APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA. HONORABLE KATHLEEN K. CALDWELL Judge.
The opinion of the court was delivered by: Sabers, Retired Justice
CONSIDERED ON BRIEFS NOVEMBER 3, 2008
[¶1.] Cornell McBride appeals the denial of habeas relief contending he received ineffective assistance of counsel based on counsel's failure to consult with him concerning the possibility of a direct appeal following his guilty plea to aggravated assault. We reverse and remand.
[¶2.] McBride engaged in a pattern of domestic violence against his girlfriend. This culminated in a vicious beating and stabbing that left her seriously injured. McBride was indicted for aggravated assault with a dangerous weapon, aggravated assault-physical menace, three counts of simple assault, grand theft, stalking and a part II information was also filed. Pursuant to a plea agreement, McBride entered a guilty plea to aggravated assault with a dangerous weapon. The plea agreement was "open" and McBride was aware his sentence could be up to a maximum of fifteen years in the penitentiary. McBride expressed concerns to his counsel about having to serve fifteen years in the penitentiary. After discussing the plea agreement and the exposure he faced for the charges, he agreed to accept the plea agreement. Counsel also discussed the possibility of a suspended sentence and although she indicated it was unlikely she argued for it at sentencing. The State advocated for the maximum term of imprisonment under the plea agreement and the circuit court sentenced McBride to fifteen years in the penitentiary. The sentencing judge did not inform McBride of his right to appeal.*fn1
[¶3.] Immediately after sentencing, McBride met with his attorney in the hallway outside the courtroom. Counsel testified that she briefly discussed the right to appeal with McBride and her notes reflected that she advised him of this right and that there were no issues for appeal. Counsel also testified that she and McBride were both emotional following the sentencing. She did not inform McBride he could challenge the sentence imposed. Counsel also never asked McBride if he wished to appeal. McBride testified that he had no recollection of any discussion concerning a right to appeal and it was his understanding that he could not appeal following a guilty plea. Both agree that the conversation following sentencing focused on seeking a reduction of sentence through a subsequent motion. The entire extent of this conversation was less than ten minutes. Thereafter, McBride sent a series of letters to counsel inquiring about having his sentence modified. Although counsel sent McBride a copy of the written judgment there were no further discussions concerning his right to appeal until thirteen months later when McBride asked counsel what he needed to do to file an appeal. This was after the motion to modify the sentence was denied.
[¶4.] McBride filed a habeas corpus action contending he received ineffective assistance of counsel based on counsel's failure to adequately consult with him concerning his right to a direct appeal from the sentence imposed. McBride claims he would have appealed if he had been adequately advised of that right. The habeas court found that counsel did not adequately consult with McBride concerning the appeal. That finding is not challenged on appeal. Although the habeas court found that "McBride admits he never told [counsel] he wished to appeal," the record demonstrates that counsel informed McBride he did not have any issues for appeal and counsel never asked him if he wished to appeal. McBride indicated he was not aware he had a right to appeal following his guilty plea and he provided no specific instructions to counsel concerning an appeal.
[¶5.] The habeas court found McBride had not identified an appealable issue and "that counsel was not constitutionally required to consult because [counsel] believed there were no nonfrivolous grounds for appeal." Therefore, under the circumstances and in the absence of a specific request to appeal, the habeas court determined McBride did not receive ineffective assistance of counsel. The habeas court denied relief and also a certificate of probable cause to appeal this issue. Because this Court has not previously addressed counsel's duty to consult with a client concerning the right to appeal as articulated by the United States Supreme Court in Roe v. Flores-Ortega , 528 US 470 (2000), this Court issued a certificate of probable cause allowing appeal in this matter.
[¶6.] Whether McBride's counsel was ineffective for failing to adequately consult with him concerning his right to direct appeal.
[¶7.] In Flores-Ortega , the United States Supreme Court established the paradigm for analyzing a claim of ineffective assistance of counsel based on a failure to file a notice of appeal. 528 US at 477-487. As a starting point, the Court recognized that "a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable." Id . at 477. "At the other end of the spectrum, a defendant who explicitly tells his attorney not to file an appeal plainly cannot later complain that, by following his instructions, his counsel performed deficiently." Id . As in Flores-Ortega , the question presented by this case falls between these two situations.
In those cases where the defendant neither instructs counsel to file an appeal nor asks that an appeal not be taken, we believe the question whether counsel has performed deficiently by not filing a notice of appeal is best answered by first asking a separate, but antecedent, question: whether counsel in fact consulted with the defendant about an appeal. We employ the term "consult" to convey a specific meaning-advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant's wishes. If counsel has consulted with the defendant, the question of deficient performance is easily answered: Counsel performs in a professionally unreasonable manner only by failing to follow the defendant's express instructions with respect to an appeal. If counsel has not consulted with the defendant, the court must in turn ask a second, and subsidiary, question: whether counsel's failure to consult with the defendant itself constitutes deficient performance. That question lies at the heart of this case: Under what circumstances does counsel have an obligation to consult with the defendant about an appeal?
We cannot say, as a constitutional matter, that in every case counsel's failure to consult with the defendant about an appeal is necessarily unreasonable, and therefore deficient. Such a holding would be inconsistent with both our decision in Strickland and common sense. For example, suppose that a defendant consults with counsel; counsel advises the defendant that a guilty plea probably will lead to a 2 year sentence; the defendant expresses satisfaction and pleads guilty; the court sentences the defendant to 2 years' imprisonment as expected and informs the defendant of his appeal rights; the defendant does not express any interest in appealing, and counsel concludes that there are no nonfrivolous grounds for appeal. Under these circumstances, it would be difficult to say that counsel is "professionally unreasonable," as a constitutional matter, in not consulting with such a defendant regarding an appeal. Or, for example, suppose a sentencing court's instructions to a defendant about his appeal rights in a particular case are so clear and ...