Monday, July 22, 2013

Ineffective Assistance of Counsel to Not Consult Regarding Appeal Once Client Expressed an Interest in Getting Less Time

United States v. Pham, No. 11-50717 (July 8, 2013) (Wiener, Dennis, Owen)

Pham, a Vietnamese refugee who speaks no English, pleaded guilty pursuant to a plea agreement with an appeal waiver. Counsel explained to Pham that he was likely to receive the mandatory minimum sentence, but Pham believed he would get probation. Pham had no criminal history and only started growing marijuana because his wife was diagnosed with a brain tumor. The Government, however, did not believe that he was being truthful about his conduct and did not move for a § 5K1.1 downward departure. Similarly, the district court concluded he did not qualify for safety valve and sentenced Pham to five years.

Immediately after sentencing, Pham spoke with his counsel and said he "was concerned about getting 60 months and wanted to do something to get less time." Counsel discussed with Pham the possibility of a reduced sentence pursuant to Rule 35 if he cooperates, but counsel did not mention or discuss the possibility of a direct appeal, and no notice of appeal was filed. Pham later filed a § 2255, which the district court denied.

The panel reversed, holding that counsel breached his duty to consult because Pham reasonably demonstrated to counsel that he was interested in appealing since counsel knew Pham had hoped to receive a sentence of probation only and Pham was visibly upset when he told counsel that he wanted to do something to get less time. "We disagree [with the district court] that a lay defendant, particularly one who speaks no English, must incant the magic word ‘appeal’ to trigger counsel’s duty to advise him about one. . . . [C]ounsel’s professional opinion eschewing appeal does not excuse failure to consult altogether."

The lesson: Consult with your client regarding an appeal. The Supreme Court predicted that this duty would exist "in the vast majority of cases." Thus, failure to consult will likely be ineffective assistance of counsel.

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