Ruling will change plea agreement practices

OCTOBER 2017 TERM

Last week, the U.S. Supreme Court decided Class v. United States by a 6-3 decision. 2018 DJDAR 1580 (Feb. 21, 2018). Justice Stephen Breyer delivered the majority opinion, which holds that a guilty plea does not inherently waive a criminal defendant's right to subsequently challenge the constitutionality of the statute of conviction on direct appeal. Justice Samuel Alito authored the dissenting opinion, which Justices Clarence Thomas and Anthony Kennedy joined. The Class decision resolves a circuit split and provides useful insights for prosecuting and defense attorneys alike.

In the wake of Class, prosecutors must include a provision in the plea agreement expressly waiving the defendant's right to challenge the constitutionality of the statute of conviction because a guilty plea does not inherently do so. Likewise, defense counsel must pay close attention to proposed plea agreements, particularly if they are accustomed to receiving boilerplate agreements.

Defense counsel must consider whether a constitutional challenge to the statute of conviction lies and, if so, determine whether the contemplated plea agreement would waive the right to raise it on appeal. The court's rejection of the theory that Federal Rule of Criminal Procedure 11 provides the exclusive procedure for identifying and reserving constitutional issues for appeal may also help avoid the scenario where defendants are denied credit for acceptance of responsibility because they sought to reserve a constitutional challenge to the statute of conviction for appeal through Rule 11's conditional plea procedures.

Some background is essential to understand and apply the Supreme Court's decision. Class was arrested and charged with possessing firearms in his car in a publically accessible parking lot on the Capitol Grounds, where all weapons are prohibited pursuant to statute. He plead guilty after unsuccessfully arguing in the district court that his indictment violated his rights under the 2nd and 14th Amendments. Class then appealed to the U.S. Court of Appeals for the D.C. Circuit, again asserting his constitutional challenges to the underlying statute of conviction.

As we wrote previously ("Guilty pleas and defendant rights," Sep. 27, 2017), the circuit courts had been split as to whether a guilty plea waives constitutional challenges to the statute of conviction. The split arose from disparate applications of the Menna-Blackledge doctrine, which derives from Blackledge v. Perry, 417 U.S. 21 (1974), Menna v. New York, 423 U.S. 61 (1975), and their progeny. In Class, the D.C. Circuit joined the 1st and 10th Circuits to hold that a guilty plea inherently waives all constitutional claims and the court affirmed Class' judgment. These three circuit courts confined Blackledge and Menna to their facts, denying all challenges to a conviction after a guilty plea except for the specific constitutional claims of prosecutorial vindictiveness (as in Blackledge) and that the indictment implicates the double jeopardy clause of the Fifth Amendment (as in Menna).

But, five appeals courts -- the 3rd, 5th, 6th, 9th and 11th -- had found that a guilty plea is not an automatic waiver of a constitutional challenge. A third group -- the 4th, 7th and 8th Circuit Courts of Appeal -- decided the issue on a facial and as-applied basis, allowing facial challenges to the constitutionality of the statute of conviction but not as applied challenges. The Supreme Court granted certiorari in Class to resolve the split and answer the question whether a guilty plea inherently waives a defendant's right to challenge the constitutionality of his or her statute of conviction.

The majority first analyzed the plea agreement to confirm whether Class expressly waived his constitutional challenge to the statute of conviction. Although the agreement contained provisions waiving certain, identified defenses and rights -- such as statute of limitations defenses, certain trial rights, the right to appeal a below-guideline sentence, collateral attacks on conviction and sentence, and various rights to request or receive information about the investigation -- the court found that the agreement contained no provision waiving Class' right to challenge the constitutionality of the statute of conviction on direct appeal. Thus, the question whether a guilty plea inherently waives constitutional challenges to the statute of conviction was squarely before the court.

The majority turned next to the Menna-Blackledge doctrine. As clarified by the decision, the doctrine stands for the proposition that indictment, prosecution and conviction pursuant to an unconstitutional statute violates a defendant's right not to be haled into court to answer charges brought in excess of the government's authority such that a guilty plea should not necessarily waive challenges to the constitutionality of the statute of conviction. The majority upheld the doctrine, noting that Class' claims fall within it because he sought to challenge the government's constitutional authority to prosecute him under the statute of conviction. Addressing one of the dissent's chief complaints, the majority also clarified that the doctrine has limitations. For example, the court reiterated that, under Broce, the constitutional claim must appear on the face of the indictment and the record before the court. The court also used Class' claim to illustrate and emphasize that a defendant's post-plea challenge must reach the government's constitutional authority to bring the charge at all, rather than simply contest case-related constitutional violations such as those that could be cured by suppression of evidence or even a new indictment.

The dissent advocated for a more restrictive approach, arguing that Rule 11 provides the governing law and, more specifically, that an unconditional guilty plea waives all nonjurisdictional defects. The dissent rule is subject to an exception established in the advisory committee notes to the 1983 Amendment to Rule 11, however. The notes state that, "[t]he Supreme Court has held that certain kinds of constitutional objections may be raised after a plea of guilty. Menna v. New York, 423 U.S. 61 (1975) (double jeopardy violation); Blackledge v. Perry, 417 U.S. 21 (1974) (due process violation by charge enhancement following defendant's exercise of right to trial de novo). Subdivision 11(a)(2) has no application to such situations, and should not be interpreted as either broadening or narrowing the Menna-Blackledge doctrine or as establishing procedures for its application." The dissent deals with this exception by attacking the Menna-Blackledge doctrine, arguing that it is "vacuous, has no sound foundation, and produces nothing but confusion." At the very least, the dissent would confine the doctrine to the facts of each case, which is consistent with the law in the D.C., 1st and 10th Circuits prior to Class.

The majority countered by pointing out, first, that Rule 11 does not purport to establish the exclusive procedure for a defendant to preserve constitutional claims following a guilty plea and, second, that the express language of the advisory committee notes state that Rule 11(a)(2) '"has no application' to the 'kinds of constitutional objections' that may be raised under that doctrine."

The majority opinion not only resolves the circuit split that allowed geography to dictate a defendant's appellate rights, but also provides some practical guidance. First, the court acknowledged limitations to the Menna-Blackledge doctrine. For example, the constitutional claim must appear on the face of the indictment and the record before the court -- the defendant may not challenge the interpretation of the provisions of the plea agreement. Additionally, the doctrine applies to claims that challenge the government's constitutional authority to bring a charge or obtain a conviction on it, as opposed to case-related constitutional violations where the statute of conviction is otherwise constitutional. Class' constitutional claims illustrate these points well: his appeal could proceed because his claims did not contradict the terms of the indictment or written plea agreement; rather, they reached the question whether the government possessed constitutional authority to bring the charges at all. Finally, the majority rule also avoids the possibility that a defendant could be denied acceptance of responsibility because he or she sought to reserve the constitutional challenge for appeal pursuant to Rule 11.