When a plea agreement includes a waiver of rights to appeal, claim ineffective assistance of counsel, and to move to withdraw the plea, can it logically be enforced to preclude a claim of ineffective assistance of counsel in the advice to enter into the agreement? Last week, in People v. Orozco, case no. F056712, (5th Dist. Ja. 8, 2010), the court of appeal joins several federal courts in reaching the only sensible answer: of course not.
To hold such a waiver enforceable “would deprive a defendant of the ‘opportunity to assert his Sixth Amendment right to counsel where he had accepted the waiver in reliance on delinquent representation.’ ” [Citation.]
We agree with the federal authorities and find justice dictates that a claim of ineffective assistance of counsel in connection with the making of the waiver agreement cannot be barred by the agreement that is the product of the alleged ineffectiveness.
Confusion abounds lately. On the heels of my last post about a “hopelessly ambiguous” jury verdict comes a decision requiring reversal because the proceedings left the parties and trial court so “throughly confused” that the defendant was deprived of his right to counsel: People v. Earp, case no. B201309 (2d Dist. Mar 11, 2008).
The trouble began when Earp tried to withdraw his no contest plea to possession of methamphetamine for sale. The trouble requiring reversal, that is. The real trouble started while Earp was released pending sentencing. He violated three conditions of his probation (from another offense) and then failed to appear for sentencing. He was arrested and convicted of another drug offense in a neighboring county, then finally appeared for sentencing on his meth charge, where he announced he wanted to withdraw his plea.
The court’s recitation of the dialogue at the sentencing would be comical if it didn’t concern such a serious issue. The court couldn’t get a straight answer out of the defendant regarding the basis for withdrawal, the defendant’s new deputy pubic defender kept going back and forth on whether she intended to file a motion to withdraw the plea and whether she had a conflict, the trial court appointed the alternate public defender because it found a conflict, then resumed the hearing without the alternate public defender present, heard the relieved deputy public defender on behalf of the defendant, then vacated its order appointing the alternate public defender.
As one sign of the confusion this created, consider the attorney general’s motion to dismiss the appeal on the ground that appeal from an order denying a motion to withdraw a plea requires a certificate of probable cause, which the defendant had not obtained. The motion is denied because the appeal is not from an order denying a motion to withdraw the plea; it is based on being deprived of effective assistance of counsel , which prevented the defendant’s motion from even being made. If there’ s disagreement over whether a motion was even made, that is definitely a thoroughly confusing state of affairs.
The court reverses, agreeing that the post-plea events deprived Earp of his right to counsel. The court erred by hearing the deputy public defender on defendant’s behalf after the court had already relieved her and appointed alternate counsel, and in proceeding after making that appointment without the newly appointed counsel present.