When in Doubt, File the Appeal

Last week it was the Eighth Amendment; this week, it’s the Sixth.

The Sixth Amendment says, “In all criminal prosecutions, the accused shall enjoy the right to … have the Assistance of Counsel for his defence.”

On Wednesday, the U.S. Supreme Court said the right to counsel means you decide whether to appeal, not your lawyer. If he or she blows the filing deadline against your wishes, you are denied your right to the effective assistance of counsel, and you still get to appeal. Even if you waived any appeal in your plea deal.

In this case, the defendant signed a plea agreement that waived his right to appeal. After his conviction, he changed his mind and asked his lawyer to file a notice of appeal, but the lawyer didn’t. To file the notice is a basic but critical step in criminal law. In federal cases and many if not most states, the deadline for it is “jurisdictional.” That means it’s a hard deadline after which you forfeit your right to appeal. In this case, in Idaho, it was 42 days. In the federal courts, it’s 14 days.

The lawyer may have thought it was better to honor the plea deal than risk breaching it, but it wasn’t his call to make. He should have filed the notice to at least preserve his client’s right to be heard. As the Court explained, no waiver can cover all possible claims on appeal. You should always be able to explain, for example, that you didn’t agree to something knowingly or voluntarily. And just filing a notice of appeal, by itself, doesn’t breach a plea agreement. It only preserves your right to be heard.

So the client gets to choose.