Saturday, March 11, 2006
Hopefully todays case will relieve counties of the need to appoint costly post conviction counsel to pursue claims of ineffectiveness when defendants who pled guilty receive lawful and justifiable sentences and did not file timely but frivolous appeals. Nebraska Supreme Court (J Wright) rules that for defendants to receive direct appeals there should be nonfrivolous grounds for appeal that would indicate a defendants interest in an appeal.State v. Wagner, 271 Neb. 253 Filed March 10, 2006. No. S-04-1104. Defendant sentenced on a plea bargain to prison for murder sought post conviction relief to file a direct appeal. Trial court found no expressinterest from defendant to appeal and overruled motion. Following Supreme Court Roe v. Flores Ortega case, court rejects "bright line rule" to order an appeal every time a defendant belatedly requests one. Instead the standard must be "reasonable probability" that the defendant would have requested appeal, especially if there were non-frivolous issues to appeal. Roe v Flores Ortega set the standard for effectiveness of counsel on whether to appeal a conviction to be "when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." Likewise Flores-Ortega standard for prejudice in causing the forfeiture of appeal is "a reasonable probability that, but for counsel’s deficient failure to consult with him about an appeal, he would have timely appealed." To show prejudice related to the failure to file an appeal, "a defendant must demonstrate that there is a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed." Roe v. Flores-Ortega, 528 U.S. 470, 484, 120 S. Ct. 1029, 145 L. Ed. 2d 985 (2000). Whether a defendant meets his burden depends on the facts of a particular case. "[E]vidence that there were nonfrivolous grounds for appeal or that the defendant in question promptly expressed a desire to appeal will often be highly relevant in making this determination." 528 U.S. at 485.But such evidence alone is insufficient to establish that, had the defendant received reasonable advice from counsel about the appeal, he would have instructed his counsel to file an appeal. Roe v. Flores-Ortega, 528 U.S. at 486. Wagner's sentences were within the statutory ranges. Sentences within statutory limits will be disturbed by an appellate court only if the sentences complained of were an abuse of judicial discretion. State v. Cook, 266 Neb. 465, 667 N.W.2d 201 (2003). Wagner had no nonfrivolous basis for an appeal, and thus, he has not shown that he was prejudiced by the fact that no appeal was filed. He also has not shown there was a reasonable probability that he would have timely appealed but for the fact that counsel did not specifically consult with him about an appeal.
Posted by stan_sipple at 12:39 AM