Empty Promises at the Guilty Plea Hearing

Slight update to the post, if interested ….

Zen Law Guy

So, I was sitting in a courtroom waiting for a case to be called and I noticed something disturbing. A guy standing at the podium, which happened to be next to my chair, was pleading guilty to a felony when the judge asked him, “Do you understand the terms of your plea agreement?” The guy paused and then asked his lawyer what something in the agreement meant. The lawyer whispered to him, “Don’t worry, we’ll fix it later on.” Happy with that answer, the guy told the judge he was “good” and was whisked away to serve his prison sentence.

Why is this disturbing? Because if the guy’s lawyer doesn’t fix whatever the problem was that made him hesitate before pleading guilty, he faces a rough road to undo that guilty plea. And he likely won’t succeed because he said — on the record in open court — that he…

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Michigan Supreme Court Finds Wrongful Interpretation of Incest Statute Allowed Withdrawal of Guilty Plea

The court of appeals impermissibly “expanded” the reach of the state`s incest statute, the Michigan Supreme Court held on June 10, 2022, which in effect created a new offense that did not match the elements of the offense charged. As a result, the Court allowed the defendant to withdraw his plea on appeal.

John Moss was 25 and his adopted sister was 17 when she alleged Moss sexually assaulted her. She claimed that the sexual activity was nonconsensual and Moss disagreed, but he pled no contest to third-degree criminal sexual conduct (CSC-III). After he was sentenced, Moss moved to withdraw his plea on the basis that his conduct did not support his conviction. He argued that because he and the victim were not related by blood, as required by the offense charged, his plea was invalid. After a few rounds in the courts on appeal, the State Supreme Court agreed with Moss and allowed him to withdraw his appeal.

Michigan’s Incest Statute

Moss was charged under Michigan`s criminal sexual conduct (CSC) statute, MCL 750.520d, which states:

A person is guilty of criminal sexual conduct in the third degree if the person engages in sexual penetration with another person and if any of the following circumstances exist: … (d) that the other person is related to the actor by blood or affinity to the third degree[.]

The question before the Supreme Court was whether the court of appeals erred in concluding that Moss and his adopted sister were “related by blood” for the purposes of CSC-III, in order to allow a factual basis for his plea. The Court began by noting that the statute`s language was not ambiguous and required a straight-forward interpretation. The Court also said it had previously held, in People v. Zajaczkowski, 825 NW.2d 554 (2012), that a “relation by blood is defined as a relation between persons arising by descent from a common ancestor or relation by birth rather than marriage.” While that was in the context of first-degree CSC, the Court said it also applied to a third-degree offense.

The Court of Appeals Erroneously Applied the Adoption Code to the Incest Statute

Instead of looking at the plain meaning of the CSC-III statute, the court of appeals applied the Adoption Code to determine whether Moss and the victim were related by blood. That law says that an order of adoption renders the adopting parents “under the law as though the adopted person had been born to the adopting parents and are liable for all the duties and entitled to all the rights of the parents.” MCL 710.60. The court of appeals concluded that a “constructive biological relation exists” between Moss and the victim, and the two were “effectively related by blood.”

This was wrong, the Supreme Court said, because the Adoption Code distinguished between relations by blood and by adoption throughout the code. “The Legislature would have no need to use both by blood and adoption in defining `relation` or `related` if MCL 710.60 has the effect the court of appeals concluded it does.”

The Adoption Code can only change the law, the Court said, and “not the genetic makeup of an adopted child or his adoptive parents.” The Adoption Code doesn`t actually make the adopted child a biological child of the adopted parents. “Rather, the statute focuses on the [legal] rights and duties and not the biological makeup.”

In Zajaczkowski, the Court rejected the “civil presumption of legitimacy” that the defendant in that case became the blood relative of the victim by virtue of marriage. Instead, they were step-siblings and not related by blood, the Court said. In this case, the Court similarly rejected that the Adoption Code`s legal protections for adopted children created the presumption that they are related by blood.

The Court of Appeals Created an Impermissible Constructive Crime

An impermissible “constructive crime” is one “built up by the courts with the aid of inference, implication, and strained interpretation.” People v. Olson, 292 NW 860 (1940). “Michigan does not recognize constructive crimes, and we have previously characterized them as repugnant to the spirit and letter of English and American law,” the Court said.

The application of the Adoption Code by the court of appeals to define the meaning of the term “related by blood” in the CSC-III statute created an impermissible constructive crime, the Court said, one that lawmakers did not intend, and one that could not form the basis of Moss`s plea.

In the present case, the Court of Appeals did not find that defendant and the complainant were actually related “by blood.” Rather, it determined that defendant effectively became the biological child of his adoptive mother and that a constructive biological relationship existed between the defendant and the complainant. By doing so, the Court of Appeals enlarged the CDC-III statute and strained its interpretation, impermissibly creating a constructive crime as applied to this defendant and others similarly situated.

