Another important area of involuntary pleas relates to pleas that are entered under a reasonable misapprehension of law.  Giving the defendant erroneous legal advice, on which basis the plea is entered, can result in an invalid plea.[103] 

 

One common ground is where the defendant is misinformed concerning the sentence.[104]  A “gross mischaracterization” of the sentence that the defendant can face can be grounds of ineffective representation.[105]  For example, a plea was held involuntary where the court refused to allow the defendant to withdraw the plea, after assuring him prior to plea that he could do so later if he wished after he heard what the sentence would be.[106]  Another plea was held involuntary where counsel misrepresented to the defendant that the judge had agreed to a maximum sentence of 90 days.[107]  Similarly, a plea was vacated as involuntary where the defendant was misinformed concerning the applicable Guidelines range within which his sentence would lie.[108]  A plea was held to violate due process where the defendant was not informed that the federal court lacks the authority to impose a sentence that runs concurrently with a state-court sentence.[109]

 

Guilty plea convictions may also be vacated for ineffective counsel in failing to suppress confessions,[110] fundamental errors in the charging paper,[111] and the like.  Pleas were also vacated where, before plea, the defendant was mistakenly assured by court and counsel that he could appeal the denial of a speedy-trial motion[112] or motion to suppress evidence[113] after plea, or that he could make a selective-prosecution motion after plea.[114] 

[103] United States v. Toothman, 137 F.3d 1393 (9th Cir. 1998) (mistake in the estimate of appellant’s sentence); United States v. Pierre, 120 F.3d 1153 (11th Cir. 1997) (mistaken belief that an appeal issue was preserved); United States v. Cortez, 973 F.2d 764 (9th Cir. 1992) (mistaken belief that an appeal issue was preserved); Chizen v. Hunter, 809 F.2d 560 (9th Cir. 1986) (misrepresentation to defendant that sentence agreement had been reached with judge); United States v. Carrasco, 786 F.2d 1452 (9th Cir. 1986) (mistaken belief that plea was conditional and that appeal of denial of motion to suppress evidence would be allowed after plea); Dickerson v. Vaughn, 90 F.3d 87 (3d Cir. 1996) (plea based on counsel’s erroneous advice that pretrial ruling on double jeopardy could be appealed after plea).

[104] United States v. Espinoza, 866 F.2d 1067 (9th Cir. 1989).

[105] See Iaea v. Sunn, 800 F.2d 861, 865 (9th Cir. 1986).

[106] Fair v. Zant, 715 F.2d 1519 (11th Cir. 1983).

[107] Chizen v. Hunter, 809 F.2d 560 (9th Cir. 1986) (plea held involuntary even where waiver form indicated court had made no promises concerning sentence).

[108] United States v. Toothman, 137 F.3d 1393 (9th Cir. 1998) (defendant was told the Guidelines range was 10-16 months; presentence report recommended 199 months; motion to withdraw plea denied; court imposed 109 months); but see United States v. Johnson, 67 F.3d 200 (9th Cir. 1995) (waiver of right to appeal sentence enforced even though law creating appeal issue had not yet been enacted when waiver signed).

[109] United States v. Neely, 38 F.3d 458 (9th Cir. 1994).

[110] Withrow v. Williams, 597 U.S. 680 (1993) (affirming grant of habeas corpus relief because police used trickery in securing confession).

[111] Forgy v. Norris, 64 F.3d 399 (8th Cir. 1995) (charging instrument’s failure to specify predicate crime for burglary charge violated due process right to fair notice of charges).

[112] United States v. Pierre, 120 F.3d 1153 (11th Cir. 1997).

[113] United States v. Carrasco, 786 F.2d 1452 (9th Cir. 1986).

[114] United States v. Cortez, 973 F.2d 764 (9th Cir. 1992).

Ninth Circuit

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - PLEA NEGOTIATIONS - ERRONEOUS ADVICE TO REJECT PLEA BARGAIN BASED ON FAILURE TO RESEARCH THE LAW
Hoffman v. Arave, 455 F.3d 926 (9th Cir. 2006) (counsel ineffective by giving incompetent advice regarding prosecutions plea offer; counsel failed to be fully aware of state of the law in advising defendant whether to accept offer).

COUNSEL - INEFFECTIVE ASSISTANCE - MISADVICE
Sophanthvong v. Palmateer, ___ F.3d ___ (9th Cir. April 12, 2004) (Counsel not required to predict accurately how courts will resolve disputed issues; advice was at most "mere incorrect prediction" of application of statute and did not amount to "gross mischaracterization of the likely outcome" of plea bargain or trial; Strickland requires only objectively reasonable advice under prevailing professional norms).