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NACDL
Federal Bar Association
Virginia State Bar
Department of the Army
VACDL

Waiver of issues at trial

A waiver of issues at trial can prejudice an appeal.

Addressing the matter here, we note at the outset that our general duty to construe ambiguities in an appeal waiver in the defendant’s favor is especially salient in the context of claims alleging ineffective assistance of counsel.

Most military pretrial agreements (PTA) require you waive all waivable motions?Unusually, there might be a case where there is a conditional waiver.

In United States v. Gladue, 67 M.J. 311 (C.A.A.F. 2009), the court held that the waiver provision was just that, a waiver of issues which prevents litigation on appeal.In United States v. Hardy, 77 M.J. 438 (C.A.A.F. 2018), the court went further and held that an unconditional plea of guilty waives all waivable motions, even though there was no PTA clause.

However, I think there’s an argument that ineffectiveness of counsel (IAC) is not waived by the standard clause, certainly not as to IAC on sentencing.You are not going to know that your trial defense counsel was ineffective until after trial and after an appellate defense lawyer has reviewed your case—so how can you knowingly and voluntarily waive IAC.I think the proper analysis is to consider the waiver as effective as to only those issues prior to commencement of the providence inquiry.I am supported by a recent case from the District of Columbia Circuit Court of Appeals: In re: Sealed Case, No. 16-3005 (D.C. Cir.Aug. 17, 2018).The court said,

Often, when a criminal defendant agrees to plead guilty, he also agrees to waive his right to take an appeal or seek collateral review after he is sentenced. The appeal waiver generally precludes him from bringing an appeal on any as-yet-unknown claim that might arise in his upcoming sentencing proceedings. So, for instance, if the defendant comes to believe that the trial court committed an error in determining his sentence, his appeal waiver generally would bar him from appealing on that ground.

Slip op. at 1.The court cites to United States v. Adams, 780 F.3d 1182, 1184 5 (D.C. Cir. 2015) (quoting United States v. Andis, 333 F.3d 886, 892 (8th Cir. 2003) (en banc)). Keep in mind that the court notes that there is a circuit split where other circuit courts have issued opposite ruling.Slip op. at 12.

The court asks the question, “Suppose the attorney’s performance in the sentencing proceeding is so poor that it violates the defendant’s Sixth Amendment right to counsel. Does a defendant’s generic appeal waiver encompass a claim that he received ineffective assistance of counsel in connection with his sentencing?”The court concludes that the waiver provision should not apply and that the appeals court may remand the alleged IAC to the trial court for further consideration.

At trial, an important consideration in negotiating a PTA is the waiver provision.Not all convening authorities will agree to a conditional waiver of a motion.But I do know, from experience, that some will agree to a conditional waiver of a motion to suppress evidence.Agreement depends on the leverage you have when negotiating a PTA and whether the government considers it worth the risk of a reversal on appeal.In other words, how good is the motion to suppress.

For trial defense counsel the court points to an interesting conflict of interest for an attorney.Slip op. at 12.

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