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It is Pellucid That the Praxis of Appealing a Plea is Arduous

By William Peacock, Esq. on January 28, 2013 | Last updated on March 21, 2019

It is enough to make you defenestrate your lunch. By going beyond the exigible using supererogatory vocabulary, Judge Selya just took the simple matter of appealing a plea bargain and made it far more complicated.

Glen Rivera-Orta pleads guilty to leading a drug ring. The plea calls for a few levels of enhancement and a downward departure. The judge sentences him to the nadir of the range. Like many defendants, he suffers buyers’ remorse shortly thereafter and tries to appeal. Only, he waived the right to appeal as part of the deal itself.

Waivers of appeal are presumptively enforceable and will be upheld so long as three elements are met. The plea agreement should have a clear statement elucidating the waiver and delineating its scope. Also, the judge should question the defendant specifically about his understanding of terms of the waiver and agreement, as well as inform him of its ramifications. Finally, the enforcement of the waiver should not result in a miscarriage of justice.

What was the defendant's asseveration?

He first argued that he was not adequately informed of the rights he was waving. However, the language of the plea deal and the judge's discussion of the terms (quoted in the opinion) were conspicuously clear, according to the court.

As for the miscarriage of justice argument, the issue must "involve an increment of error more glaring than routine reversible error." Unfortunately for our defendant, there probably wasn't even a harmless error. He claims that the leadership sentencing enhancement was unfounded. However, he stipulated to the enhancement in the plea and in court.

Conceding a point and later claiming that the court erred does not suffice for a miscarriage of justice.

The defendant also raised an interesting ineffective assistance of counsel issue. His lawyer was allegedly offered a ninety-five month deal but took too long in drafting the deal and accepting the plea. As a result, jury selection commenced and concluded and the prosecutor was no longer willing to offer anything less than 135 months.

Unfortunately for Rivera-Orta, issues of ineffective assistance of counsel have to be raised initially in front of the trial court, not on appeal, except in the rare instance when "the critical facts are not in dispute and the record is sufficiently developed to allow reasoned consideration of the claim." This wasn't one of those instances.

Note: pellucid, praxis, and the other italicized big words were all pulled from the actual judicial opinion. We're not sure if we're being judicially trolled, or if Judge Selya just really loves the thesaurus. Either way, well played.

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