Case Law Update: 2011-2014 Cumulative Edition

Holding: Even though attorney told court that Witness would assert 5^th Amendment right against self-incrimination if called to testify, Defendant’s right to a public trial was violated where court did not require Witness to be sworn and assert her 5^th Amendment right in open court.

Venue
U.S. v. Vilar, 93 Crim. L. Rep. 709 (2d Cir. 8/30/13):

Holding: The limits on extraterritorial application of U.S. securities fraud laws set forth in Morrison v. National Austrialia Bank Ltd (U.S. 2010) apply to criminal prosecutions.
Com. v. Toolan, 2011 WL 3659405 (Mass. 2011):

Holding: Change of venue should have been granted in small community where many jurors knew victim and her family or witnesses.
Lam Luong v. State, 2013 WL 598119 (Ala. App. 2013):

Holding: Pretrial publicity about Defendant’s case, which involved murder of his four children by throwing them off bridge, was so extensive that prejudice is presumed, warranting a change of venue.
Fortner v. Superior Court, 159 Cal. Rptr. 3d 128 (Cal. App. 2013):

Holding: California did not have jurisdiction to try California-resident-Defendant for domestic abuse for hitting his domestic partner in Hawaii while they were on vacation there, since the act in Hawaii was spontaneous and Defendant did not do any “preparatory act” in California.

Waiver of Appeal & PCR
Cooper v. State, No. SC91695 (Mo. banc 12/6/11):

Where Movant waived his postconviction rights as part of his plea bargain and his later postconviction motion failed to allege or prove the presence of an actual conflict of interest, i.e., “a claim of ineffective assistance of counsel that pertains to the knowing, voluntary, and intelligent waiver of postconviction rights,” then the postconviction motion should be dismissed.

Facts: Movant pleaded guilty in a plea bargain which also required that he waive his rights to later pursue postconviction relief. At the plea hearing, the court inquired whether Movant understood this, whether he had any complaints about his attorney, and whether he understood that he was waiving his posconviction rights. Later, Movant filed a Rule 24.035 motion.

Holding: Movant argues that his waiver of postconviction rights was unknowing, unintelligent and involuntary because of defense counsel’s potential conflict of interest in advising him to waive his postconviction rights. However, a movant can waive his postconviction rights in exchange for a plea bargain if the record clearly demonstrates that the movant was properly informed of his rights and that the waiver was knowing, voluntary and intelligent. A movant’s plea agreement to waive postconviction rights does not waive the right to argue that the decision to enter the plea agreement was not knowing, voluntary or intelligent; this may be done through a state habeas petition. Additionally, a movant’s plea agreement to waive postconviction rights does not waive the right to argue that the decision to enter the plea agreement was not knowing and voluntary because it was the result of ineffective assistance of counsel. There must be a factual basis for the claim of ineffective assistance in order to survive a wavier of postconviction relief. A court must determine whether there is any basis for a claim of ineffective assistance and whether the ineffectiveness claims pertain to the validity of the plea. Movant relies on Advisory Committee Opinion 126 (May 19, 2009) for his claim that the waiver is invalid here. Opinion 126 held that it was not permissible for defense counsel to advise a defendant regarding waiver of postconviction rights because this would violate Rule 4-1.7(a)(2) because there is a significant risk that the representation of the client would be materially limited by the personal interest of defense counsel. In addition, Opinion 126 held that it was “inconsistent” with the prosecutor’s duties as minister of justice to seek a waiver of postconviction rights based on ineffective assistance of counsel. It is important to note that the instant plea agreement predates Opinion 126 so the attorneys at issued did not violate the formal opinion. Additionally, no attorneys have sought to have the Supreme Court review Opinion 126, even though there is a procedure for an aggrieved attorney to do so. A violation of a professional rule does not equate to a constitutional violation, however. Here, Movant “has neither alleged nor proven the presence of an actual conflict of interest – that is to say, a claim of ineffective assistance of counsel that pertains to the knowing, voluntary, and intelligent waiver of the postconviction rights.” Therefore, the wavier is valid, and the case should be dismissed.

Editor’s Note: Footnote 1 notes that courts will recognize an exception to waiver if it can be determined from the indictment, information and transcript that the court lacked power to enter the plea. Also, footnote 1 states motion courts must still enter Findings in postconviction cases, even if there was a purported waiver of postconviction rights. “In the future, if a movant alleges that a waiver of postconviction relief was not given knowingly, voluntarily or intelligently because an actual conflict of interest adversely affected defense counsel’s performance,” the court must still enter Findings.
Krupp v. State, No. SC91613 (Mo. banc 12/6/11):

Where Movant had a jury trial but prior to sentencing entered into an agreement with the State for a favorable sentence in exchange for waiving his appeal and postconviction rights and his later postconviction motion failed to allege an actual conflict of interest by defense counsel, the postconviction case should be dismissed.

