This case involved two plea agreements that included clauses stating that Garza waived his right to appeal. After sentencing, Garza told his lawyer that he wanted to appeal, but his lawyer refused due to the plea agreement. Garza filed claim for ineffective assistance of counsel. Siding with Garza, SCOTUS held that counsel performed deficiently and that “prejudiced is presumed” because the failure to file a notice of appeal deprived Garza of an appeal altogether. Opinion at 1.
But what about the appeal waiver in the plea agreement? SCOTUS held that “no appeal waiver serves as an absolute bar to all appellate claims.” Id. at 4. The language used in appeal waivers can vary widely. The waiver applies only to appeals within its scope. At a minimum, a defendant retains the right to challenge whether the waiver itself was valid and enforceable. Id. at 5.
SCOTUS further held that the client gets to decide whether to file a notice of appeal and the mere filing of one does not necessarily breach the plea agreement. Id. at 8.
Bottom line: Roe v. Flores-Ortega, 528 U.S. 470 (2000) held that when an attorney’s deficient performance costs a defendant an appeal he otherwise would have taken, the court must presume prejudice without requiring the defendant to show that his underlying claims had merit. This principle also applies when the defendant enters a plea agreement which states that he “waives his right to appeal.”
Our post on the cert grant in Garza here noted that while federal plea agreements may include appeal waivers, Wisconsin plea agreements typically do not. On the other hand, in Wisconsin §809.30 postconviction motions are sometimes resolved through settlements that include appeal waivers. Query whether Garza might apply to this situation?