SCOTUS Update: Garza v. Idaho
On October 30, 2018, the Supreme Court of the United States heard oral argument in Garza v. Idaho. In this case, the petitioner, Gilberto Garza, Jr., is an Idaho inmate who pled guilty to aggravated assault and possession of a controlled substance pursuant to two plea agreements in 2015. The plea agreements included a waiver of his right to appeal. At the sentence hearing, “the court acknowledged the appeal waiver, but also told Garza about his right to appeal and have a lawyer if he appealed.” Almost four months after pleading guilty, Garza filed petitions for post-conviction relief asserting that his trial attorney was ineffective based on his failure to file notices of appeal for both convictions.
A notice of appeal marks the beginning of the appeals process. After filing a notice of appeal, the appealing party, must file with the court a brief containing his arguments supporting the relief requested from the court. Failure to file a notice of appeal within the statutorily specified time period results in a party's loss of the right to appeal. Garza’s trial attorney filed with the court an affidavit stating that he did not file an appeal because Garza “received the sentence(s) he bargained for in his [plea] agreement” and that “an appeal was problematic because [Garza] waived his right to appeal” in the plea agreements.
The Ada County, Idaho District Court dismissed Garza’s post-conviction relief petitions. The Idaho Court of Appeals and the Idaho Supreme Court both affirmed the District Court’s order. The Supreme Court of the United States granted writ of certiorari on the question of “[w]hether the ‘presumption of prejudice’ recognized in Roe v. Flores-Ortega applies when a criminal defendant instructs his trial counsel to file a notice of appeal but trial counsel decides not to do so because the defendant’s plea agreement included an appeal waiver.”
Under Strickland v. Washington, to demonstrate ineffective assistance of counsel, the defendant must show both “‘that counsel’s performance was deficient,’ to the point counsel was ‘not functioning as the counsel guaranteed…by the Sixth Amendment,’ and that the deficient performance prejudiced the defense.’” The counsel’s performance is measured by an “objective unreasonableness standard.”
In Roe v. Flores-Ortega, the Supreme Court rejected a bright-line rule that would require defendant’s counsel to consult with his or her client about an appeal. In Flores-Ortega, the defendant pled guilty to second-degree murder, his defense attorney did not timely file a notice of appeal, and the defendant did not specifically request an appeal. The trial judge had informed the defendant of his right to file an appeal within a sixty-day window following his guilty plea. The defendant’s later attempt to file an appeal himself was rejected. The defendant claimed ineffective assistance of counsel. The Supreme Court rejected the appeal holding that a defendant claiming ineffective assistance of counsel must satisfy two requirements in order to be successful. First, the defendant must show that the counsel’s representation was deficient. Second, the defendant must show that the counsel’s deficient performance prejudiced the defendant.
In the petition he filed with the Supreme Court, Garza seeks reinstatement of his right to appeal his sentences. He argues that he had an ineffective counsel because his public defender ignored his request to file an appeal on the basis of the appeal waiver in his plea agreements. Garza argues that Flores-Ortega applies under these circumstances. Garza further contends that requiring him to prove prejudice in the presence of an appeal waiver is both impractical and inefficient.
The State of Idaho counters that the Idaho Supreme Court correctly held that counsel does not perform ineffectively and “does not presumptively prejudice” a defendant by declining to abide by the defendant’s request to file an appeal when the issue is “within the scope of a valid appeal waiver.”
The Idaho Supreme Court held that in light of the appeal waiver in Garza’s plea agreements, in order to prove ineffective counsel he must show both “deficient performance and resulting prejudice.”
At oral argument, the justices seemed generally sympathetic to the argument by Garza’s counsel, Amir Ali, that a lawyer may file an appeal for a defendant who previously waived his right to appeal in a plea agreement. Throughout the argument, Garza’s counsel emphasized that “certain fundamental claims survive that appeal waiver.” Additionally, Garza’s counsel asserted that there was a “colorable claim in [the] record that his appeal waiver was involuntary.” Filing a notice of appeal would provide the attorney access to the record, which would then allow the attorney to determine whether there is indeed an issue appropriate for appeal or if the attorney determines that there is not in fact an issue meriting appeal, the attorney would file an Anders brief. Both of these scenarios would provide judicial review of the plea agreement and proceedings. This argument highlights the need for a court to be able to review plea proceedings to assure that the guilty plea was entered knowingly and voluntarily.
Anders briefs allow counsel for criminal defendants and the courts to address the problem of frivolous appeals. Defendants may demand that their attorney file and appeal after their conviction even if the attorney believes that there is not a sufficient legal issue to appeal. This poses a dilemma for an attorney because he owes his client the duty to zealously represent him, but as an officer of the court he also owes the court a duty not to file frivolous appeals. Consequently, Anders advises that in this situation, defense counsel should file a notice of appeal and “a brief referring to anything in the record that might arguably support the appeal, and request permission to withdraw.” This procedure allows a defense attorney to act without conflict and preserve the defendant’s ability to appeal. The defendant then has the opportunity to file a brief with the court to explain to the basis for his appeal.
Another of Garza’s counsel’s main arguments was that that a plea-waiver is not, “self-executing”, but rather an “affirmative defense” that the government “can raise on appeal.” Therefore, a plea waiver does not automatically prevent defense counsel from filing a notice of appeal. If the government successfully raises this affirmative defense the consequence would follow what the plea agreement dictates.
In contrast, State of Idaho's Deputy Attorney General, Kenneth Jorgensen, argued that an appeal waiver constitutes a waiver of procedures that forfeited the defendant's right to appeal rather than just a waiver of the right to appeal specific issues. He asserted that looking at a plea appeal waiver must be done on a fact-by-fact analysis. Using this approach, according to Idaho's counsel, Garza waived his right to appeal on all the issues that he could “conceivably waive it to.” Consequently, Garza waived his ability to appeal his sentences. In addressing Flores-Ortega, the Idaho's counsel argued that where a defendant has provided conflicting guidance one must look to the “totality of the circumstances” to determine if there is a presumption of prejudice based on counsel's post-conviction conduct. The relevant the circumstances include the appeal waiver, its scope, the client’s instruction, and defendant’s counsel’s determination that what the client’s request for an appeal is within the scope of that appeal waiver.
Throughout oral argument, Justice Gorsuch seemed concerned on what he named the “normal division of labor between clients and lawyers.” According to Justice Gorsuch, “clients specify the end, I wish to appeal, and leave it to the lawyer to determine the means.” This includes the attorney’s role in inquiring whether there are viable issues to appeal. Gorsuch suggested that the attorney’s failure to conduct this inquiry would be presumptively prejudice.
Justices Breyer and Gorsuch teamed up on a line of questioning to push Allon Kedem, assistant to the Solicitor General, Department of Justice appearing as amicus curiae in support of Idaho, on how the government differentiates Flores-Ortega from the Garza’s circumstances. Justice Breyer appeared particularly skeptical of the government’s arguments that the defendant would not be presumptively prejudiced by the attorney’s failure to file an appeal upon the defendant’s request. Demonstrating his frustration with the government’s arguments, Justice Breyer responded to Justice Gorsuch’s question to the government by adding that “you might have some good arguments. The chances are you don’t.”
The circuit courts disagree on question before the Supreme Court in this case. Eight circuit courts have held that there is a presumption of prejudice in line with Flores-Ortega, and two have required that the defendant show actual prejudice. This case has the potential for broad impact, as over 90% of federal and state criminal cases end with a plea agreement. Because plea agreements typically include an appeal waiver, the Supreme Court’s decision in this case will impact the vast majority of criminal defendants in the United States.