IN CONCLUSION, the Court reiterated that a court may not accept a guilty plea unless there is a factual basis for the plea. The factual basis is insufficient if it does not establish grounds for finding that the defendant committed the crime charged. The Court found that Moss did not commit the crime of CSC-III as charged.

Accordingly, the Court reversed the court of appeals judgment and remanded to allow Moss to withdraw his plea. See: People v. Moss, No. 162208 (Mich. S. Ct. June 10, 2022).

Note: The Court again mentioned the “valid policy concerns” in excluding adopted siblings from the incest statute, but said it`s up to the Legislature to fix the problem. “It is this Court`s duty to enforce the clear statutory language that the Legislature has chosen,” not change it. The Court said the same thing when it sided with the defendant in Zajaczkowski.

 

Attacking the Guilty Plea: Court Threatens More Time in Child Porn Case if Post-Conviction Motion Successful

I`m always asked whether the court can impose a harsher sentence if someone is successful in vacating their conviction or sentence under 28 U.S.C. sec 2255. My answer is always the same: It depends, but it can happen.

Usually, a sec 2255 motion attacking a guilty plea opens the door for any charges that were dropped as part of the plea deal to come back into play, should the motion be successful. That`s because vacating the guilty plea puts someone back in the same position as if they were just charged. This also exposes the person to more charges, should the government feel so inclined to pile on the incentives to plead guilty again.

And while a sec 2255 motion successfully attacking only the sentence doesn`t usually create any risk of a harsher sentence, it can happen if the sentence that`s vacated was part of the plea deal. The judge might then undo the plea deal and open the door for a higher sentence. This is a bit rarer, however.

Judge Sarah Evans Barker of the U.S. Dist. Court for the Southern Dist. of Indiana was kind enough recently to provide a warning to someone filing a sec 2255 motion, saying that if he followed through and is successful then he would likely face more time in prison.

In Jansen v. United States, 2022 U.S. Dist. LEXIS 49499 (S.D. Ind. Mar. 18, 2022), Mr. Jansen filed a sec 2255 motion attacking his guilty plea for distributing child pornography. He was originally sentenced to 15 years in prison back in 2009, but the court granted compassionate release during the peak of the COVID-19 wave overwhelming the federal prisons, and he got to go home. The judge made clear that he`d head back to prison if his sec 2255 motion was granted:


At this stage, the benefits of Mr. Jansen`s guilty plea are profound. his prison sentence has been reduced to time served, and he faces only supervised release moving forward. If the court dismisses Mr. Jansen`s sec 2255 petition, he will face no further penalties for the conduct charged in this criminal action.

On the other hand, if the court grants Mr. Jansen`s motion and vacates his guilty plea, he will face six outstanding child pornography charges. Moreover, there is no statute of limitations for child pornography offenses, so he may face additional liability for any conduct that was not originally charged. Perhaps he could achieve dismissal of the charges or win acquittal. But he could also be convicted and face a sentence that includes prison time.

Judge Barker generously gave Mr. Jansen a choice to withdraw his sec 2255 motion and avoid the unfortunate chance he`d win and wind up back in prison. Most judges are not so nice.

Always know your risks when filing for post-conviction relief in court!

 

Federal Habeas Corpus: Obtaining Habeas Relief After a Guilty Plea

It`s long been said that a valid guilty plea goes a long way in barring post-conviction relief in the courts. While that can be true for challenges to the guilty plea itself, it`s often not true for challenges to a sentence resulting from that guilty plea. After navigating the procedural hurdles for these claims, federal habeas corpus relief has routinely been granted to petitioners challenging illegal sentences, even those with binding plea agreements.

Assuming you`re familiar with my numerous writings on how to file successful federal habeas claims, let`s take a closer look at this “guilty plea bar” to federal habeas relief.

A Guilty Plea Doesn`t Automatically Bar Federal Habeas Relief

When it comes to challenging a sentence that`s been upended because of a subsequent court decision, a guilty plea can be an obstacle to habeas relief in federal court. The basis for this stems from Supreme Court decisions that have set out to legitimize guilty pleas when plea bargaining became an accepted form of resolving a criminal case.

For example, when a federal prisoner challenged his guilty plea after the Supreme Court later declared the death penalty unconstitutional for his offense, the Court said that his guilty plea to avoid facing death wasn`t rendered invalid simply because of the Court`s later decision:

A voluntary plea of guilty intelligently made in light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise. Brady v. United States, 397 U.S. 742 (1970)

Some courts have relied on Brady to reject habeas challenges to sentences invalidated by later Supreme Court decisions. See, e.g., Davila v. United States, 845 F.3d 729 (7th Cir. 2016). But most courts say that a collateral attack on a sentence is not the same as an attack on a conviction. See United States v. Rush, 910 F. Supp. 2d 286 (D.D.C. 2012) (“in the sentencing context, the petitioner`s burden of establishing prejudice is somewhat lighter” than with a re-trial).

