Prospective clients called me recently asking about appealing their criminal conviction.
Their sentence had resulted from a plea bargain or a guilty plea and waiver without a punishment recommendation from the prosecutor.
A plea bargain accepted by the trial court judge waives most of a person's rights to appeal.
However, there are a few important issues with which potential clients should be aware.
First, a defendant's waiver of rights and plea of guilty must be voluntary.
In other words, the defendant's plea must be made knowingly and intelligently.
Also, the judge must make his finding on the record.
However, if a defendant received ineffective assistance of counsel leading to their decision to plead guilty and waive their rights, an involuntary plea argument can be fashioned.
Specifically, the person's plea and waiver can be withdrawn and they can start from square "one" defending the charges against them.
There are many ways a criminal defense lawyer might provide ineffective assistance of counsel leading to an involuntary plea.
Here are few to consider.
The failure to investigate is a good basis for ineffective assistance claims.
Simply, if the criminal trial lawyer failed to uncover facts about the case that, (had the facts been known by the client), would have created a "substantial likelihood" the client would not have waived his rights but insisted upon a trial.
This can cause an involuntary plea.
Additionally, the failure to locate an alibi witness is another example.
The failure to discover a prior conviction, being used to enhance punishment is another example of failing to investigate.
Another instance of ineffective assistance is when the criminal lawyer provides their client incorrect advice on the law applicable to the case.
When that erroneous advice leads the person to plead guilty and waive their rights, that is also ineffective assistance of counsel.
One example might be where the client is charged with multiple counts of sexual assault upon a child.
The defense lawyer tells their client "if you plead guilty and ask the court to assess punishment the sentences cannot be stacked, but can only run concurrently.
" (in Texas, this is incorrect advice) The client pleads guilty, waives their rights, and the judge guts the client with stacked prison sentences.
In short, the client's guilty plea was based on the erroneous advice of his lawyer.
Had the lawyer offered accurate advice the client would have insisted upon a contested trial.
That's an involuntary plea.
Another common example of ineffective assistance of counsel is when the criminal defense attorney fails to communicate a plea bargain offer made by the prosecutor.
Had the client been informed of the plea offer they would have accepted it.
Although this is not an "involuntary plea" situation, it is another way to reverse a bad result for the client based on ineffective assistance of counsel.
Reversing a guilty plea and waiver is tough and technical legal work for Texas defense lawyers.
Many times, if not most, the attempt is unsuccessful because of the great bias contained within the law toward the finality of convictions.
However, a good Bryan criminal defense lawyer, experienced in appeals, can sometimes work the miracle a client needs for another bite at the apple.
Note that critical time limits apply! Contact an experienced criminal appeal attorney immediately to discuss your case.