HIDDEN RIGHT TO DIRECT APPEAL FROM A FEDERAL PLEA CONVICTION

• NCJ Number: 58036
• Journal: Cornell Law Review Volume: 64 Issue: 2 Dated: (JANUARY 1979) Pages: 319-374
• Author(s): P D BORMAN
• Date Published: 1979
• Length: 56 pages
• Corporate Author: Cornell University
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

A STUDY OF RULE 32A(2) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE SHOWS HOW DEFENDANT'S RIGHTS ARE VIOLATED THROUGH DENIAL OF DIRECT APPEAL AFTER ENTERING A PLEA OF GUILTY OR NOLO CONTENDERE.

Abstract

THE ARTICLE ILLUSTRATES HOW THE RIGHT OF DIRECT APPEAL AFTER SENTENCING IS DENIED TO DEFENDANTS PLEADING GUILTY OR NOLO CONTENDERE IN FEDERAL COURTS. RULE 32(A)(2) OF THE FEDERAL RULES OF CRIMINAL PROCEDURE ABSOLVES FEDERAL JUDGES OF THEIR OBLIGATION TO INFORM A DEFENDANT OF HIS RIGHT TO DIRECT APPEAL, AND FURTHER, MANY JUDGES (26 PERCENT) WHEN SURVEYED, ADVISED DEFENDANTS THAT THEIR GUILTY PLEAS HAD VOIDED THE RIGHT TO APPEAL. A SURVEY OF 364 FEDERAL JUDGES REVEALED THAT 85 PERCENT (310) FOLLOWED THE SPIRIT OF THE RULE AND DID NOT INFORM DEFENDANTS OF THEIR RIGHT TO DIRECT APPEAL, SIGHTING SUCH REASONS AS NOTIFICATION WOULD LEAD TO FRIVOLOUS APPEALS CLOGGING ALREADY CROWDED DOCKETS, OR SUCH INFORMATION WOULD TEND TO CONFUSE THE DEFENDANTS. THUS, IT BECOMES THE OBLIGATION OF DEFENSE COUNSEL TO INFORM DEFENDANTS OF THEIR RIGHTS; HOWEVER, FEW ATTORNEYS ARE WILLING TO DO SO SINCE SUCH A DISCLOSURE MIGHT EVENTUALLY SUPERSEDE COUNSEL'S EFFORTS OR MIGHT, MORE FUNDAMENTALLY, QUESTION THE COMPETENCY AND INTEGRITY OF COUNSEL. FAILURE OF THE PLEA-CONVICTED DEFENDANT TO FILE AN APPEAL WITHIN 10 DAYS INVALIDATES HIS RIGHT TO A THREE JUDGE PANEL OF THE COURT OF APPEALS, AND RESTRICTS THE GROUNDS FOR REVERSAL FOR ERRORS OF CONSTITUTIONAL, JURISDICTIONAL, OR FUNDAMENTAL MAGNITUDE. FURTHER, RULE 32(A)(2) DOES NOT ENTITLE AN INDIGENT DEFENDANT TO A COURT APPOINTED ATTORNEY NOR TO THE TRANSCRIPT OF LOWER COURT PROCEEDINGS. SUCH PROCEDURES WOULD INDICATE THAT THE PLEA-CONVICTED INDIGENT HAS BEEN DENIED DUE PROCESS UNDER THIS RULE SUGGESTING, THEREFORE, A NEED FOR SEVERAL RECOMMENDATIONS TO HELP ELIMINATE THE INEQUITIES NUTURED BY RULE 32(A)(2). SUCH RECOMMENDATIONS INCLUDE THE FOLLOWING: (1) INFORM FEDERAL JUDGES OF THE RIGHT TO AN APPEAL OF A PLEA CONVICTION, (2) INSURE THAT DEFENSE COUNSEL INFORMS PLEA-CONVICTED DEFENDANTS OF THEIR RIGHT OF APPEAL, AND (3) REVISE THE FEDERAL RULES OF CRIMINAL PROCEDURE TO ALLOW FOR DIRECT APPEAL OF PLEA CONVICTIONS. FOOTNOTES AND AN APPENDIX ARE PROVIDED. (TWM)