In the wake of recent Supreme Court decisions invalidating the “residual clause” in several federal criminal statutes as unconstitutional, federal courts have granted relief in scores of post-conviction cases attacking the sentence, despite these sentences being the result of a knowing and voluntary guilty plea. See United States v. Sumner, 2022 U.S. Dist. LEXIS 58700 (D.D.C. Mar. 30, 2022) (collecting cases). Over 25,000 habeas petition were filed in the federal courts in 2016, nearly half based on just one of these Supreme Court decisions declaring the residual clause unconstitutional. With at least 95% of convictions by way of a guilty plea, it`s clear that a guilty plea doesn`t bar federal habeas relief for an illegal sentence.

Even the Threat of an Illegal Sentence Opens the Door for Relief

What if someone pleads guilty and agrees to a lighter sentence, in order to avoid a threatened harsher penalty if they don`t, and then that threatened punishment winds up being illegal or even non-existent?

In the Sumner case noted above, Mr. Sumner had agreed to a statutory maximum sentence of 25 years in order to avoid a mandatory life sentence in federal prison. He had at least two qualifying prior convictions and his federal bank robbery was a “third strike” under 18 U.S.C. sec 3559(c), which required a life sentence in prison.

But his prior Pennsylvania robberies only qualified under the residual clause of sec 3559. When the Supreme Court struck down the residual clause, this made Mr. Sumner`s agreed-upon sentence to avoid life in prison open to challenge. Citing numerous other cases that granted relief to petitioners who took plea deals due to threats of punishment later invalidated by the Supreme Court, the district court granted relief and vacated Mr. Sumner`s 25-year sentence.

A Binding Plea Agreement Does Not Bar Habeas Relief

Mr. Sumner`s plea agreement was binding on the court, under Federal Rule of Criminal Procedure 11(c)(1)(C), which meant that the court had to impose the 25-year sentence if it accepted the plea agreement. But the question was whether this binding agreement required Mr. Sumner to serve what would become an illegal sentence.The court said it didn`t since it was the product of a threat of an unconstitutional punishment. This was true even though the plea agreement stipulated that Mr. Sumner was also “designated” as a career offender, requiring a higher sentence.

In United States v. Wolf, 2017 U.S. Dist. LEXIS 35969 (M.D. Pa. Feb. 24, 2017), the court addressed a similar dilemma: “We will not uphold Defendant`s now-unconstitutional sentence in light of his plea agreement, as doing so would result in a miscarriage of justice by sustaining what has proven to be an unlawful application of the [punishment].”

Besides the threat of an unconstitutional punishment that induced Mr. Sumner to take the 25-year deal, the court noted that his sentencing range without the mandatory career offender penalty (because it, too, was impacted by removal of the residual clause) was only 19 to 21 years. The fear of both the sec 2559 life sentence and the career offender designation caused him to agree to the 25-year sentence, the court said, and his challenge was not barred by the binding plea agreement.

Procedural Bars to Habeas Relief Still Apply

Even if your sentence clearly becomes illegal because of a subsequent Supreme Court decision or change in the law, the courts say that the procedural default rule still applies. This rule, best explained in Bousley v. United States, 523 U.S. 614 (1998), says that any claims for habeas relief that could`ve been raised on appeal but weren`t are barred from relief, unless you can show (1) cause for your failure to raise them earlier and prejudice if the error remains, or (2)actual innocence of the offense.

Be aware of the “IAC trap” with habeas claims relying on new, retroactive Supreme Court decisions. While ineffective assistance of counsel (IAC) is the most common way to get around procedural default in a habeas case, See Massaro v. United States, 538 U.S. 500 (2003), counsel is not ineffective for failing to predict what the Supreme Court might do in a future case. See, e.g., Cooks v. United States, 2015 U.S. Dist. LEXIS 153968 (S.D. Ga. Nov. 13, 2015).

Instead, the “novelty” exception would avoid procedural default with a new Supreme Court decision. This method requires a Supreme Court decision that (1) overrules a prior Supreme Court decision, (2) overrules a “longstanding and widespread practice” by the lower courts, or (3) disapproves of a practice the Supreme Court itself once supported. In other words, it creates a new path that no one could have predicted.

Showing novelty is only part of the process, though. You`ll also have to show prejudice, or that there is a reasonable probability the result of the proceeding would have been different but for the error.

