Criminal representation is a process where a client literally puts his life in the hands of his attorney. I recently had occasion to revisit a case decided by the Michigan Court of Appeals late last year. It’s an unpublished decision, but it provides a helpful illustration of how a criminal case can quickly deteriorate without effective legal representation.
In this case, the defendant, Alan Trowbridge, was charged with five counts of criminal sexual conduct (CSC) in the first degree—the most serious form of the charge. Then the plea bargaining process began, as most cases are resolved this way instead of going to trial. The fact is that courts simply do not have the resources to hold a trial in every case; so courts attempt to resolve as many cases as possible through plea agreements.
The prosecution made several plea offers to the defendant that were all rejected. There was a final pretrial conference where the prosecution made a plea offer that the defendant pleads guilty to two lesser CSC charges as a second offender. This offer was also rejected.
Trial Begins for the Accused
On the first day of trial, the prosecution and defense counsel alerted the court they had reached a plea agreement for the defendant to plead no contest to three counts of third-degree CSC with no habitual offender sentencing enhancement.
However, the court would not agree to accept this plea agreement. First, the prosecutor, defense counsel, and defendant all signed a memo at the final pretrial meeting that stated no pleas to a reduced charge would be accepted by the court after the final pretrial conference. Furthermore, it’s at the court’s discretion whether a no contest plea—that is, a defendant accepts responsibility and punishment for a crime without admitting guilt—is accepted or rejected.
One huge benefit of having experienced legal counsel is that the attorney is accustomed to the policies and practices of each individual court. Every court is slightly different. Every judge also has different preferences and quirks in handling court proceedings as well. This particular court has a strict deadline for entering pleas and would not waive it. The prudent course would have been to inquire about this before the hearing date.
So the defendant went to trial. Two charges were dismissed; and the defendant was convicted on the other three charges. The judge then notified the parties that the statute mandated that the 30-year-old Trowbridge be sentenced to a life sentence without parole for all three counts of first-degree CSC.
The startling fact is that neither the prosecutor nor defense counsel realized that there was a mandatory life sentence without parole to be imposed due to the defendant’s prior CSC conviction until after the completion of the trial.
Experienced attorneys do not rely on the prosecution to do their research for them regarding potential consequences to crimes. Some prosecutors are overburdened with a high caseload or are simply undertrained. But the bottom line is, the prosecutor’s job is to gain convictions and not to look out for the defendant’s well-being. Either way, an effective lawyer is diligent in preparing for every case. The tragedy here is that the oversight was avoidable. The information is very plainly in the statute.
After sentencing, the defendant appealed and requested a hearing regarding making a determination of ineffective assistance of legal counsel. Every criminal defendant is constitutionally guaranteed adequate legal representation by the Sixth Amendment, which is applicable to all states through the Fourteenth Amendment. The U.S. Supreme Court recently reaffirmed that this right extends to the plea bargaining process.
To establish ineffective assistance of counsel, the defendant must show (a) that the attorney’s performance was objectively unreasonable in light of prevailing professional norms, and (b) that, but for the attorney’s errors, a different case outcome reasonably would have resulted.
The second prong—prejudice—could be established if a defendant receives a longer sentence after trial than if he or she had accepted a plea bargain; and by showing a reasonable probability that if given proper legal advice during plea bargaining that the plea would have been accepted.
The expanded test for a rejected plea offer requires a defendant to show that it is reasonably probable that (a) the defendant would have accepted the plea offer, (b) the prosecution would not have withdrawn the plea offer in light of intervening circumstances, (c) the trial court would have accepted the defendant’s plea, and (d) the defendant’s sentence under the terms of the plea bargain would have been less severe than what was imposed after trial.
The court found that the attorney’s performance was objectively unreasonable. However, the court did not find that the oversight about advising as to the mandatory life sentence would have changed the outcome of the case. Defense counsel advised the defendant that if he went to trial he faced a minimum of 30 years and possibly a longer term due to prior convictions—tantamount to a life sentence in the court’s opinion. The final pretrial plea offer would have capped the defendant’s sentence at 22 ½ years, but the defendant would have been required to plead guilty; the court felt there was no convincing evidence to support the defendant would have been willing or able to enter a guilty plea since he maintained his innocence. Not only did the defendant not testify at the hearing whether or not he would have accepted the plea offer, but defense counsel did not know whether the defendant would have pleaded guilty rather than no contest on the first day of trial if the plea bargain deadline had been waived.
I realize in this economy that sometimes people choose attorneys based on fees alone. However, there is a huge difference between 22 ½ years and mandatory life in prison with no parole. Advising clients of consequences of their decision is essential to the process of clients making informed decision. It is shocking to think of someone facing mandatory life and not knowing it. It is even more shocking when the appellate courts refuse to fix the situation.