United States v. Pleitez, 5th Cir., filed 11/22/17: Increase in Restitution Award Without the Assistance of Counsel Reversed; Restitution Increase “Critical Stage” of Criminal Proceeding.
This is an interesting case addressing the fundamental right to an attorney at all “critical stages” of a trial proceeding. I don’t believe I’ve seen this particular issue arise before, so it caught my attention. This is an immensely important decision for criminal defendants facing mandatory restitution obligations.
Pleitez pleaded guilty to a number of charges that required restitution for its victims. There were a number of issues concerning the amount due for reasons not particularly relevant to this legal claim. In this ongoing dispute regarding the restitution due, the probation department ultimately filed four amended pre-sentence reports that calculated the amounts owed. Pleitez repeatedly objected to these amounts.
Pleitez was represented by counsel who withdrew after he was sentenced, and after the probation department had filed its Third Amended PSR. Nine days later, Pleitez was appointed counsel for his appeal. As a part of his plea agreement, Pleitez agreed to standard terms and conditions which waived his right to challenge his conviction and sentence on direct appeal, or upon collateral review. An exception was made for claims of ineffective assistance of counsel. While Pleitez was not represented– during this 9-day window– the probation department filed its Fourth Amended PSR. The district court judge adopted the probation department’s recommendation and entered a restitution award to the victims that was substantially higher than the previous amounts.
Pleitez appealed. The government attempted to enforce the appellate waiver, but the Fifth Circuit addressed the issue of the restitution award because it found that the denial of counsel is properly characterized as an ineffective assistance of counsel claim. See United States v. Cronic, 466 U.S. 648, 654 (1984). Cronic, not The Chronic! The denial of counsel during a “critical stage” deprived Pleitez of his Sixth Amendment right to counsel, a claim that falls within the appeal waiver exception.
The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of Counsel for his defense.” U.S. Const. amend. VI. This right is not limited to the trial itself; an accused is entitled to the assistance of counsel at all “critical stages” of criminal proceedings. Montejo v. Louisiana, 556 U.S. 778, 786 (2009). “The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding.” Strickland v. Washington, 466 U.S. 668, 691-92 (1984). Thus, an accused is entitled to assistance of an attorney who plays the adversarial role necessary to ensure that the proceeding itself is fair. Id.
Normally with ineffectiveness claims, a defendant has to show prejudice. Not so with a Cronic claim: “[A] trial is unfair if the accused is denied counsel at a critical stage of his trial,” and no showing of prejudice is required. Id. at 659.
A stage is considered “critical” where circumstances indicate that counsel’s presence is necessary to ensure a fair process. See Rothgery v. Gillespie Cty., Tex., 554 U.S. 191, 212 (2008).
The Court held that a final determination of a mandatory restitution award under 3664(d)(5) constitutes a critical stage during which a defendant is entitled to the assistance of counsel. Defendants need a lawyer’s assistance, and a final determination of a restitution award implicates a defendant’s substantial rights. The Court concluded that because Pleitez did not have a lawyer when the district court considered and accepted the Fourth Addendum to the PSR, he was effectively denied any opportunity to object or allocate when his sentence was enhanced. “Pleitez’s substantial rights were at issue– he faced a criminal sentence– and he required the assistance of counsel in a trial-like setting– sentencing.”
The Court remanded for further proceedings consistent with the opinion. There’s a lot of great language in this opinion regarding Cronic claims for those looking to press this issue in your own cases. Good Cronic claims are rare, so this is a useful one to keep on hand.