How Many Law Blogs Are There?
Justice Omerta

I suppose ....

I suppose the Second Circuit's decision this week in Campusano v. United States, 04-513-pr, is good law. It certainly makes conceptual sense. But, oh, what havoc it will wreak on unwary counsel.

Consider: You represent a criminal defendant. Your client decides to enter a plea. The parties agree that if the sentence does not exceed a certain range, the client has waived the right to appeal. The client is canvassed half to death and the judge concludes that the waiver was made knowingly, voluntarily and with the assistance of competent counsel. Come sentencing day, the client gets a sentence below the range that would trigger a right to appeal.

Case closed?

No. Should the client ask that you file a notice of appeal, you must do so, even if you believe there is no merit to the claim; even if you believe that the plea agreement just perfected bars an appeal; even if all that is foreseeable is an Anders brief in which you recite all the reasons why your client's claim has no merit.

Campusano holds that it is ineffective assistance of counsel to fail to file the notice of appeal. That's because the Supreme Court in Roe v. Flores-Ortega, 528 U.S. 470 (2000) has previously held it is per se ineffective assistance of counsel to file a requested notice of appeal.

This decision puts trial counsel in a difficult box. If you believe you have done your job and adequately advised your client, then isn't filing a notice of appeal conflict laden? Can you be a zealous advocate when ab initio you believe the claim frivolous? And if your client is right and the plea was defective, well whose fault was it to let that happen?

Here are the keys out of that box: Never attend a sentencing after a negotiated plea containing a waiver without a blank notice of appeal and a motion for waiver of fees and costs. After sentencing, have your client sign them and offer to file them if he or she elects an appeal. Let the Second Circuit find someone to write a brief saying your client's claim has no merit or that you were ineffective for permitting an illegal plea.