Facts: Movant was convicted at a jury trial of various offenses. Before sentencing, he entered into an agreement with the State for a favorable sentence in exchange for waiving his appeal and postconviction rights. At sentencing, the court asked if he understood the agreement, had any complaints about his attorney, and understood the waiver. Movant received the favorable sentence. Later, he filed a Rule 29.15 motion.

Holding: Movant claims that his waiver of postconviction rights was not knowing, intelligent or voluntary because of defense counsel’s potential conflict of interest in advising him to waive his postconviction rights. Movant relies on Advisory Committee Opinion 126 (May 19, 2009), which held that it was not permissible for defense counsel to advise a defendant regarding waiver of postconviction rights because this would violate Rule 4-1.7(a)(2) because there is a significant risk that the representation of the client would be materially limited by the personal interest of defense counsel, and that it was “inconsistent” with the prosecutor’s duties as minister of justice to seek a waiver of postconviction rights based on ineffective assistance of counsel. It is important to note that the agreement in this case was before Opinion 126, so the attorneys did not violate the Opinion. Also, there is a procedure for aggrieved attorneys to challenge a formal opinion in the Supreme Court, but no attorney has yet done so. For the reasons set forth in Cooper v. State, No. SC91695 (Mo. banc 12/6/11), the waiver here is valid. Movant has only alleged that this waiver was not voluntary, knowing or intelligent because of a potential conflict of interest by defense counsel. It must be alleged and demonstrated that the waiver was not knowing, voluntary and intelligent because there was an actual conflict of interest that adversely affected counsel’s performance. Something must have been done by counsel or something must have been forgone by counsel which was detrimental to the Movant and advantageous to the counsel. In the absence of that, the case should be dismissed.
U.S. v. Orti-Garcia, 2011 WL 6061352 (1^st Cir. 2011):

Holding: Defendant’s appellate waiver was not knowing and voluntary, where district court did question defendant about his understanding of the waiver provision, but did not ascertain whether defendant understood the maximum penalty.
U.S. v. Torres-Rosario, 90 Crim. L. Rep. 70 (1^st Cir. 9/23/11):

Holding: Interests of justice allow Defendant to appeal ACCA sentence, even though he expressly waived ACCA challenges at sentencing.
U.S. v. Wilson, 92 Crim. L. Rep. 577 (3d Cir. 2/14/13):

Holding: An appeal waiver does not preclude appeal of order modifying terms of supervised release.
U.S. v. Saferstein, 90 Crim. L. Rep. 788 (3d Cir. 1/26/12):

Holding: A district judge’s botched summary of the terms of a plea bargain during a plea colloquy had the effect of expanding the defendant’s right to appeal, notwithstanding specific limitations to the contrary laid out in the written agreement.


U.S. v. Castro, 92 Crim. L. Rep. 426, 2013 WL 69214 (3d Cir. 1/8/13):

Holding: Even though Defendant who pleaded guilty executed an appeal waiver, the waiver should not be applied where the evidence was legally insufficient to convict since this would result in a miscarriage of justice; here, Defendant was convicted of obstructing justice for making a statement that, although intended to be a lie, was in fact accurate.
Rodriguez v. Thaler, 2011 WL 6184481 (5^th Cir. 2011):

Holding: While defendant signed a document indicating that, upon his guilty plea, the State would recommend to the court that defendant waived any rights he might have to appeal, the transcript of his sentencing revealed that the State did not actually make the recommendation, and so defendant did not waive his right to direct appeal.
U.S. v. Adkins, 94 Crim. L. Rep. 535, 2014 WL 325254 (7^th Cir. 1/30/14):

Holding: Even though Defendant waived his right to appeal, this did not prohibit appealing a condition of supervised release prohibiting him from patronizing any place where pornography or sexually oriented material was available; the condition was so vague that no reasonable person would know what is prohibited, and Defendant should be allowed to obtain appellate review of it; the condition would arguably ban going to a grocery store or library.
Hurlow v. U.S., 93 Crim. L. Rep. 670 (7^th Cir. 8/9/13):

Holding: Even though Defendant waived his right to pursue an ineffectiveness claim as part of his plea bargain, the waiver was not valid where he alleged that he entered the plea agreement on the basis of advice that fell below constitutional standards; here, Defendant alleged he would not have taken the plea deal but for counsel’s failure to recognize that there was a valid 4^th Amendment suppression issue; it is an attorney’s ineffectiveness with regard to the plea agreement as a whole, and not just the specific waiver provision at issue, that renders the waiver unenforceable.
Dowell v. U.S., 2012 WL 403798 (7^th Cir. 2012):

