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Plea bargaining advice deficient

By: David Ziemer, [email protected]//March 31, 2011//

Plea bargaining advice deficient

By: David Ziemer, [email protected]//March 31, 2011//

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In January, the U.S. Supreme Court accepted review of a case to decide whether a state prisoner can obtain habeas corpus relief in federal court, after he went to trial because his attorney gave him deficient advice during plea bargaining.

In the meantime, the 7th Circuit is assuming the answer is “yes.”

On Monday, it held that a Wisconsin man — convicted of killing another man who was having an affair with his wife — is entitled to an evidentiary hearing on whether his attorney provided ineffective assistance of counsel.

In 1999, Anthony Graff had an affair with Joan Kerr, the wife of William Kerr. On Aug. 8, 1999, Graff paid a visit to the Kerr’s home, and Kerr was expecting him. Kerr had a loaded shotgun hidden and ready. Police arrived almost immediately, when a neighbor called, but left after Kerr said everything was fine. Kerr later fatally shot Graff.

A jury convicted Kerr of first-degree intentional homicide. He was sentenced to life imprisonment with eligibility for parole after 21 years.

After losing his direct appeal, Kerr filed a sec 974.06 motion claiming ineffective assistance of counsel. The trial court denied the motion, the Court of Appeals summarily affirmed, and the Supreme Court denied review.

Kerr then sought review in federal court, but the district court denied his petition for habeas corpus. Kerr appealed, and the 7th Circuit reversed in an opinion by Judge Diane Wood.

Because of procedural defaults by the State, the court reviewed the claim under the pre-AEDPA standard — disposing of the case “as law and justice require.”

The penalty for first-degree intentional homicide in effect at the time was a mandatory term of life imprisonment with parole eligibility after a minimum of 20 years.

The penalty for reckless homicide was between zero and 40 years, with eligibility for parole after serving 25 percent of the sentence, and mandatory release after serving 67 percent (the crime predated the Truth-in-Sentencing law).

According to Kerr, his trial attorney told him that reckless homicide carried a maximum sentence of life imprisonment and a 13-year minimum. Kerr alleges the district attorney offered a plea deal to reckless homicide, and had he been given correct information about the sentence range, he would have pleaded guilty to this charge.

The court acknowledged this may not be a viable claim.

On Jan. 7, the Supreme Court accepted review in Lafler v. Cooper, 131 S.Ct. 856 (Case No. 10-209), to decide the following issue: whether a person seeking habeas corpus relief from a state conviction may prevail when his lawyer deficiently advises him to reject a favorable plea bargain but the defendant is later convicted and sentenced pursuant to a fair trial.

But the 7th Circuit declined to hold Kerr’s case pending the decision in Lafler, although it added that, if the Supreme Court ultimately holds that a fair trial eliminates any claim relating to potential plea bargains, Kerr’s case will likely have to be dismissed.

Turning to the merits, the court found that, if Kerr’s claims are correct, he received deficient representation.

“If Kerr’s lawyers told him (as he alleges) that he would face 13 years to life in prison as a result of pleading guilty to reckless homicide, they overstated the minimum sentence by 13 years and the maximum sentence by much more than that (depending on how long Kerr lives). This is a basic legal error that easily falls ‘below an objective standard of reasonableness.'”

The court also found that the deficiency was likely prejudicial, because, as the maximum and minimum sentences for reckless homicide were allegedly related to Kerr, he had little to lose by going to trial, rather than taking a plea.

Because no court, state or federal, has yet held a hearing on whether or not Kerr did in fact receive incorrect advice from his attorney, the court reversed the district court, and remanded the case with instructions to hold an evidentiary hearing.


The opinion may have little precedential effect, because of the unusual procedural posture — the State forfeited its argument that the claim was barred.

Normally, a federal court reviewing a state prisoner’s habeas corpus motion would only grant the motion if the state acted contrary to clearly established federal law.

But until the U.S. Supreme Court decides Lafler, there is no clearly established federal law available for the state courts to act contrary to.

Nevertheless, it should give Wisconsin circuit courts pause before holding that a defendant is not entitled to an evidentiary hearing on whether his attorney was ineffective.

The court found that the state trial court denied a hearing because Kerr’s allegations were “merely conclusory or underdeveloped.”

The court then went on to say that the only reason the allegations are undeveloped is because there has been no evidentiary hearing.

It is safe to say defendants are denied evidentiary hearings in Wisconsin courts every day because their allegations of ineffective assistance of counsel are “merely conclusory or underdeveloped.”

In the wake of this opinion, courts might wish to reconsider that language, or when in doubt, err on the side of giving the defendant the evidentiary hearing he requests.

Case: Kerr v. Thurmer, No. 09-1032

Issue: Is it ineffective assistance of counsel to incorrectly advise a client of the sentence range if he accepts a plea bargain?

Holding: Yes. The advice is deficient, and if significant, it is prejudicial.

David Ziemer can be reached at [email protected]


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