in a case decided before Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), trial counsel was found to have rendered ineffective assistance of counsel by advising his client to accept a guilty plea offer without informing him that a "strong argument" could be made that his conduct did not constitute a violation of the penal statute under which he was charged; trial counsel should "at the very least" have explained the situation to his client to ensure that any guilty plea was knowingly and voluntarily entered
How later courts described this case
- in a case decided before Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), trial counsel was found to have rendered ineffective assistance of counsel by advising his client to accept a guilty plea offer without informing him that a "strong argument" could be made that his conduct did not constitute a violation of the penal statute under which he was charged; trial counsel should "at the very least" have explained the situation to his client to ensure that any guilty plea was knowingly and voluntarily entered
- in a case decided before Strickland v. Washington, 466 U.S. 668 (1984), and Hill v. Lockhart, 474 U.S. 52 (1985), trial counsel was found to have rendered ineffective assistance of counsel by advising his client to accept a guilty plea offer without informing him that a “strong argument” could be made that his conduct did not constitute a violation of the penal statute under which he was charged; trial counsel should “at the very least” have explained the situation to his client to ensure that any guilty plea was knowingly and voluntarily entered
- “In applying the reasonably effective assistance standard to the facts of the instant case, we conclude . . . that petitioner Gallegos was denied the effective assistance of counsel when counsel failed to advise Gallegos how the facts of his case related to the Texas law of robbery, thus preventing the guilty plea from being knowingly and voluntarily entered.”
- in a case decided before Strickland v. Washington , 466 U.S. 668 (1984), and Hill v. Lockhart , 474 U.S. 52 (1985
Written by the judges who cited it.
The opinion
ROBERTS, Judge
(concurring).
I concur. The majority, relying on a recent decision of the Fifth Circuit Court of Appeals, has modified the traditional test for determining effectiveness of counsel from the majority rule of “farce-mockery” to a “reasonably effective assistance” standard. It is the ambiguity inherent in the use of the latter phrase with which I take issue. The phrase “reasonably effective assistance” is peculiar to the Fifth Circuit while most other jurisdictions pioneering this new test prefer “reasonably competent.” The word “effective” is burdened with the usual connotation of success or desired result. Such is not the test meant to be established. To rely on this ambiguous phrase is to invite confusion and require clarification in the future.
In McMann v. Richardson, 397 U.S. 759 , 90 S.Ct. 1441 , 25 L.Ed.2d 763 (1970) the Supreme Court of the United States chose to adopt the precise language I propose. There the appellant complained that his counsel had mistakenly assessed the admissibility of his confession and that he was erroneously advised as to the law. Justice White, speaking for the court, said:
“Waiving trial entails the inherent risk that the good-faith evaluation of a reasonably competent attorney will turn out to be mistaken either as to the facts or as to what the court’s judgment might be on given facts.” (Emphasis added)
The opinion goes on to point out that holding a confession inadmissible by a divided vote hardly justifies a conclusion that an attorney was incompetent when he thought the admissibility of the confession sufficiently probable to advise a plea of guilty. The court proceeded to establish the standard by which competency of counsel would be judged in cases involving guilty pleas:
“In our view a defendant’s plea of guilty based on reasonably competent advice is an intelligent plea not open to attack on the ground counsel may have misjudged the admissibility of the defendant’s confession. Whether a plea of guilty is unintelligent and therefore vulnerable when motivated by a confession erroneously thought admissible in evidence depends as an initial matter, not whether a court would retrospectively consider counsel’s advice right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases.” (Emphasis added) See McMann v. Richardson, supra, and United States v. De Coster, 159 U.S.App.D.C. 326 , 487 F.2d 1197 (1973).
Williams v. Beto, 354 F.2d 698 (5th Cir. 1965), reasoned that the fact some other lawyer would have acted differently had he been counsel or would have followed a different course in another case is no ground for branding the attorney as incompetent. Both McMann v. Richardson, supra, and Williams v. Beto, supra, recognize that it is unreasonable to judge a lawyer by hindsight. I believe this reasoning must be an essential element in any definitive test established by this Court.
*514 The instant case, however, satisfies both tests of competency of counsel. With minimal research, any reasonably competent attorney would have discovered that Texas law requires that the accused possess an intent to permanently appropriate the jail keys and deprive the owner of their value in order to he guilty of robbery. Surely by any standard, appellant was entitled to be advised by his attorney that an essential gravamen of the offense was not present. Such a gross lack of diligence amounts to a failure to exercise reasonable competence, even to the point of reducing the trial to a farce and mockery of justice. Therefore, by either test, the appellant was clearly denied his constitutional right to competent counsel.
As to the granting of the writ, I am in complete agreement with the other members of this Court; however, I would use the more precise phrase of “reasonable competence demanded of attorneys in criminal cases.” For the foregoing reasons, I concur in the disposition of this case.
ODOM, J., joins in this concurring opinion.