Refusal to File a Notice of Appeal Creates a Presumption of Prejudice In Attorney Ineffectiveness Claim

A recent opinion by the Supreme Court held that a defendant who lost a chance at an appeal because of their attorney’s ineffectiveness should be presumed to have been harmed by the attorney’s actions “regardless of whether the defendant has signed an appeal waiver.” See Garza v. Idaho.

In claiming ineffective assistance of counsel, or in proving that a defendant was denied their constitutional right to competent counsel because of their attorney’s ineffectiveness, the defendant must apply the test in Strickland v. Washington. The Strickland test prongs include: (1) “that counsel’s representation fell below an objective standard of reasonableness,” and (2) that any such deficiency was “prejudicial to the defense.” In 2000, the Supreme Court found in Roe v. Flores-Ortega that “prejudice is presumed” in “certain Sixth Amendment contexts,” such as “when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken.”

More recently, the Supreme Court decided Garza v. Idaho on February 27, 2019, where defendant Garza signed two plea agreements for state criminal charges, each stating that he waived his right to appeal. After his sentencing hearing, Garza informed his attorney that he wanted to appeal. Garza’s attorney refused. After the time period for Garza’s notice of appeal lapsed, he sought state post conviction relief, through stating that his attorney had failed to file a notice of appeal, and as such his attorney’s representation was ineffective.

At the stage where a party is filing a notice of appeal, the actual claims of that appeal are likely to be unknown, or not very well defined. A notice of appeal merely informs the court and opposing party of a likely appeal, but it does not specify which claims will be brought up nor does it necessarily breach a plea agreement. Additionally, appeal waivers do not serve as an absolute bar to all appellate claims, as there are some claims that cannot be waived or are not considered within the plea agreement. Further, “ultimate authority” to decide whether to pursue an appeal belongs to the accused, not their attorney. See Jones v. Barnes.

Analysis under Flores-Ortega reveals that because Garza wished to appeal and the attorney did not file a notice of appeal within the appropriate time that “the accused [was] denied counsel at a critical stage” and the attorney’s deficiency forfeited the “appellate proceeding altogether.” In situations like this, Flores-Ortega reasons that a presumption of prejudice applies in the second prong of Strickland v. Washington for a claim of ineffective assistance of counsel. The new holding in Garza v. Idaho, extend to include situations where the defendant signed an appellate waiver, with the Supreme Court stating that a notice of appeal could lead to an appeal of issues beyond the waiver’s scope. As a result of attorney refusal to file a notice of appeal, there is a presumption that the lawyer’s deficiency is prejudicial to the defense.

To read Garza v. Idaho in full, see:
https://www.supremecourt.gov/opinions/18pdf/17-1026_2c83.pdf

If you have signed a plea agreement or appellate waiver, and have questions about your appellate rights, or any other criminal or immigration matters, contact Hughes Law at (215) 454-6680.