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Common Grounds for Appeal after Sentence (Part 1 of 2)
After a sentence, particularly after a plea to a certain sentence, it is not uncommon for a defendant to regret the plea and the resulting sentence. It is very common for a defendant to call us and ask about reversing the plea (“undoing it”) because he or she was “under a lot of pressure” from the judge, his or her attorney or his or her family in court.
Such circumstances rarely lead to proper grounds for an appeal of the sentence or a motion to vacate or withdraw a plea.
However, if an appellant does want to challenge his or her plea and obtains a certificate of probable cause, he or she may be able to make arguments such as:
These rights are the right to a jury trial, the right to confront and cross-examine the state’s witnesses, the right to present evidence, and the privilege against self-incrimination. See In re Tahl (1969) 1 Cal. 3d 122, 132, 81 Cal. Rptr. 577; Boykin v. Alabama (1969) 395 U.S. 238, 242-243, 89 S. Ct. 1709; 23 L. Ed.2d 274.
Even if the appellant was not advised of their constitutional rights, a court may still find that they actually understood the rights they were giving up. People v. Allen (1999) 21 Cal. 4th 424, 439, fn. 4, 87 Cal. Rptr. 2d 682; People v. Howard (1992) 1 Cal. 4th 1132, 1175, 5 Cal. Rptr. 2d 268; People v. Christian (2005) 125 Cal. App. 4th 688, 697-699, 22 Cal. Rptr. 3d 861.
The plea was not knowing and voluntary because the appellant did not understand the direct consequences of the plea, such as the maximum prison or jail term, probation ineligibility, restitution and other fees, the parole term, or a registration requirement for people with sex offenses. The appellant must also show that it is reasonably probable that he or she would not have entered the plea if he or she had known about the consequences. People v. McClellan (1993) 6 Cal. 4th 367, 378, 24 Cal. Rptr. 2d 739 (registration for people with sex offenses); In re Moser (1993) 6 Cal. 4th 342, 357, 24 Cal. Rptr. 2d 723 (length of parole term); People v. Zaidi (2007) 147 Cal. App. 4th 1470, 1481, 55 Cal. Rptr. 3d 566 (sex offender registration).
Some consequences of pleas are “indirect” or “collateral” and a failure to advise a defendant of an indirect consequence will not make the plea invalid. People v. Gurule (2002) 28 Cal. 4th 557, 633-634, 123 Cal. Rptr. 2d 325 (possible use of the conviction to increase penalty for future crime); People v. Barella (1999) 20 Cal. 4th 261, 263, 272, 84 Cal. Rptr. 2d 128 (limit on prison credit earning); People v. Moore (1998) 69 Cal. App. 4th 626, 630, 81 Cal. Rptr. 2d 658 (potential future SVP civil commitment).
It should be noted that such claims may have been waived if the appellant or their attorney did not object when the sentence was imposed. People v. Villalobos (2012) 54 Cal. 4th 177, 181-182, 141 Cal. Rptr. 3d 491.
The plea was invalid because appellant’s attorney provided ineffective assistance, and the appellant would not have pled guilty or no contest if he or she had received competent legal advice. People v. Johnson (2009) 47 Cal. 4th 668, 678-679, 101 Cal. Rptr. 3d 332; see Hill v. Lockhart (1985) 474 U.S. 52, 106 S. Ct. 366; 88 L. Ed. 2d 203 (standard for evaluating claims of ineffective assistance in plea bargain cases); Padilla v. Kentucky (2010) 559 U.S. 356, 130 S. Ct. 1473; 176 L. Ed. 2d 284 (ineffective assistance in failure to give correct advice about immigration consequences of plea); Henderson v. Morgan (1976) 426 U.S. 637, 96 S. Ct. 2253; 49 L. Ed. 2d 108 (ineffective assistance where attorney failed to advise about what prosecution would need to prove at trial and defendant had never indicated he acted with intent required for the charge).
A defendant may also be able to overturn a conviction where a plea bargain offer lapsed or was rejected due to ineffective assistance of counsel that resulted in the defendant later entering into a less favorable plea agreement or getting convicted at trial. The defendant must show that (1) there is a reasonable probability that he would have accepted the plea offer if he had not received incompetent advice from his attorney; (2) the prosecutor would not have withdrawn the offer before the judgment become final, and (3) the trial court would have accepted the agreement. Missouri v. Frye (2012) 566 U.S. 134, 132 S. Ct.1399; 182 L. Ed. 2d 379; Lafler v. Cooper (2012) 566 U.S. 156, 132 S. Ct. 1376; 182 L. Ed. 2d 398.
The plea was invalid due to appellant’s mental incompetence. People v. Mendez (1999) 19 Cal. 4th 1084, 81 Cal. Rptr. 2d 301.
The plea was not voluntary and intelligent due to misrepresentation by a public official. The appellant need not show that he or she would not have taken the plea if he or she had not been misinformed. People v. Collins (2000) 26 Cal. 4th 297, 306-310, 109 Cal. Rptr. 2d 863 (judge misled defendant that he would receive “some benefit” for waiving his right to trial); People v. DeVaughn (1977) 18 Cal. 3d 889, 896, 135 Cal. Rptr. 786 (misinformation about whether defendant could appeal certain issues following plea); People v. Bonwit (1985) 173 Cal. App. 3d 828, 833 219 Cal .Rptr. 297 (similar).
This article would not be possible without the valuable contribution by the Prison Law Office in making their treatise, The California Prison and Parole Law Handbook, available online for free. We greatly appreciate their work.
