Plea does not waive counsel of choice claim

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Even if a defendant pleads guilty, he does not waive the right to appeal the court’s earlier denial of his right to counsel of his choice.

Quoting a Fifth Circuit opinion addressing the issue, Judge Matthew F. Kennelly iterated, “If a defendant is erroneously denied the counsel of his choice, it is a structural error in the trial that brings into question the voluntary and intelligent character of the guilty plea itself.”

However, if the defendant specifically waives the right to appeal, and the court complies with Rule 11, the challenge could be waived.

In 2007, Kerry L. Smith was charged in Illinois federal court with conspiracy to distribute marijuana and other charges. He retained attorney John Rogers to represent him.

On Aug. 25, 2008, Smith moved to substitute Beau Brindley as counsel. At that time, no trial date had been set.

Nevertheless, the court denied the motion, asserting that trial had been set for Nov. 4, a date on which Brindley was unavailable, and refusing to schedule trial on any later date.

Instead, the court appointed a different attorney to represent Smith. In September, he pleaded guilty, pursuant to a plea agreement that waived his right to appeal.

But, Smith appealed after he was sentenced to 92 months imprisonment. The Seventh Circuit vacated the conviction, and remanded with instructions to permit Smith to withdraw his plea.

The court acknowledged that a guilty plea typically waives objections to non-jurisdictional defects.

However, the U.S. Supreme Court recently held that denial of the right to counsel of choice is a structural error. U.S. v. Gonzalez-Lopez, 548 U.S. 140 (2006).

In Gonzalez-Lopez, the court observed that the choice of attorney can affect whether the defendant pleads guilty or goes to trial. Id., at 150.

Because the defendant’s choice of counsel may seriously affect the decision to plead guilty in the first place, the Seventh Circuit agreed that a guilty plea does not waive a choice of counsel claim.

The court also held that Smith did not waive the right to appeal via the appellate waiver in his plea agreement. The court found that the district court failed to comply with the requirement in Rule 11 that it inform the defendant of the terms of the waiver and determine that he understands it.

“[T]he record does not reflect an understanding that Smith was giving up his right to appeal from the district court’s denial of his defense counsel of choice,” the court concluded. “Given the court’s failure to meet the requirements of Rule 11(b)(1)(N) and the fundamental nature of the underlying right at issue, the plea agreement’s appellate waiver does not preclude Smith from challenging … the court’s alleged denial of his right to counsel of his choice.”

David Ziemer can be reached at [email protected].

What the court held

Case: U.S. v. Smith, No. 09-1443

Issues: Does a guilty plea waive the right to appeal the denial of a motion to substitute counsel?

Holdings: No. Where a defendant is denied the counsel of his choice, the subsequent guilty plea is suspect.