Metropolitan News-Enterprise


Monday, January 11, 2010


Page 3


C.A.: Defendant’s Plea Waiver No Bar to Ineffective Assistance Claim


By STEVEN M. ELLIS, Staff Writer


An ineffective assistance of counsel claim resulting from the making of a plea agreement waiving appellate rights cannot be barred by the agreement produced by the alleged ineffectiveness, the Fifth District Court of Appeal ruled Friday.

Holding that ineffective assistance rendered when a defendant enters a plea or receives advice regarding a waiver requires a finding that the plea was not entered knowingly and voluntarily, the court said a Fresno County man can withdraw his plea to second-degree murder.

Daniel Rodriguez Orozco entered a no contest plea with a firearm enhancement and a gang enhancement in 2008 in the face of a first-degree murder charge over the shooting death of Elliot Flores in 2006.

In addition to the standard waiver of rights and plea form, Orozco agreed to sign as part of his plea bargain an all-encompassing “Waiver of Appellate Rights” waiving all issues in the case, both prior to the entry of the plea and subsequent to the plea agreement.

The waiver included any right to a direct appeal as well as Orozco’s right to collaterally attack any issue of fact or law. It also purportedly waived Orozco’s right to allege he received ineffective assistance of counsel, including any advice regarding the plea agreement, and contained a clause waiving the right to withdraw the guilty plea.

At sentencing, Orozco requested a continuance to retain private counsel and sought to move to withdraw his plea, but Fresno Superior Court Judge Jonathan B. Conklin denied the request, reasoning that Orozco waived such rights at the time of his plea. The judge then sentenced Orozco to 15 years to life in prison under the terms of the plea agreement.

On appeal, Orozco contended the trial court erred in failing to consider his motion to withdraw his plea, failing to hold a closed hearing to allow him to articulate his concerns regarding his appointed counsel, and in failing to grant a brief continuance to allow him to retain counsel.

He asserted the issue was not resolved by the waiver because it was not knowingly and intelligently made and the court, in an opinion by Justice Steven M. Vartabedian, agreed.

Vartabedian explained:

“[F]ederal authorities have consistently held ‘that a criminal defendant could not waive the right to bring a claim for ineffective assistance of counsel in which he alleges ineffectiveness at the time he was entering the plea or ineffectiveness related to advice he received regarding the waiver.’ ”

The justice also said that Orozco could not be faulted for failing to adequately specify the grounds for his motion to withdraw his plea because he was precluded from making any showing based the belief held by counsel and the trial court that he had waived his right to make such a motion.

“[T]he waiver agreement did not preclude defendant from seeking a continuance nor did it preclude him from retaining private counsel to represent him in further motions,” the justice commented. “Even if his waiver agreement is interpreted to preclude him from raising on appeal an issue regarding a continuance or the retention of private counsel…the trial court cannot abdicate its own statutory and constitutional duties to rule on motions properly brought merely because defendant may not be able to raise those errors on appeal.”

Justices Rebecca A. Wiseman and Gene M. Gomes joined Vartabedian in his opinion.

The case is People v. Orozco, 10 S.O.S. 83.


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