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…
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- Appellate Jurisdiction, Appellate Procedure, Criminal Procedure, Federal Procedure, Plea Bargains, Sentencing, Waiver of Issues
Waiver of Appeal Rights in Plea Agreements
Plea agreements often waive the right to appeal, but they aren’t always what they seem, especially when it comes to how they define the scope of the waiver. For a lesson in how to determine whether a defendant has waived the right to bring a particular appeal, check out United States v. Cope, case no. 06-50441 (9th Cir. June 4, 2008). Cope pled guilty to a single count of possession of child pornography and was sentenced to 120 months imprisonment and lifetime supervised release. His plea agreement stated that he waived appeal of his sentence so long as it met three criteria. On appeal, he challenged the length of his…
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Summary Rejection of Plea Agreement is Error
It’s not often that you see an opinion on a writ petition start with a statement that the trial court erred but the writ is denied. The reason for that sort of introduction in Morgan v. U.S. District Court (D.Ariz.), case no. 07-70201 (9th Cir. Oct. 9, 2007), is because the petitioner sought just a little more relief than he was entitled to. Morgan accepted a plea agreement that included a sentencing term pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). So far, so good. The stipulated sentence was near the upper limit of the guidelines but the district court opined that an upward departure may be appropriate. This led…