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Failure to Consult MJ Farmer on Appeal is Ineffective Assistance

By Brett Snider, Esq. on July 11, 2013 | Last updated on March 21, 2019

Jaded lawyers and criminal defendants might think that it is nearly impossible for a court to find ineffective assistance of counsel in a criminal case.

Not so, says the Fifth Circuit in U.S. v. Pham, you can be found ineffective when you totally neglect to tell your client about the option to directly appeal your sentence, even if done under a plea bargain!

Vietnamese Pot Farmer Takes Deal

Cong Van Pham was charged and sentenced for five years in prison for growing over 700 pot plants in order to raise money to pay for his wife's brain cancer treatment.

In a case that is basically the Texan and Vietnamese mashup between "Breaking Bad" and "Weeds," the Fifth Circuit focused on the district court's denial of Pham's claim that his attorney had provided ineffective assistance of counsel by refusing to consult him on his right to a direct appeal of his sentence.

Pham had to break into the appeals process by using a habeas petition because he failed to file a timely appeal after his sentencing.

To Appeal or Not To Appeal

In a fairly by-the-numbers analysis, the Pham Court applied the Strickland standard and determined whether Pham's counsel:

  1. Was unreasonable for not consulting Pham on appeal
  2. Prejudiced Pham by his failure to consult.

Luckily for the Fifth Circuit, there's also a Supreme Court case directly on point; in Roe v. Flores-Ortega the Court considered precisely how the Strickland test would apply to consulting a defendant about an appeal.

Counsel used "Do Nothing" ... It's Not Very Effective

Under the Flores-Ortega framework, failure to consult a defendant about an appeal is ineffective assistance of counsel if:

  1. Counsel has a duty to consult defendant on appeal and
  2. Defendant would have filed a timely appeal otherwise

The record stands in Pham that Pham's attorney did not do anything to consult or inform Pham of his right to appeal his sentence, and the fact that Pham asked his attorney what he could do next is sufficient to create a duty to consult on appeal.

The Pham Court does not require an unsophisticated defendant to utter the word "appeal" for the desire to appeal to be expressed, and counsel should not forget the ethical rules requiring proper communication with his client.

Plea Bargain Appeal Waiver

Other attorneys have slipped the noose of ineffective assistance even if they failed to give a "blow by blow" of sentencing conditions in the face of a plea bargain, and Pham did waive his right appeal in his plea bargain.

However, in another decision that makes one doubt the efficacy of any appeal waiver, the Fifth Circuit believes that second prong of Flores-Ortega applies even where "defendant has waived his right to direct appeal." The Fifth Circuit opined that failing to tell your client about the right to a direct appeal, despite an appeal waiver, is prejudicial, and in Pham's case, he should be allowed to proceed on his appeal in light of his attorney's ineffective assistance.

Bottom Line

Any attorney worth their salt should inform a client about their right to appeal when it's timely.

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