Seventh Circuit: Incompetent Advice to Reject Plea Offer Requires Evidentiary Hearing
by David M. Reutter
The U.S. Court of Appeals for the Seventh Circuit held a district court erred in failing to grant an evidentiary hearing on a claim that counsel rendered ineffective assistance by advising him to reject a favorable plea agreement without having reviewed the case file.
David L. Day, Jr., was charged in September 2013 with conspiracy to commit wire fraud and making false statements in loan and credit applications. In 2012, Day participated in a fraudulent scheme disguised as a “credit repair service.” Day sold misappropriated Social Security numbers to his “customers” with instructions on how to use their new “credit profile number” to apply for new retail loans.
Originally represented by federal defender Monica Foster, the Government in June 2014 offered a plea deal that provided for Day to plead to the conspiracy count and dismissal of the other count. It also agreed to an offense level and criminal history category that put Day into a Guidelines range of 51 to 63 months in prison. Foster believed the Government may agree to a downward departure to 40 months due to Day’s substantial assistance. She advised Day to accept the offer because he had no viable defense, and he was ready to accept the initial offer if the counteroffer was rejected.
Meanwhile, Day’s father recommended he get a second opinion from private attorney John Schwartz, who had no prior experience in federal criminal cases. Schwartz brought in John Christ, who had experience in federal criminal law. They told Day he was not guilty of a crime because he “could not be convicted for conduct that mothers were openly engaging in.” Day retained the pair for $30,000 to take the case to trial. Following their advice, he rejected the plea offer.
The Government renewed its plea offer to Day’s new attorneys. They were “dismissive” of it, assuring Day he had a strong defense. As a result, he rejected the offer as the parties prepared for a January 26, 2015, trial date. His counsel arrived late for the final pretrial hearing on January 12 and displayed a significant lack of preparation for trial. Day formally rejected the plea offer at the hearing.
Afterward, his attorneys met with him and advised that based on the Government’s evidence he would lose at trial. Day was shocked and instructed his attorneys to get him “the best deal they could negotiate.” They said his best move was to plead guilty without a plea agreement and throw himself to the mercy of the court.
Four days later, Day pleaded guilty to the conspiracy charge, and the Government agreed to dismiss the other count. A pre-sentence report placed Day in a Guidelines range of 135-168 months. The Government agreed to downward departure for Day’s substantial assistance, putting him in an 87- to 108-month range. The Indiana federal district court sentenced Day to 92 months in imprison. At some point after sentencing, Foster informed Day his attorneys never picked up the case file.
Acting pro se, Day filed a 28 U.S.C. § 2255 motion to vacate his sentence. He alleged Schwartz and Christ were ineffective for rejecting the plea offer despite never reviewing the case file or the Government’s discovery. The district court denied the motion without a hearing.
On appeal, the Government conceded that Schwartz and Christ performed deficiently when they advised Day to reject the renewed plea offer, but it argued a hearing was not necessary because Day could not show prejudice. The Seventh Circuit disagreed.
In denying a hearing, the district court ruled Day could not show prejudice because the plea agreement would not bind the court to a particular sentence. The Seventh Circuit said the proper standard is whether there is a reasonable probability that the court “would have accepted its terms” and the resulting sentence “would have been less severe” than the one that was actually imposed. Lafler v. Cooper, 566 U.S. 156 (2012).
“The district court’s prejudice analysis also overlooks the practical realities of plea negotiations,” wrote the Court. “Few court observers would contend that the government’s views as reflected in its plea stipulation and Guidelines recommendations have no influence on a judge’s real-world sentencing decisions,” the Court stated.
The Court concluded an evidentiary hearing was required. It noted that even if Day shows he would have accepted the plea offer but for the incompetent advice of his attorneys, he must still show a reasonable probability that he would have received a sentence lower than 92 months. If that is proven, then the district court must craft an appropriate remedy.
Accordingly, the Court vacated the district court’s order, and the matter remanded for an evidentiary hearing. See: Day v. United States, 962 F.3d 987 (7th Cir. 2020).
Related legal case
Day v. United States
|Cite||962 F.3d 987 (7th Cir. 2020)|
|Level||Court of Appeals|
|Appeals Court Edition||F.3d|