Leach v. StateLeach v. State
Theodore J. Leach appeals his conviction of grand theft after a jury trial.
The jury found Leach guilty as charged of grand theft. The court orally sentenced him to one year and one day in prison, followed by two years of probation, with the special condition of restitution to the victim. The defense requested a one week furlough so that Leach could travel to California and get his affairs in order before surrendering to serve his sentence. The court agreed to the request and proposed a form of sentence that would accommodate Leach, so long as he returned the following week.
At that point, the victim indicated that he did not want Leach to go to jail; all the victim wanted was his money back. After conferring with the victim, the prosecutor recommended a sentence of 30 days in jail, followed by probation, provided that Leach waive his right to appeal the conviction. The court allowed Leach to consult with his attorney and negotiate with the state, off the record.
After negotiations, defense counsel announced that the state was willing to recommend a sentence of five years’ probation, with no jail time, if Leach waived his right to appeal. Counsel had reservations about waiving the right to appeal, but indicated that Leach had agreed to the state‘s offer:
Defense Counsel: I desperately don‘t want to waive his right to appeal. I feel very strongly that the conviction would be reversed. However, if that‘s what he wants to do and he, I explained it to him now. He understands the risks and whatnot. I don‘t want to waive his right to appeal and then have the Court impose a jail sentence. I don‘t want to get caught up in that kind of procedural type of thing.
The Court: You‘re saying he will agree to waive his right to appeal if the Court sentences him to straight probation?
Defense Counsel: Yes, judge.
The court then questioned Leach and determined that he had had enough time to consult with his lawyer and that he understood the ramifications of waiving his right to appeal. Pursuant to the negotiations, the court sentenced Leach to five years’ probation with the special condition of restitution of $4,871. The judge told Leach that he was waiving his right to appeal.
Nonetheless, Leach filed this appeal in which he challenges the sufficiency of the evidence at trial to support his conviction. He argues that (1) he “did not directly, expressly, or sufficiently” waive his right to appeal, and (2) the waiver was not freely or voluntarily entered.
“While our supreme court has recognized that criminal defendants have no federal constitutional right to a direct appeal, under
Florida law does not preclude a defendant from waiving his right to appeal. A defendant may waive constitutional, statutory, or procedural rights during the criminal process. See, e.g., Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (privilege against self incrimination);
We agree with those courts which have held that nothing “inheres in a defendant‘s right to appeal from a judgment of conviction which makes an express waiver of it an unacceptable condition” of a sentencing bargain. People v. Seaberg, 74 N.Y.2d 1, 7, 543 N.Y.S.2d 968, 541 N.E.2d 1022, 1024 (N.Y.1989); see also Cubbage v. State, 304 Md. 237, 498 A.2d 632 (1985); People v. Holman, 89 N.Y.2d 876, 653 N.Y.S.2d 93, 675 N.E.2d 847 (N.Y.1996). A majority of jurisdictions have held that allowing a defendant to waive the right to appeal is not inherently illegal or unfair. See Cubbage, 498 A.2d at 634; contra Spann v. State, 704 N.W.2d 486 (Minn.2005).1 Some of these holdings arose from the waiver of a right to appeal as part of a plea bargain before trial. See, e.g., United States v. Nave, 302 F.3d 719 (7th Cir.2002); Staton v. Warden, 175 Conn. 328, 398 A.2d 1176, 1178 (1978); Weatherford v. Commonwealth, 703 S.W.2d 882 (Ky.1986); State v. Perkins, 108 Wash.2d 212, 737 P.2d 250 (1987). We see no reason to treat a plea bargain waiver of the right to appeal differently from a waiver that occurs in a sentencing bargain after a jury‘s finding of guilt. If anything, a “defendant‘s appreciation of the value of the right to appeal is far more refined after guilt or innocence has been decided by trial than before.” Seaberg, 543 N.Y.S.2d 968, 541 N.E.2d at 1026.
The American Bar Association Standards for Criminal Justice acknowledge the propriety of a defense attorney using the right to appeal as a bargaining chip during post-conviction negotiations. The standard directed at a trial counsel‘s duties with regard to an appeal provides that “after determination of guilt in a contested proceeding,” defense counsel “should consider the possibility of negotiating with the prosecutor for a reduction in the grade of offense or mitigation of the severity of sentence in exchange for a plea of guilty.” ABA Standards for Criminal Justice § 21-2.2(c) (2d ed.1980 and Supp.1986). The commentary to the standard explains that:
It may well be in the best interest of the defendant and the prosecution to reach agreement concerning the outcome of a case rather than extend litigation by appeal over the possible errors that may have occurred to that point. Such an agreement, openly presented to the trial court and accepted by the trial court, does not involve a procedure any more questionable than a pretrial negotiated guilty plea. Inclusion in the agreement of a provision that wholly waives the right of appeal is entirely proper.
Id. (emphasis added).
The New York Court of Appeals has identified the public policy that permits a
To be enforceable, a post-conviction sentencing bargain, like a plea bargain, must be voluntary, knowing, and intelligent. See id. at 1026; Cubbage, 498 A.2d at 638; Perkins, 737 P.2d at 251;
Here, we find that the trial judge‘s determination of voluntariness was adequate. The record reflects that Leach had time to consider the sentence, discuss it with his lawyer, and reflect upon the alternatives. Because the judge had agreed to a delayed surrender date, imminent imprisonment did not force an immediate decision. The terms of the bargain were highly favorable to Leach. “There was no effort to conceal error and [Leach] was fully aware of what the appealable issues were.” Holman, 653 N.Y.S.2d 93, 675 N.E.2d at 849. The strongest point on appeal was the sufficiency of the evidence on criminal intent. Just as with a pretrial Alford2 plea, a defendant may make a sentencing bargain to waive the right to appeal a viable issue “in order to take advantage of favorable terms offered by the prosecution.” The Florida Bar v. Keane, 536 So.2d 990 n. 1 (Fla.1988).
Leach‘s second argument is that his agreement to waive his right to appeal was not free and voluntary. However, he failed to preserve this issue for appeal by not raising it in the trial court. Voluntariness is a factual issue which must be developed in the trial court before an appellate court may consider it. “An appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and properly preserved, or if not properly preserved, would constitute fundamental error.”
The contention that a waiver of the right to appeal was involuntary does
Affirmed.
STONE and HAZOURI, JJ., concur.