Monday, August 15, 2005

No IAC Claim Available When Counsel Acts Pursuant to Defendant's Foolish Wishes

United States v. Dennis Wellington, Docket No. 04-3198-cr (2d Cir. August 3, 2005) (Op. by Cabranes): The addage that a lawyer who represents himself has a fool for a client applies equally to a defendant who, though represented by counsel, insists that counsel abide by his every whim regarding trial strategy, regardless of how illogical or foolish. In this case, the defendant was charged with illegal reentry and, after several failed pretrial motions to dismiss the indictment, insisted on proceeding to a bench trial on stipulated facts. Counsel told the court that defendant wished to do so because of a desire to preserve certain issues for appeal without foreclosing the possibility of an acceptance-of-responsibility reduction at sentencing. Defendant executed a written waiver of his right to a jury trial, and then stipulated in writing to every element of the charged offense.

The court of course found the defendant guilty. Before sentencing, the PSR recommended denial of the acceptance reduction, to which counsel objected. Subsequently, however, counsel stated that he no longer objected to the PSR, based specifically on his client's wishes. Counsel told the court that he did not agree with the defendant's "reasons" for these wishes, but acted as defendant instructed. The court did not award the acceptance reduction.

Represented by new counsel, Wellington raised numerous issues on appeal. First, he claimed that trial counsel was ineffective for entering into a stipulated bench trial, with a view to obtaining the acceptance-of-responsibility reduction, and then waiving the right to seek an acceptance reduction at sentencing. The Court agreed that this "was an ill-advised and wholly ineffective trial strategy." Op. at 6. However, "defendant's counsel did not devise this strategy himself." Rather, he "entered the stipulation and waived defendant's right to seek an offense-level adjustment because defendant instructed him to do so." Id. at 6. This was critical, since the Supreme Court had held in Cronic that no IAC claim lies, even when counsel "entirely fails" to put on a defense at trial, where counsel's actions followed upon the defendant's specific instructions, counsel advised defendant of the probable consequences of such actions, and the defendant was competent to make such a decision. Thus, since Wellington "instructed his counsel to pursue a course of action that defendant now complains of, there was no abridgement -- constructive or otherwise -- of [his] Sixth Amendment right to effective assistance of counsel." Op. at 8.

Second, the Court rejected defendant's claim that a Rule 11 colloquy was required before the district court accepted his stipulation to each element of the charged reentry offense at the bench trial. The Court "join[ed] [its] sister circuits in recognizing that the full panoply of Rule 11 procedures are not necessary where a defendant stipulates to facts establishing guilt." Op. at 10. Rather, a district judge need only ensure "(1) that the stipulation is voluntarily made and (2) that the defendant understands the consequences of his stipulation." Op. at 11.


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