April 10, 2013
Since the U.S. Supreme Court's ruling in Strickland v. Washington, 466 U.S. 668 (1984), it has been well settled that the Sixth Amendment guarantees to criminal defendants not simply the right to counsel but also the right to effective assistance of counsel. Under Strickland, a violation of the right to counsel may be shown if the defendant demonstrates that (1) counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment, and (2) the deficient performance prejudiced the defense.
In Hill v. Lockhart, 474 U.S. 52 (1985), the Court concluded that the Sixth Amendment right to effective assistance of counsel extends to the plea-bargaining process and that the test established in Strickland should be applied to the situation in which a defendant enters a guilty plea following plea negotiations. Until recently, the Court had not found that Strickland should apply when plea negotiations resulted in a defendant's refusal to plead guilty. However, in early 2012, in Lafler v. Cooper, 132 S. Ct. 1376 (2012), the Court squarely held for the first time that the test from Strickland should be used to judge defense counsel's advice during the plea negotiations, whatever the outcome, and stated that in the context of a plea offer that was rejected on advice of counsel, a defendant could establish prejudice with evidence that
but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.
Id. at 1385.
Such a multipart test obviously provides challenges with regard to the determination of prejudice, and the Court has recently indicated that it will revisit the issue of ineffective assistance of counsel in plea negotiations by agreeing to review the Sixth Circuit decision in Titlow v. Burt, 680 F.3d 577 (6th Cir. 2012). In Titlow, the Sixth Circuit granted the defendant's petition for a writ of habeas corpus under 28 U.S.C. § 2254 and thus reversed the rulings of both the U.S. District Court for the Eastern District of Michigan and the Michigan Court of Appeals, which each had found no constitutional violation of the defendant's right to counsel.
The facts in Titlow showed that the defendant, Vonlee Titlow, a transgender woman who had formerly been a man, was charged with the murder of her uncle, Donald Rogers. The evidence regarding the cause of death was unclear, as Rogers was found dead on the floor with a drinking glass in his hand. No autopsy was performed, and the medical examiner initially concluded that the cause of death was a heart attack. After Rogers's body had been cremated, however, the cause of death was amended on the basis of photographs of the body, which appeared to show that Rogers had been asphyxiated, based on the fact that there were small scrapes around his nose that were consistent with impressions made by a decorative woven pillow that was found in the house. Subsequently, police were informed by Titlow's paramour that Titlow had told him that Rogers's wife had asked Titlow to help kill Rogers and that when Titlow and Rogers's wife had found Rogers passed out on the floor, they poured vodka down his throat in hopes of bringing about his death. At some point, Titlow stopped and left the room, and Rogers's wife apparently then smothered Rogers. Later, through the use of a concealed recorder, police managed to obtain a recording of Titlow describing what had transpired.
Titlow and Rogers's wife were each charged with first-degree murder and were tried separately. Titlow's attorney immediately negotiated a plea agreement on her behalf, under which the State offered to reduce the charges to manslaughter, with a 7- to 15-year sentence, on the conditions that Titlow plead guilty, submit to a lie‑detector test, testify against Rogers's wife at trial, and not challenge the prosecutor's recommended sentencing range on appeal. At the following plea hearing, Titlow admitted the allegations against her, acknowledged her understanding of the penalty she faced, and entered her plea of guilt. The court accepted her plea and scheduled sentencing for a few months later.
While Titlow was in prison awaiting sentencing, she was told by a deputy sheriff that she should not plead guilty if she believed that she was innocent, and he referred her to an attorney who agreed to represent her in exchange for some jewelry and the media rights to her story. Based on the advice of the new attorney, Titlow filed a motion to withdraw her guilty plea, which was subsequently granted by the court in a plea‑withdrawal hearing. The conversations between Titlow and the deputy sheriff did not appear in the record of the hearing.
The record showed that Titlow's new attorney did not obtain Titlow's file, inspect the State's discovery materials, or speak with her former attorney about the case until approximately one and one-half months after the plea‑withdrawal hearing. Soon after viewing the file, the attorney moved to withdraw, citing a breakdown in communications and a lack of funds. The court granted that motion and appointed a new attorney for Titlow.
