Not Outcome Determinative
“I don’t understand … the client got a departure sentence. How can he file an ‘ineffective assistance of counsel’ claim against me?” decried the defense attorney.
The exasperated statement from the attorney presupposes that the departure sentence was the best possible outcome. In some cases, a departure (from the presumptive guidelines) sentence is an outstanding resolution to a criminal case. Then again, in some cases, a departure sentence is a terrible outcome for various reasons. Some of those reasons could be that the defendant is actually and factually innocent, or the police committed some massive constitutional violation, or with a little determination a better outcome could have been achieved. Or, it could simply be that the defense attorney misrepresented the law or certain facts to the client and deceived him into entering into the plea agreement. In any event, the proper analysis usually to any “ineffective assistance of counsel” claim begins with a question and ends with the definitive legal answer “it depends.”
In fact, the outcome of a case in terms of a sentence or resolution is but a single factor in any Sixth Amendment “ineffective assistance of counsel” analysis. Keep in mind, the outcome cannot be the sole determinate factor. If the outcome was only factor to review, then in a death penalty case where the defendant pleads for a life sentence in avoidance of death could never be subject to an ineffective assistance of counsel claim (which is not true).
The standard for evaluating an ineffective assistance of counsel claim was announced by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland established a two-part test for an ineffective assistance of counsel claim: a criminal defendant must show two things:
(1) counsel’s performance fell below an objective standard of reasonableness (in that counsel’s performance was “deficient,” such that counsel’s errors were “so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment”); and
(2) counsel’s performance gives rise to a reasonable probability that if counsel had performed adequately, the result would have been different (the deficient performance must be so serious as to deprive the defendant of a fair trial).
In Strickland, the U.S. Supreme Court announced the following standard for determining ineffective assistance of counsel after a defendant has been found guilty at trial:
The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction … has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense … [T]he proper standard for attorney performance is of reasonably effective assistance.
Strickland, 466 U.S. 668, 686-687 (1984). In Downs v. State, the Florida Supreme Court announced that a defendant must prove prejudice affirmatively. Downs, 453 So. 2d 1102 (Fla. 1984). See also Harrington v. Richter, 561 U.S. 86, 112-3, 131 S.Ct 770, 178 L.Ed.2d 624 (2011) (“In assessing prejudice under Strickland, the question is not whether a court can be certain counsel’s performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. (citation omitted) Instead, Strickland asks whether it is ‘reasonably likely’ the result would have been different. (citation omitted) This does not require a showing that counsel’s actions ‘more likely than not altered the outcome,’ but the difference between Strickland’s prejudice standard and a more-probable-than-not standard is slight and matters ‘only in the rarest case.’ (citation omitted) The likelihood of a different result must be substantial, not just conceivable.”)
There is a slightly different variation of the Strickland rule when the Defendant enters into a plea bargain with the government or pleads open to the court (without any agreed upon resolution). When a defendant enters a guilty plea rather than proceeding to trial, the two-part test from Strickland, supra, still applies, but the prejudice prong “focuses on whether counsel’s ineffective performance affected the outcome of the plea process.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Specifically, Justice Rehnquist wrote:
The longstanding test for determining the validity of a guilty plea is “whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970); see Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969); Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962). Here petitioner does not contend that his plea was “involuntary” or “unintelligent” simply because the State through its officials failed to supply him with information about his parole eligibility date. We have never held that the United States Constitution requires the State to furnish a defendant with information about parole eligibility in order for the defendant’s plea of guilty to be voluntary, and indeed such a constitutional requirement would be inconsistent with the current rules of procedure governing the entry of guilty pleas in the federal courts. See Fed.Rule Crim.Proc. 11(c); Advisory Committee's Notes on 1974 Amendment to Fed.Rule Crim.Proc. 11, 18 U.S.C.App., p. 22 (federal courts generally are not required to inform defendant about parole eligibility before accepting guilty plea). Instead, petitioner relies entirely on the claim that his plea was “involuntary” as a result of ineffective assistance of counsel because his attorney supplied him with information about parole eligibility that was erroneous. Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice “was within the range of competence demanded of attorneys in criminal cases.” McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970). As we explained in Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), a defendant who pleads guilty upon the advice of counsel “may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann.” Id., at 267, 93 S.Ct., at 1608.
Our concern in McMann v. Richardson with the quality of counsel’s performance in advising a defendant whether to plead guilty stemmed from the more general principle that all “defendants facing felony charges are entitled to the effective assistance of competent counsel.” 397 U.S., at 771, and n. 14, 90 S.Ct., at 1449, and n. 14; see Reece v. Georgia, 350 U.S. 85, 90, 76 S.Ct. 167, 170, 100 L.Ed. 77 (1955); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Two Terms ago, in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we adopted a two-part standard for evaluating claims of ineffective assistance of counsel. There, citing McMann, we reiterated that “[w]hen a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness.” 466 U.S., at 687-688, 104 S.Ct., at 2065. We also held, however, that “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id., at 694, 104 S.Ct., at 2068. This additional “prejudice” requirement was based on our conclusion that “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.” Id., at 691, 104 S.Ct., at 2067.
Id., 56-57. (Emphasis added).
Although the defense attorney might feel the outcome is good, neutral and detached observers, with more experience and understanding of the criminal justice system may beg to differ. This is not playing “Monday morning quarterback,” but more akin to patient seeking a second opinion from a more experienced and skilled surgeon about the particular operability of a specific cancer. Additionally, attorneys with more trial experience may see the “impossible” factual scenario as not-so-impossible in terms of facts and strategy. In fact, this problem happens more-often-than-anyone-cares-to-admit. The case may require a lot of work and preparation for a trial that the current defense attorney simply does not want to do for whatever reason (i.e., not paid enough or lack of recognizing the issues or lack of skill and experience to handle such a complex case).
There are strict time frames to evaluate a potential ineffective assistance of counsel claim whether it be in federal court or state court. If you believe that you or a loved one has been a victim of “ineffective assistance of counsel,” please call the Candela Law Firm at (813) 417-3645.
Anthony Candela is a Board-Certified criminal trial attorney. He opened the Candela Law Firm, P.A., in 2014 and handles primarily criminal trials and appeals (both state and federal). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. He is recognized as a three-time, board-certified attorney by the Florida Bar in Criminal Trial (2008-2023). He is also admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #agoodtampadefenselawyer
Call Anthony Candela at (813) 417-3645 office 24/7/365 for a free consultation or visit on the web www.candelalawfirm.com for further information.
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