Criminal Appeal

Ninth Circuit Vacates Plea Because of Inadequate Advice on Mandatory Fine

U.S. v. Adams, no. 04-30339 (9th Cir. 1/3/06)

Majority (Judges Alarcón (author) and Kozinski): "We vacate Mr. Adams’s guilty plea and conviction because we conclude that it was not knowing, voluntary and intelligent in light of the district court’s failure to inform him that he was subject to a mandatory fine under the Sentencing Guidelines." The majority emphasized that the defendant's knowledge of the maximum possible fine did not do the trick as he was not advised of the minimum mandatory fine.

Judge Kleinfeld dissented, noting that the result was contrary to that reached in nine other circuits. He found some solace in the fact that "the practical significance of the majority’s holding should gradually dissipate as pre-Booker[fn omitted] sentences complete their passage through appellate and post-conviction review." As to the merits, Judge Kleinfeld contended there was no duty to advise the defendant on the fine because the fine was not mandatory. First, the guidelines, even before Booker, were not truly mandatory because departures were possible. Second, the fines are not mandatory because they are subject to an ability-to-pay inquiry.

Remand for Evidentiary Hearing on Whether Trial Counsel Was Ineffective in Letting Defendant Plea Guilty While Under Influence of Pain Killers. U.S. v. Howard, no. 02-16228 (9th Cir., Aug. 25, 2004).

Note: Judge Kleinfeld dissented on the basis that the petitioner failed to allege that but for the painkillers he would not have pleaded guilty.

Panel: D.W. Nelson, Kleinfeld (dissenting) and Fisher (author)

District Court May Not Vacate Guilty Plea Against Wishes of Defendant. U.S. v. Patterson, no. 00-30306 (9th Cir., Aug. 20, 2004).

In In re Ellis, no. 01-70724, an en banc panel of the Ninth Circuit held today that a district judge may not, after rejecting a plea agreement made pursuant to Rule 11(e)(1)(A) and (C), vacate a guilty plea against the wishes of the defendant. If the district court rejects the plea agreement, it is the defendant's decision whether to proceed pursuant to the guilty plea (without the protection of the plea agreement) or withdraw the guilty plea. In light of Ellis, the panel in this case granted rehearing and, in this published opinion, held that the district court erred in vacating the defendant's guilty plea. (Read my post on Ellis here.)

Judge Tallman concurred because he was bound by Ellis, but wrote "because of the unfortunate result our precedents dictate in this recidivist case."

Panel: Noonan, Tashima (author), and Tallman (concurrence)

When, immediately after a jury verdict of guilty, a defendant admits a prior conviction after being advised of and waiving only the right to trial, that admission can be voluntary and intelligent even though the defendant was not told of, and did not expressly waive, the rights to remain silent and to confront adverse witnesses. People v. Mosby, no. S104862 (Cal.Supreme Court, July 8, 2004) (Author: Justice Kennard (unanimous)).

In the case before it, the court found that the totality of the circumstances showed that the defendant knowingly waived his rights to confront witnesses and to remain silent because, when he waived his right to a jury trial on the priors, he had just sat through a trial in which he did not testify and in which his counsel confronted witnesses on his behalf.

Cal. Supremes to Review Scope of Guilty Plea Appeal CPC Requirement. People v. Shelton, S124503.
According to the court's weekly summary, "This case presents the following issues: (1) Was defendant required to obtain a certificate of probable cause (Pen. Code, § 1237.5; Cal. Rules of Court, rule 31) in order to claim on appeal that the manner of calculating the maximum sentence he agreed to in a plea agreement violated Penal Code section 654? (2) Was defendant’s post-plea claim that a portion of the sentence to which he had agreed was unauthorized barred as an impermissible challenge to the plea itself?"

My post: here; court of appeal opinion: here.

In the Court of Appeal, Deborah Prucha of the Central California Appellate Program represented the defendant-appellant and Deputy A.G. Maggy Krell represented the state.

Upon Plain Error Review of District Court's Failure to Give Rule 11 Warning, Defendant Must Show Reasonable Probability That, But for the Error, He Would Not Have Pleaded Guilty. U.S. v. Benitez, no. 03-167 (U.S. Supreme Court, June 14, 2004).

"The judicial change of "hats" in this case is head spinning." That's how the Court of Appeal, in People v. Weaver, no. D039114 (Cal.Ct.App. (4th Dist., Div 1) Apr. 29, 2004), described the trial judge's role in plea negotiations in this child molestation case. Noting that, unlike other jurisdictions, there is no firm rule against judicial participation in plea negotiations, the court of appeal nevertheless found that the trial court overcame the defendant's free judgment in the plea process, effectively coercing the guilty plea:

The judge not only concluded and expressed that appellant, save for some irrationality on the part of the jury, would be convicted, he also concluded the crimes were the result of a particular and dangerous mental disorder. The judge's histrionic monologues were not the stuff of mediation or facilitation. They were the stuff of advocacy. His understandable and often expressed concern that the victims not be victimized again could reasonably be taken by appellant and others viewing the proceeding as a comment that the judge would not look favorably on those who would, to no end, harm the children the defendant already harmed. The level and manner of the judge's interest and involvement in the negotiation process, particularly that of record and in appellant's presence, colored every aspect of the proceeding.

The court of appeal reversed, finding that the trial court erred in denying the motion to withdraw the guilty plea.

Agreement to a "Lid" or "Maximum Sentence" Does Not Bar Section 654 Argument on Appeal.
Case: People v. Shelton, no. C044625 (Cal.Ct.App. 3d Dist., Mar. 26, 2004) (Partial publication).
Proceeding: Sentencing appeal following guilty plea.

