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Denial of new counsel held error

By: dmc-admin//January 21, 2008//

Denial of new counsel held error

By: dmc-admin//January 21, 2008//

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It was error to proceed with sentencing after the defendant’s appointed attorney said that he was not prepared and his client wanted a new attorney, the Seventh Circuit held on Jan. 10.

Raymond Ryals was charged in Wisconsin federal court after accepting $50 for helping to arrange the sale of an ounce of crack cocaine from a crack dealer to a confidential informant.

He was found guilty at trial, and three weeks prior to sentencing, his appointed attorney moved to withdraw, stating that Ryals wanted different counsel to represent him at sentencing. The attorney filed no objections to the presentence report.

Client Lacked Confidence

At the sentencing hearing, counsel informed the court that Ryals believed he made inappropriate choices during the trial, lacked confidence in him, and did not want him to have anything more to do with the case.

The court asked counsel if he was able to adequately represent Ryals at sentencing that afternoon, and counsel stated, “I say no, Your Honor, because I know expressly that he doesn’t want me to represent him.”

Rather than follow up on this statement, the court then turned to Ryals, who said, “I don’t want him representing me,” because “he didn’t do a lot of things and he done [sic] a lot of things and let a lot of things be done that I would like to be looked into.”

Nevertheless, the court proceeded with sentencing. Ryals made several sentencing arguments, most challenging his criminal history.

Before sentencing, Ryals stated, “there was [sic] a lot of things that I think I need to talk to another attorney about that went on in this and went on at trial, Your Honor. I mean, and if I proceed with sentencing I would like to just proceed without an attorney at all.”

His counsel made minimal argument, requesting a sentence within the guideline range (360 months to life), only reminding the court that it had the authority under the advisory to impose a lower sentence. Counsel noted that the offense occurred only two months after Ryals had been released from prison on another case.

365-Month Sentence

District Court Judge John C. Shabaz sentenced Ryals to 365 months, and Ryals appealed.

In a decision by Judge Ann Claire Williams, the Seventh Circuit reversed.

The court concluded that three factors weighed in favor of finding that the district court abused its discretion in denying the motion for new counsel: (1) the timeliness of the motion; (2) whether the district court conducted an adequate inquiry into the matter; and (3) whether the breakdown between lawyer and client was so great as to result in a total lack of communication, precluding an adequate defense.

Addressing the timeliness of the motion, the court found that it was timely filed, because the attorney did not delay in filing the motion after the breakdown in communication occurred.

Inadequate Inquiry

Turning the district court’s inquiry, the court found it inadequate, reasoning that, when counsel answered “no,” to the question whether he could adequately represent Ryals, the district court should have inquired further. The court added that there was nothing in the record to suggest that Ryals was attempting to delay sentencing, or was “casually rejecting the latest in a series of appointments.”

But instead of taking the matter up “quickly and seriously,” the court denied the motion.
Turning to the third factor — whether communication had completely broken down — the court concluded that it had.

Examining the sentencing hearing that followed the denial of the motion, the court found that counsel’s only argument — pointing out that Ryals offended soon after being released from prison — did more harm than good.

Finally, the court examined whether the district court’s error was prejudicial, and concluded that it was, because a more vigorous sentencing argument could have swayed the district judge to impose a below-guideline sentence.

The court reasoned, “While Ryals’s criminal history is not negligible, he is also a young man who is being put away for 30 years for a $50 part in a minor-league drug deal. He indicated to his probation officer that he still has career aspirations and wishes to go to college, and his PSR shows that he has had problems with addiction to drugs and alcohol. Counsel highlighted none of these points as grounds for a below-Guidelines sentence, nor did he refer to any of the factors set out at 18 U.S.C. § 3553(a).”

The court continued, “We cannot know for certain that a better argument would have swayed the district court, but we can be certain that counsel’s argument stood almost no chance of doing so.”

Accordingly, the court vacated the sentence, and remanded the case for a new sentencing hearing.

Analysis – New Counsel

Several aspects of the case are noteworthy.

First, when moving to withdraw from a case, counsel should obtain a hearing date prior to the hearing at which he does not wish to participate.

The court’s decision makes clear that the defendant should not be penalized if his attorney does not do so, but the court’s discussion makes clear that the motion should be considered as soon as possible, not put off until the next court appearance that has already been scheduled.

An attorney should also do more, when drafting the motion, than was done in this case — merely stating that Ryals wished to have new counsel for sentencing.

The court rejected the government’s arguments regarding inadequacy of the motion as follows: “it would be inappropriate to blame this on Ryals: he wanted a new lawyer and told his lawyer to move to withdraw but the lawyer didn’t file a very good motion, so Ryals should be penalized?”

The court’s analysis of whether communications had completely broken down between Ryals and his attorney is also noteworthy, for its contrast with a recent case involving a pro se civil litigant who requested that the court seek counsel for him, Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007).

In Pruitt, a pro se prisoner asked the court to seek counsel for him in a Section 1983 action against a prison guard.

The court concluded that, although evidence postdating the court’s decision not to appoint counsel could be used to show prejudice, it was not relevant as to whether the court’s decision to deny counsel was reasonable at the time it was made. Pruitt, 503 F.3d at 659.

In contrast, in the case at bar, the Seventh Circuit used the transcript of the sentencing to show that the motion for new counsel, prior to sentencing, should have been granted. In fact, that was the only evidence the court relied on when considering the third factor — whether communication between client and counsel had completely broken down.

Prior precedent supports the court’s use of this evidence. U.S. v. Huston, 280 F.3d 1164, 1168 (7th Cir. 2002). However, if the reasoning in Pruitt is sound on the question whether counsel should be sought in the first place in a civil case, logically, there is no reason why the same reasoning
should not apply when a defendant seeks new counsel in a criminal case.

In Pruitt, the court wrote, “Were we to find error in the court’s failure to recruit counsel based on evidence that developed AFTER the motion was reasonably rejected, we would in effect be imposing a duty on the court to reexamine its prior ruling (emphasis in original).” Id.

The same could be said in the case at bar, merely substituting “appoint new counsel” for “recruit counsel.”

The issue is of particular importance, since the sentencing guidelines are now advisory, rather than mandatory. Prior to U.S. v. Booker, for all practical purposes, the only way a defendant could show prejudice from a court’s failure to appoint new counsel would be to show that counsel failed to object to how the district court calculated the guideline range.

Effectively, prior to Booker, a defendant would have to show that the guidelines were incorrectly calculated, and that it was his attorney’s fault, to show prejudice.

With the guidelines being advisory, a defendant’s potential arguments that he was prejudiced by the court’s failure to appoint new counsel are limited only by imagination.

Prior to Booker, it would have been pointless for counsel to argue that Ryals “still has career aspirations and wishes to go to college,” or that he has drug and alcohol problems.

Now, however, as in this case, the failure to so argue may be sufficient to establish prejudice.

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