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Collateral attack on plea fails; no evidence of plea deal defendant claims induced him to plead

James R. Todd v. Kess Roberson, 7th Circuit Cout of Appeals Case No. 14-3430, 2016 WL 3568107, 7/1/16

Todd claims his trial lawyer was ineffective for inducing him to plead to a charge carrying a minimum of 6 years and a maximum of 60 years in exchange for the state capping its sentencing recommendation at 10 years when there was no such cap. His claim fails because the record shows he understood there was no 10-year cap.

The record of the plea hearing makes clear Todd entered an “open plea,” which is a plea not conditioned on sentence length, and was informed of the 6 and 60 parameters. Moreover, both trial counsel and the prosecutor later agreed there was discussion of a 10-year cap, but no agreement on it, because the prosecutor thought 10 years wasn’t enough time—although trial counsel may have mistakenly believed at some point there had been an agreement to that effect. On these facts, Todd fails to sufficiently allege or show his plea was invalid:

There is no doubt that Radakovich [trial counsel] had fabricated (we don’t know whether deliberately or because of a failure of memory) the 10–year sentence cap; he confused his proposing it to the prosecutor with the prosecutor’s accepting it. If as a consequence of Radakovich’s fabrication Todd had pleaded guilty rather than invoke his right to a trial at which he might conceivably (if improbably) have been acquitted, he might have a claim to have been harmed by ineffective assistance of counsel and to be entitled therefore to a do-over of his state-court proceeding that had culminated in the 25–year sentence. See Strickland v. Washington, 466 U.S. 668 (1984); Hill v. Lockhart, 474 U.S. 52 (1985); cf. 28 U.S.C. § 2254(d). But his briefs nowhere mention the possibility of an acquittal, nor has he ever presented evidence that he would have gone to trial had it not been for his belief (if he did believe) that by pleading guilty he would get his sentence capped at 10 years. It’s true that he’d said that he “would have never pled guilty to an open six to 60,” and if he hadn’t pleaded guilty he would have gone to trial, but his statement was bluster: he did “plead guilty to an open six to 60.”

(Slip op. at 5-6).

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