Because Titlow did not agree to testify against Rogers's wife, the State's prosecution against Rogers's wife was unsuccessful, and she was acquitted of the charges against her. Titlow was then tried, and the jury convicted her of second-degree murder, after which the court imposed a sentence of 20 to 40 years in prison. Titlow appealed, arguing that her counsel for the plea-withdrawal hearing had been ineffective by allowing her to withdraw her guilty plea, but the Michigan Court of Appeals rejected her appeal. People v. Titlow, No. 241285, 2003 WL 22928815 (Mich. Ct. App. Dec. 11, 2003) (unpublished). After the Michigan Supreme Court denied leave to appeal, Titlow filed a habeas corpus action in federal court. The district court denied Titlow's petition, No. 07-CV-13614, 2010 WL 4115410 (E.D. Mich. Oct. 19, 2010), but issued a certificate of appealability.
In ruling that Titlow had indeed been prejudiced by ineffective assistance of counsel during withdrawal of her guilty plea, the Sixth Circuit found that the evidence did not support the state court's conclusion that Titlow had been advised to withdraw her plea based on a claim of innocence but, rather, demonstrated that the decision to withdraw her plea was based on the fact that the State's plea offer was substantially higher than the Michigan guidelines for second‑degree murder. The court further concluded that the record contained no evidence that Titlow's attorney explained the elements necessary for the State to secure a conviction, discussed the evidence as it bore on those elements, or explained the sentencing exposure she would face as a consequence of exercising each of the options available. In fact, the court found, the evidence showed that the attorney had not even bothered to familiarize himself with the details of the case before counseling Titlow to withdraw her plea. The court therefore concluded that the attorney had failed to fulfill his clear obligation to provide sufficient advice to Titlow during the plea‑negotiation stage.
With regard to prejudice, the court found that the test in Lafler had been satisfied because (1) the plea offer was presented to, and accepted by, the state trial court at Titlow's initial plea hearing; (2) the sentence that Titlow ultimately received was nearly three times the punishment that she had been offered under the plea agreement; and (3) Titlow's position that she would have accepted the plea offer but for her attorney's intervening advice is bolstered by the fact that she had actually accepted the plea on the record at her initial plea hearing.
The court noted that the remedy to which Titlow was entitled was complicated by the fact that under the plea bargain, she entered a guilty plea to manslaughter, whereas she was found guilty at trial of second-degree murder. In such circumstances, the court found, Titlow did not simply suffer the injury of a higher sentence. Moreover, because Titlow did not plead guilty pursuant to the agreement, she did not testify against Rogers's wife, and thus the State lost its main benefit of the bargain. The court ultimately determined that because the initial plea offer to Titlow was to a lesser‑included offense instead of the offense of conviction, it would conditionally grant the petition for a writ of habeas corpus and give the State 90 days to reoffer Titlow the original plea agreement or, failing that, to release her. The court further directed that if the State in fact were to reoffer the plea agreement and Titlow were to accept, the state court could then exercise its discretion to fashion a sentence for Titlow that both remedied the violation of her constitutional right to the effective assistance of counsel and took into account any concerns that the State might have regarding the loss of Titlow's testimony against her aunt.
As noted above, the State sought review of the Sixth Circuit's decision, and the Supreme Court has agreed to consider three questions arising from the case: (1) whether the Sixth Circuit failed to give appropriate deference to the Michigan state court in holding that defense counsel was constitutionally ineffective for allowing Titlow to maintain a claim of innocence; (2) whether a convicted defendant's subjective testimony that he or she would have accepted a plea but for ineffective assistance is, standing alone, sufficient to demonstrate a reasonable probability that the defendant would have accepted the plea; and (3) whether Lafler always requires a state trial court to resentence a defendant who shows a reasonable probability that he or she would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to "remedy" the violation of the defendant's constitutional right. The resolution of these issues by the Court should provide lower courts with more guidance as to how to remedy the prejudice suffered by a defendant who withdraws from a plea offer because of bad advice from counsel.