger counsel’s duty to advise him on his appellate rights.

What the duty to “consult” entails

1.   Counsel did not fulfill his duty of advising client on the pros and cons of taking an appeal by telling him “if he . . . thought there was anything that could be appealed . . . he had fourteen days” within which to inform counsel that he wanted to appeal. “Counsel’s duty to consult requires more than simply notice that an appeal is available or advice that an appeal may be unavailing.”

2.   Finally, Rojas-Medina reminds us that research is required to provide effective advice regarding the ramifications of an appeal waiver. In Rojas-Medina, the plea agreement did not make any recommendation as to whether the sentence should run concurrent or consecutive to any state sentence. And Circuit precedent established that the issue was beyond the reach of an appeal waiver. Trial counsel’s blanket assertion that an appeal waiver would prevent his client from an appeal not only fell below the constitutional duty to consult as outlined in Flores-Ortega, but also was blatantly wrong.

Rojas-Medina, and the Supreme Court’s opinion in Garza, are explicit reminders that counsel must know not only when we’re required to consult with our clients about an appeal, but also what a constitutionally-sufficient consultation entails. 

And ideally, of course, we will be communicating with our clients about the wisdom and objectives of an appeal long before a sentence is pronounced—especially in a case where we are recommending the client agree to an appeal waiver for a strategic reason.

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