“I took a plea. Can I appeal? Can I file for ineffective assistance of counsel?”
- Mar 2
- 3 min read
In 2012, the Supreme Court noted that ninety-seven percent (97%) of federal cases and ninety-four percent (94%) of state cases are the result of guilty pleas. [1] Since then, not much has changed. The number of cases being resolved via plea is still extremely high. [2]
I hear questions about what can be done after a loved one enters a plea -
“Can I appeal?”
“My lawyer was ineffective in telling me to enter a plea. Can I file for ineffective counsel?”
Like many answers in the law, the answer is “It depends.”
For federal prisoners, a common feature of a plea agreement is an appeal waiver. Appeal waivers are essentially contracts. [3] The language of appeal waivers varies and generally an appeal waiver does not bar claims that are outside the scope of its terms. [4] If the government breached the plea agreement at sentencing, an appeal waiver does not foreclose relief. [5] In the Eighth Circuit (which is over Minnesota), if a defendant appeals following a plea, the appellate court will review issues such as whether the appeal falls within the scope of the waiver, whether the defendant knowingly and voluntarily entered into the plea agreement and waiver, and whether enforcing the waiver would result in a miscarriage of justice. [6] However, the Eleventh Circuit (which is over Alabama, Georgia, and Florida) does not have a miscarriage of justice exception. [7] Appeal waivers do not bar claims based on lack of jurisdiction, a sentence based on constitutionally impermissible factors, or a sentence in excess of the maximum penalty. [8]
Stated simply, for federal prisoners who signed an appeal waiver, your ability to appeal depends on what rights you signed away in the waiver. The answer then goes on a case-by-case basis.
In Alabama, a defendant can waive the right to appeal as part of a negotiated plea agreement as long as he or she is fully advised of all conditions of the agreement and voluntarily enters into the agreement. [9] However, such a waiver does not waive challenges to the voluntariness of the plea or claims of ineffective assistance of counsel. [10] Appealing the voluntariness of a plea requires filing a motion to withdraw plea or motion for new trial. [11] Considering that ineffective assistance of counsel cannot be waived, a timely claim of ineffective assistance of counsel through a Rule 32 petition can be made following a plea. [12]
In Minnesota, where I practice through my affiliation with Subzero Expungements, Pardons & Appeals, [13] a voluntary, informed guilty plea generally waives many issues; however, a defendant may preserve pretrial rulings on dispositive (meaning the success or failure of the prosecution’s case) issues for purposes of appeal. [14]
Ineffective assistance of counsel claims are primarily brought after the direct appeal on a postconviction petition. Take heed: postconviction petitions are subject to tight timeframes. In federal court and Alabama, the time is one (1) year. In Minnesota, the time is two (2) years. It is possible to waive the right to seek postconviction relief, but such waivers typically happen in federal court and have jurisdiction-specific limitations and exceptions.
The bottom line is this: Yes, if you entered a plea, you will likely be able to do something about it. This is a complicated determination. If you or someone you love wants to do something about their sentence from a plea, contact Peter Armstrong, Attorney at Law, for a free consultation.
References:
1. Missouri v. Frye, 566 U.S. 134, 143 (2012). (https://supreme.justia.com/cases/federal/us/566/134/)
2. For example, consider Carrie Johnson’s article, The vast majority of criminal cases end in plea bargains, a new report finds, from February 22, 2023, available at https://www.npr.org/2023/02/22/1158356619/plea-bargains-criminal-cases-justice.
3. Garza v. Idaho, 586 U.S. 232, 238-39 (2019). (https://supreme.justia.com/cases/federal/us/586/17-1026/)
4. Id.
5. U.S. v. Hutto, 853 Fed. Appx. 445, 449 (11th Cir. 2021).
6. U.S. v. Andis, 333 F.3d 886, 889-90 (8th Cir. 2003) (en banc). (https://www.casemine.com/judgement/us/59147929add7b049343f2a53)
7. King v. U.S., 41 F.4th 1363, 1368 n.3 (11th Cir. 2022). (https://case-law.vlex.com/vid/king-v-united-states-914818908)
8. Id. at 1367 (citing U.S. v. Bushert, 997 F.2d 1343, 1351 (11th Cir. 1993)). (https://law.justia.com/cases/federal/appellate-courts/F2/997/1343/382239/)
9. Love v. State, 365 So. 3d 344, 346-47 (Ala. Crim. App. 2022). (https://www.casemine.com/judgement/us/623079c7714d589d184921a6)
10. Id.
11. Watson v. State, 808 So. 2d 77, 81 (Ala. Crim. App. 2001). (https://www.casemine.com/judgement/us/59147c7badd7b0493442f977)
12. Whitehead v. State, 955 So. 2d 448, 457-58 (Ala. Crim. App. 2006) (quoting Boglin v. State, 840 So. 2d 926, 928-31 (Ala. Crim. App. 2002)). (https://www.casemine.com/judgement/us/5914b4c4add7b0493476e539)
14. State v. Galvan-Contreras, 980 N.W.2d 578, 586 (Minn. 2022). (https://www.casemine.com/judgement/us/6348e62df11e0e1fa4b53462)
