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Dr. Nick Oberheiden

Aaron Wiley
Former State &
Federal Prosecutor

S. Amanda Marshall
Former U.S. Attorney

Bill McMurrey
Former DOJ-Trial Attorney

Lynette Byrd
Former Assistant
U.S. Attorney

  • Federal Criminal Defense
  • Federal Trial Lawyers
  • Search Warrant Defense
  • Grand Jury Subpoenas
  • OIG Subpoenas
  • Whistleblower Cases
  • FBI, DEA, IRS, OIG, HHS Cases
Can I Appeal a Plea Agreement?

Categories: Appeals

Judge's Gavel

At times, a defendant agrees to a plea deal that he later realizes may not have been his best choice. However, most plea bargains prevent you from filing an appeal. In this circumstance, you may seek to appeal your conviction and sentence by alleging that your lawyer was ineffective in the plea deal that he negotiated with the prosecutor.

To prove ineffective assistance, a defendant must show (1) that his or her trial lawyer’s performance fell below an “objective standard of reasonableness” and (2) “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668 (1984).

Thus, there is a two-prong test for ineffective assistance of counsel. First is the “deficient performance prong,” which requires proof that your lawyer’s performance was deficient viewed on an objective standard. Second is the “prejudice prong,” in which you must prove that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

In Hill v. Lockhart, 474 U.S. 52, 59 (1985), the Supreme Court held that the two prong Strickland standard is applicable to ineffective-assistance claims arising out of the plea process. Hill claimed his guilty plea was induced by false information about his parole eligibility. The Court held that if a defendant claims that he pleaded guilty because of ineffective assistance of counsel, the second prong of the Strickland test would be satisfied by showing “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”

More recently, in Missouri v. Frye, 132 S. Ct. 1399 (2012), the Supreme Court affirmed that the right to effective assistance of counsel applies at the plea bargaining stage. Lawyers may be found ineffective when they fail to communicate plea offers to their clients. Again, though, the defendant must prove by a reasonable probability that he would have accepted the plea and that the Court would have accepted it.

Although the standard for showing ineffective assistance of counsel is clear, in practice it can be very difficult to convince a court to accept such an argument. For example, in Fields v. Gibson, 277 F.3d 1203 (10th Cir. 2002), one of the defendant’s attorneys was told by the trial judge in an ex parte conversation that if the facts were as represented, the judge would “very, very, very seriously consider” giving the defendant life or life without parole. Based on that conversation, defense counsel advised and strongly encouraged her client to enter a “blind” guilty plea, in which no sentence was promised. The judge sentenced the defendant to death. The court of appeals denied the ineffective assistance of counsel argument, ruling that the attorney did not coerce the defendant into accepting the plea, but merely couched their advice in terms of the probability of the outcome. Specifically, the attorney did not tell the defendant that she had obtained an assurance that by pleading guilty the defendant would not receive a death sentence.

If you believe that your plea agreement was improperly induced by ineffective assistance of counsel, you should seek legal advice immediately. The attorneys at Oberheiden, P.C. can assist you in analyzing the merits of your appeal. Contact us today.