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Fourth Circuit: IAC for Counsel’s Bad Advice That Open Plea Would Allow Appeal Denial of Motion to Suppress

The U.S. Court of Appeals for the Fourth Circuit held on April 20, 2020, that counsel’s erroneous advice that an open guilty plea without a plea agreement would allow an appeal of the denial of a motion to suppress evidence amounted to ineffective assistance of counsel (“IAC”), where the defendant showed that the ability to appeal drove his decision to plead guilty.

After the U.S. District Court in Maryland denied Sheriff Akande’s motion to suppress the evidence in his bank fraud case, he pleaded guilty without a plea agreement (“open plea”). The district court held a hearing, advising Akande of the rights he was waiving by pleading guilty and accepted his plea. But before he was sentenced, Akande’s lawyer moved to withdraw his guilty plea, admitting on the record that she told Akande that if he pleaded openly, “he would be preserving all of his appellate rights.”

She conceded that this was “not a correct statement of the law.” In fact, he could only preserve his right to appeal the suppression motion denial if he entered a conditional plea allowing an appeal or if he went to trial.

Before the court could decide the motion to withdraw his guilty plea, Akande’s lawyer withdrew from the case, and he was appointed new counsel — who withdrew his motion to withdraw his guilty plea. He was sentenced to just over 16 months in prison, and the Fourth Circuit affirmed his conviction on direct appeal. Akande then filed a motion to vacate his conviction under 28 U.S.C. § 2255, claiming IAC in his decision to plead guilty. Without holding a hearing, the district court denied the motion, but the Fourth Circuit granted a certificate of appealability to hear the appeal.

The question before the Fourth Circuit was whether counsel’s bad advice to plead guilty “prejudiced” Akande under Strickland v. Washington, 466 U.S. 668 (1984). The law was established long ago by the U.S. Supreme Court in Tollett v. Henderson, 411 U.S. 258 (1973), that a guilty plea waives most pre-plea errors, including failed challenges to the evidence. To show prejudice, Akande had to show that “he would not have pleaded guilty and would have instead insisted on going to trial.” Lee v. United States, 137 S. Ct. 1958 (2017). This did not mean he had to prove he would have won at trial but only that it would have been “rational” in light of the facts.

The Government argued that even if Akande could have appealed the denial of the suppression motion, he would have lost, and therefore, there could be no prejudice. But the Court rejected this, citing Garza v. Idaho, 139 S. Ct. 738 (2019), which held that it is the right to appeal that counts, not the viability (or likelihood of success) of the appeal, when it comes to assessing IAC.

The Government also argued that the district court’s guilty plea hearing cured any errors by counsel. At the hearing, the district court told Akande that he was waiving his right to appeal: “If you were found guilty after that trial, you have the right to complain about any mistakes that might have been made before or during that trial.... But by pleading guilty, you, in essence, are giving up your right to complain about the conviction.”

While a judge’s comments at the plea hearing can cure any bad advice by counsel, the Fourth Circuit reiterated its rule that “the district court’s admonitions must be sufficiently clear and specific” to correct counsel’s error. The Court found that the district court’s warnings to Akande “were too general to cure plea counsel’s misadvice.” Akande could not have been expected to understand that the suppression ruling would fall under the term “any mistakes that might have been made before or during trial.”

The Court found Akande established prejudice because his claim that his right to appeal was the most important factor for him was corroborated by plea counsel’s testimony at the plea withdrawal hearing. This “clear and contemporaneous evidence,” the Court said, met the Lee standard in establishing prejudice for such an error. “Had counsel accurately advised Akande that he could maintain his appellate rights only by proceeding to trial, it would have been entirely rational for him to do so.”

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Related legal case

United States v. Akande



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