Held: Under the Sixth Amendment Right to Counsel Clause, it is per se ineffective assistance to not file a Notice of Appeal if requested, even if the defendant pleaded guilty and signed an appeal waiver.
In Roe v. Flores-Ortega, 528 U.S. 470 (2000), the United States Supreme Court held that a lawyer’s acts or omissions that prevent a criminal defendant from taking an appeal are per se ineffective assistance of counsel, regardless of whether an appeal would have succeeded. Garza extends that holding to situations where a defendant agrees not to challenge a guilty plea by signing an appeal waiver.
The court reasoned that plea bargains are contracts and that appeal waivers are rarely air-tight. Also, appeal waivers are not self-enforcing. Like any contract, it is up to the aggrieved party to press enforcement. Consequently, it does not follow that an appeal is frivolous because of a waiver, and counsel has the same obligation regardless of the agreement.
This holding depends upon the habeas court finding that the defendant instructed counsel to file the notice; it is not a do-over for prisoners who regret acquiescing to counsel’s advice. However, if a client wants to appeal, counsel must complete the notice timely.
The Garza court in part relied upon the ethical distinction between the goals of representation (like how to plead or whether to testify) which are entirely the client’s prerogative, and the means of achieving those goals, which are up to counsel. The Supreme Court characterized taking an appeal as the former. So not only is failure to file a Notice of Appeal per se ineffective assistance of counsel, it is also an ethical breach that can expose defense counsel to professional discipline.
The Supreme Court of Appeals of West Virginia has also held (on direct appeal in a memorandum—TWICE!) that conduct which prevents a defendant from appealing falls below professional standards. See State v. Echard, No. 11-1047, 2012 WL 3104251, at *1-2 (W. Va. May 29, 2012) (Memorandum Decision); Persinger v. McBride, No. 11-0525, 2012 WL 3055668, at *3 (W. Va. Apr. 16, 2012) (Memorandum Decision). And the court has prescribed its preferred remedy. Rather than the long and circuitous route of habeas corpus, circuit courts have the authority to enter orders resentencing defendants to start anew the 30-day period for filing a Notice.
Appointed counsel can reach Public Defender Service’s Appellate Division at 304-741-8647. In addition to substantive assistance, the division can help with Notices of Appeal and provide form motions/proposed orders for resentencing defendants.