Defendant plead guilty to a felony DWI and was sentenced to 5 years in prison. The plea deal involved the state dropping 2 other charges against defendant and allowing this sentence to run concurrently with another sentence already imposed against defendant.
Defendant later filed post conviction relief arguing that his lawyer provided ineffective assistance by advising defendant that with good behavior he would only serve 40% of the sentence. Defendant’s motion was denied.
The Constitution promises criminal defendants a right to a lawyer; it does not promise a right to a great lawyer. In order to prevail on a claim of ineffective assistance of counsel, a movant must show: 1) Counsel failed to exercise the customary skill and diligence that reasonably competent attorney would exercise in similar circumstances, AND 2) that Counsel’s failure caused movant prejudice. To put that in simpler words, someone complaining of ineffective assistance of counsel must show his lawyer acted incompetently and that this incompetence was the cause of injustice. Thus, if a lawyer slept through a defendant’s trial, that would be incompetence, but if there was plenty of evidence to prove defendant’s guilt, said sleeping through defendant’s trial would not have necessarily caused the defendant an injustice, and thus, defendant would probably lose an argument about ineffective assistance of counsel.
Here, there was never a trial but rather just a guilty plea, and as such, a claim of ineffective assistance of counsel is immaterial except to the extent that it infringes upon the voluntariness and knowledge with which the plea was made. It is not required that a defendant be informed about eligibility for parole for a plea to be entered voluntarily and intelligently (however, there is authority for the proposition that misinforming (as opposed to failing to inform) a defendant about eligibility for parole may undermine the voluntariness of the plea). As a golden rule, the expectation that a movant will receive a lesser sentence or a disappointed hope of a lesser sentence does not make a plea involuntary.
In the end, the Court ruled that defendant failed to demonstrate that his previous counsel’s alleged misadvice rendered defendant’s plea involuntary and unknowing. What you need to know: if you voluntarily and knowingly plea guilty to a crime you will lose subsequent complaints about the effectiveness of your lawyer.
Gapske v. State, No. 31404 (Mo. App. S.D., February 9, 2012).