Holding: Where a defendant pleads guilty and agrees to a specified term and where the defendant is sentenced to that specified term, Rule 4.412(b) of the Cal. Rules of Ct. bars the defendant from arguing on appeal that the sentence violates Penal Code section 654, which bars dual punishment for the same act. Rule 4.412(b), however, does not apply where the defendant merely agrees to a "lid" or a "top", reserving the right to argue for a lesser term at sentencing.

Authoring Justice: Associate Justice Fred K. Morrison

Dissent: Associate Justice Vance W. Raye, accepting the majority's holding that Rule 4.412(b) does not apply, would nevertheless apply "the long-standing rule that defendants are estopped from complaining of sentences to which they agreed” to hold that the defendant was estopped from challenging the sentence on section 654 grounds.

Court Limits Admonitions Required for Pro Se Defendant Pleading Guilty. In yesterday's unanimous opinion authored by Justice Ginsburg in Iowa v. Tovar, no. 02–1541, the U.S. Supreme Court held that when a pro se criminal defendant pleads guilty, the Sixth Amendment "is satisfied when the trial court informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea."

The court rejected the Iowa Supreme Court's holding that the Sixth Amendment also required that the plea-taking court "(1) advise the defendant that 'waiving the assistance of counsel in deciding whether to plead guilty [entails] the risk that a viable defense will be overlooked'; and (2) 'admonis[h]' the defendant 'that by waiving his right to an attorney he will lose the opportunity to obtain an independent opinion on whether, under the facts and applicable law, it is wise to plead guilty'?"

UPDATE: Per comment from Peter G., I have corrected poor word choice in the title of this post. To answer Peter's question, Justice Ginsburg did not use the word "Admonishment," although that word does appear in the opinion in a quotation from the cert. petition.

Cal. Supreme Court: Lessons on How to Take a Factual Basis for a Guilty Plea

In People v. Holmes, no. S102965, the California Supreme Court, today, rejected a criminal appellant's claim that there was an inadequate factual basis for his guilty plea. In doing so, the Court "provide[d] guidelines for the trial courts regarding how to comply with their obligations under [Penal Code] section 1192.5 and what constitutes a 'factual basis for the plea.'"

We conclude that section 1192.5 requires that a trial court must garner information regarding the factual basis either from defendant or his counsel. If the trial court inquires of the defendant regarding the factual basis, the judge may develop the factual basis for the plea on the record through her own examination by having the defendant describe the conduct that gave rise to the charge, or question defendant regarding the detailed factual basis described in the complaint or written plea agreement. If the trial court inquires of defense counsel regarding the factual basis, it should request that defense counsel stipulate to a particular document that provides an adequate factual basis, such as a complaint, police report, preliminary hearing transcript, probation report, grand jury transcript, or written plea agreement.

Justice Carlos R. Moreno authored the opinion for a unanimous court.

Cal.Ct.App. (6th Dist.): Stipulation Not Made Knowingly and Voluntarily

Yesterday, in People v. Little, no. H024757, the California Court of Appeal (6th App. Dist.) held that the stipulation, presented to the jury, that the defendant was under the influence of methampnetamine was tantamount to a guilty plea. Because the proper warnings were not given and waivers not taken, the stipulation was not made knowingly and voluntarily. This error was not harmless and the Court reversed the defendant's misdemeanor conviction for being under the influence.

9th Cir.: District Court May Not Override Defendant's Decision to Persist in Guilty Plea Upon Rejection of Plea Agreement

In In re Ellis, no. 01-70724, an en banc panel of the Ninth Circuit held today that a district judge may not, after rejecting a plea agreement made pursuant to Rule 11(e)(1)(A) and (C), vacate a guilty plea against the wishes of the defendant. If the district court rejects the plea agreement, it is the defendant's decision whether to proceed pursuant to the guilty plea (without the protection of the plea agreement) or withdraw the guilty plea. The Court, concerned that the district judge might preside over a trial after having read the presentence report, also made the unusual decision to remand the case to a different district judge. Judge Kim McLane Wardlaw authored the majority opinion.

Judge Kozinski's concurrence may contain a legal error. In dispelling the dissent's concerns about an injustice resulting from the defendant being allowed to proceed with a guilty plea to the lesser charge, Judge Kozinski noted that the district court's sentencing options included the possibility of an upward departure and, possibly, a life term if the defendant persisted with the guilty plea without a plea agreement:

If the district judge were to find that defendant acted with premeditation and deliberation, that would easily take the case out of the heartland of second-degree murder cases. In such circumstances, the Supreme Court has instructed that we must defer to departures by district judges, Koon v. United States, 518 U.S. 81, 98 (1996); if the judge here chose to give a life sentence as an exercise of his sentencing discretion, he would most likely be upheld. Thus, the only practical effect of the charge bargain is that defendant is spared the often harsh effects of a mandatory minimum life sentence for a crime he committed as a teenager.

Slip op. at 1515-16. If I'm not mistaken, the PROTECT Act, in part, now requires de novo review of upward departures. 18 U.S.C. § 3742(e) (April 30, 2003); United States v. Alfaro, 336 F.3d 876 (2003); U.S. v. Philips, no. 02-30035 (9th Cir., filed 1/28/04). Anyone got any thoughts on this?

Of course, all of this is very nostalgic for me, having been counsel for the defendant-appellant in United States v. Hyde, 520 U.S. 670 (1997), a case central to the decision in Ellis.