Going back to the Sumner case, novelty avoided procedural default to allow the claims to move forward. The court found that, until the Supreme Court`s retroactive decision declaring the residual clause unconstitutional, he “did not have a reasonable basis upon which to challenge the constitutionality of [the] residual clause.”

As for showing prejudice, the court found that the lower sentence Mr. Sumner would have faced without the residual clause qualifying his priors for the life sentence or the career offender penalty resulted in a reasonable probability of a different outcome.

Appeal Waivers Can Be Ignored to Challenge an Illegal Sentence

Every plea agreement involves some kind of waiver of the right to challenge the conviction and/or sentence, and courts routinely uphold these waivers if they`re knowing and voluntary (just like with a guilty plea). But any error that affects the validity of the plea agreement itself voids the waiver.

Some courts are rather liberal with whether an error affects a waiver. In United States v. Suttle, 2016 U.S. Dist. LEXIS 79964 (E.D. Wash. June 20, 2016), the court found that a challenge to a sentence after a subsequent Supreme Court decision declared the sentence unconstitutional was not barred by a waiver. “Defendant`s sentence is unconstitutional because the [erroneous sentence] affected every aspect of the proceedings beginning with the charging decision to the ultimate sentence pronounced by the court, and therefore, the waiver is not enforceable.”

But not every court takes such a broad view of an illegal sentence impacting “every aspect” of a case to void a waiver. In United States v. Barnes, 953 F.3d 383 (5th Cir. 2020), the conservative Fifth Circuit flatly refused to undo the post-conviction waiver in that case to allow a challenge to a sentence subsequently deemed illegal, saying the petitioner “assumed the risk that he would be denied the benefit of future legal developments.”

IN CONCLUSION, a guilty plea does not automatically bar habeas relief when an unforeseen error comes up later on. Sure, there are some procedural hurdles, as usual in federal habeas corpus, but they are not absolute roadblocks to relief.

Dale Chappell has hundreds of published articles on federal habeas corpus and is the author of the Insider`s Guide series of post-conviction books. Follow his blog at www.zenlawguy.com and on Twitter: @zenlawguy.

Attacking the Guilty Plea: Getting More Time After a Successful Guilty Plea Challenge

What happens if you win your challenge and overturn your guilty plea and then lose at trial? Can the court give you more time in prison as a penalty for successfully challenging your guilty plea? Yes, but there`s more to the story.

The Supreme Court held in North Carolina v. Pearce, 395 U.S. 711 (1969), that a longer sentence as a “penalty” upon reconviction after a successful appeal was unconstitutional. But that case was not about a successful challenge to a guilty plea. There is a difference.

In a case where a defendant did successfully challenge his guilty plea and then lost at trial and got more time, the Court distinguished its decision in Pearce, saying that loss at trial after a guilty plea is successfully overturned is not the same as a retrial. In Alabama v. Smith, 490 U.S. 794 (1989), the defendant was originally sentenced to 30 years in prison after a guilty plea. But after he overturned that guilty plea on appeal and went to trial, he lost. This time the judge said he was “too lenient” the first time and handed him 150 years in prison.

Was this unfair? The Supreme Court said it was perfectly fine, and here`s why.

The Court reasoned that a guilty plea is usually a quick court proceeding. There`s no evidence entered, usually, and the court`s duty is mainly to ensure the guilty plea is valid. That`s the whole point of a guilty plea: to ease the burden on the court and the prosecutor by the defendant admitting that he committed the crime as charged.

But in a trial all the evidence gets brought before the court. People testify, the defendant`s motives get exposed. In short, the court sees much more bad stuff about the defendant than it ever would during a guilty plea. And those facts play a part in sentencing the defendant. Judges are allowed to weigh numerous factors at sentencing, even conduct that wasn`t charged or that was part of any charges that the defendant was not found guilty of committing. Sure it seems unfair, but it`s the way it works. It`s part of the dangers of going to trial, and why so many defendants plead guilty — even if they aren`t guilty of the crimes charged.

Even if the same facts were before the court as the original sentencing but a harsher sentence was handed down the second time, it`s not considered “vindictive” if the new sentencer (a new judge or jury) imposes the harsher sentence. In United States v. Rodriguez, 602 F.3d 346 (5th Cir. 2010), it was the jury that handed out a harsher sentence after a successful challenge to a guilty and subsequent loss at trial. The court said that the jury didn`t know about the more lenient sentence given the first time around so there could not have been any vindictive motive in handing out the longer sentence the second time.

In conclusion, to answer the question of whether someone can get more time if they successfully challenge their guilty plea, the answer is a big “yes.” But maybe not if there`s another guilty plea to the same charge before the same judge. Going to trial will most likely expose someone to more time, however.

 

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