Holding: Even though plea agreement provided that Defendant could not collaterally attack certain issues, Defendant still could raise claim of ineffective assistance of counsel that had been specifically reserved in the plea agreement.
U.S. v. Gonzalez-Melchor, 89 Crim. L. Rep. 641 (9^th Cir. 7/8/11):

Holding: Where judge participated in getting Defendant to waive his appeal in exchange for a lower sentence, this waiver was unenforceable and invalid; judge’s participation was analogous to impermissible participation in plea negotiations by a judge.
U.S. v. Lonjose, 90 Crim. L. Rep. 451 (10^th Cir. 12/28/11):

Holding: Even though Defendant waives his right to “appeal any sentence within the statutory range,” this did not prevent Defendant from appealing post-sentencing modifications to his conditions of supervised release.


U.S. v. Godoy, 2013 WL 425334 (D.C. Cir. 2013):

Holding: Even though Defendant waived his appeal, where trial court told him he was waiving his appeal “except for something illegal, such as imposing a period of imprisonment longer than the statutory maximum,” then Defendant did not waive his right to appeal an illegal sentence; the judge’s oral pronouncement controls.
In re Sealed Case, 2012 WL 6632927 (D.C. Cir. 2012):

Holding: Even though Defendant waived right to appeal his “sentence,” this did not waive right to appeal restitution order.
People v. Bradshaw, 2011 WL 6157282 (N.Y. 2011):

Holding: Defendant did not willingly waive right to appeal by pleading guilty to rape, where the trial court asked whether defendant understood its remarks about the appeal waiver in the plea agreement and defendant responded by asking about the mandatory fees associated with his plea.

Waiver of Counsel
U.S. v. Barton, 2013 WL 1296475 (2d Cir. 2013):

Holding: Even though Defendant did not hire a lawyer and refused to accept appointed counsel, he was entitled to proceed pro se and court erred in denying Public Defender’s motion to withdraw.
U.S. v. Booker, 2012 WL 2510564 (3d Cir. 2012):

Holding: Defendant’s waiver of counsel was not knowing and intelligent where trial court misinformed Defendant of the mandatory minimum sentence and maximum punishments for the charged offenses.
U.S. v. Ross, 2012 WL 6734087 (6^th Cir. 2012):

Holding: Where record was unclear whether standby counsel had provided meaningful adversarial testing of Defendant’s competency, remand was required.; 6^th Amendment requires counsel at a competency hearing even where Defendant previously waived counsel.
U.S. v. Campbell, 2011 WL 4436001 (7^th Cir. 2011):

Holding: Despite earlier indications that defendant sought to waive his right to counsel and proceed pro se, further ambiguous responses showed that the waiver and demand to proceed pro se were not unequivocal.
Tillman v. U.S., 93 Crim. L. Rep. 278, 2013 WL 227834 (D.C. 5/23/13):

Holding: The judicial warnings that must precede a waiver of counsel under Faretta do not carry over from a prior case to another one, i.e., Defendant wishing to waive counsel in a second case had to be given the warnings again.
Jensen v. Hernandez, 2012 WL 1130599 (E.D. Cal. 2012):

Holding: After the State filed for enhanced sentencing, trial court erred in not obtaining a second waiver of counsel from Defendant who was representing himself under Farretta.
Becker v. Martel, 2011 WL 1630816 (S.D. Cal. 2011):

Holding: Even though Defendant had previously waived counsel, the subsequent addition of 12 new counts and increased penalty was a substantial change that required court to readvise Defendant about right to counsel; failure to do so was prejudicial per se under 6^th Amendment.
Holland v. Tucker, 2012 WL 1193294 (S.D. Fla. 2012):

Holding: The state supreme court unreasonably determined that a petitioner’s right self-representation was not denied at his capital murder trial, so as to warrant federal habeas relief.
Stokes v. Scutt, 2011 WL 5250848 (E.D. Mich. 2011):

Holding: State court unreasonably applied clearly established federal law in determining that petitioner waived right to counsel, where petitioner was compelled to represent himself after being informed by the trial judge that substitute counsel would not be appointed following petitioner’s expression of dissatisfaction with counsel and the judge’s failure to resolve the complaints.
State v. Pitts, 2014 WL 235462 (Haw. 2014):

Holding: Even though Defendant waived counsel mid-trial, he was allowed to reinvoke counsel and should have been provided counsel for his new trial motion and sentencing, as these were “critical stages” to which right to counsel attached.
Mitchell v. Com., 2014 WL 68365 (Ky. 2014):

Holding: Trial court’s denial of request for “hybrid” representation, based on mistaken belief that Defendant was required either to accept counsel or go pro se, misstated the law and was reversible error.
Allen v. Com., 94 Crim. L. Rep. 15, 2013 WL 5406606 (Ky. 9/26/13):

Holding: Judge violated 6^th Amendment right of self-representation where Defendant was representing himself at trial, but judge allowed only standby counsel to attend bench conferences.
State v. Krause, 2012 WL 3023199 (Minn. 2012):

Holding: Failure to provide counsel at hearing to determine whether Defendant had forfeited his right to appointed counsel violated due process.
People v. Crampe, 90 Crim. L. Rep. 109 (N.Y. 10/13/11):

Holding: Even though second judge properly advised about dangers of self-representation, this did not cure a prior judge’s inadequate advice on this matter; the critical time for analysis is the point when Defendant first waived his right to counsel.
State v, Langley, 2012 WL 1038674 (Or. 2012):

Holding: No waiver of the defendant’s constitutional right to counsel could be inferred from the defendant’s pattern of misconduct and noncooperation prior to trial.
State v. Sampson, 2011 WL 2670182 (R.I. 2011):

Holding: Waiver of counsel was not knowing, intelligent and voluntary where trial court forced Defendant to proceed pro se or accept an appointed attorney who refused to carry out Defendant’s personal right to waive a jury trial.
Perryman v. State, 2013 WL 4712499 (Miss. App. 2013):

Holding: Where trial court conducted only perfunctory examination of Defendant about dangers of self-representation at his resentencing hearing, and did not warn about its advantages and disadvantages, Defendant’s waiver of counsel was not knowing and intelligent.

Waiver of Jury Trial
State v. Williams, 2013 WL 6818208 (Mo. App. E.D. Dec. 24, 2013):

Record did not show with unmistakable clarity that Defendant personally waived his right to a jury trial where the only evidence of this in the record was counsel’s motion and statement that Defendant was waiving this right.

Facts: Defendant was charged with felony nonsupport. Counsel filed a motion stating that “Defendant, by and through counsel, … hereby waives his right to a jury trial … and asks that this matter be tried to the Court.” At the beginning of trial, the court asked if jury trial was waived, and defense counsel answered, “yes.” Defendant was convicted at the bench trial. On appeal, Defendant claimed the trial court plainly erred by proceeding to trial without obtaining a valid wavier of jury trial from Defendant.

Holding: Since this issue was not raised below, the matter can only be reviewed for plain error and manifest injustice. Rule 27.01(b) requires that in felony cases, waiver of the constitutional right to jury trial shall be made in open court and entered of record with “unmistakable clarity.” The judge is not required to question a defendant personally about this, but there must be something in the record that shows with “unmistakable clarity” that the defendant personally knowingly, voluntarily and intelligently waived this right. For example, waiver has been shown where a bench trial proceeded on reduced charges, or could be shown were counsel files a memorandum signed personally by defendant showing that counsel discussed the right to a jury trial and that defendant understands the consequences of the waiver. Here, the record reflects only that counsel waived the right to a jury trial, not Defendant personally. This resulted in manifest injustice. New trial granted.
State v. Frye, 2012 WL 1987192 (Kan. 2012):

Holding: Even though Defendant initially filed a hand-written waiver of jury trial, where that apparently occurred when he was charged with a misdemeanor for which there was no right to a jury trial, and Defendant was later charged with a felony and never warned by the court of his right to a jury trial, the waiver was invalid.
Com. v. Simmons, 92 Crim. L. Rep. 786 (Ky. 3/21/13):

Holding: Right to be tried by a 12-person jury under state constitution cannot unilaterally be waived by defense counsel, but requires Defendant’s personal consent.
Winters v. State, 2013 WL 5354333 (Md. 2013):

Holding: Defendant’s wavier of jury trial was not knowing where trial court erroneously advised him that when proving he was not criminally responsible at trial, he would have to do so beyond a reasonable doubt.
Valonis v. State, 2013 WL 2150507 (Md. 2013):

Holding: For a waiver of jury trial to be valid, court must strictly comply with rule requiring waiver to be on the record.
State v. Kuhlmann, 90 Crim. L. Rep. 452 (Minn. 12/21/11):

Holding: Wavier of right to jury trial on existence of prior conviction can only be waived by Defendant personally, not his counsel.
State v. Harrell and State v. Wilson, 92 Crim. L. Rep. 696, 2013 WL 753094 (Or. 2/28/13):

Holding: Under Oregon Const., which unlike federal constitution explicitly gives defendants a right to waive a jury trial, court must weigh a variety of factors including interests of both defendant and state before denying a waiver.