State v. Terron Anthony Clayborn, 2023AP283-CR, 8/20/24, District I (not recommended for publication); case activity
In a case presenting a common postconviction fact pattern alleging an improper promise by counsel, COA affirms despite postconviction testimony largely corroborating the defendant’s account.
Clayborn pleaded guilty to two felonies following a fatal accident. (¶1). In exchange for his pleas, the State agreed to recommend 12 years of initial confinement. (¶3). His lawyer ultimately argued for a lesser sentence. (¶5). The circuit court followed the State’s recommendation as to initial confinement. (¶6).
Clayborn completed a plea form which included the standard language disclaiming any promises. (¶3). During the plea colloquy, he answered “no” when asked whether there had been any threats or promises to induce his plea. (¶4).
However, Clayborn ultimately filed a postconviction motion alleging that, as a matter of fact, there had been a promise. (¶7). He alleged that his lawyer had advised against substituting against the assigned judge because doing so would “hamper his ability to get the judge to do him a favor at sentencing.” (Id.).
The circuit court conducted a hearing, at which time defense counsel testified about his conversations with Clayborn’s girlfriend, Robinson, who had retained defense counsel on Clayborn’s behalf. (¶8). Defense counsel agreed that he had boasted to Robinson about his strong personal connection with the sentencing court and had advised against substitution given that this judge was his “preferred judge.” (Id.). Although he told Robinson he could not ask the judge for a favor, he did tell Robinson “that he had lunch with [the judge] and others shortly before sentencing and he believed the sentencing was ‘teed up.'” (Id.).
In her testimony, Robinson contended defense counsel had been much more explicit about his strong relationship with the judge and his ability to use that personal connection to benefit Clayborn. (¶9). She testified that defense counsel had explicitly promised a favor and had made a “guaranteed promise” that Clayborn would receive “no more than eight years of initial confinement[…].” (¶10). Clayborn offered more of the same during his testimony, and also told the court that he signed the plea questionnaire at his lawyer’s instruction and did not speak up during the plea colloquy on the advice of defense counsel. (¶11).
The postconviction court found Robinson to be the “most credible” witness and also found that defense counsel had made “inappropriate” representations. (¶13). It concluded that defense counsel’s testimony was equivocal and Clayborn’s to be self-serving. (Id.). It also found that both Robinson and Clayborn were not “sophisticated consumers” of the legal system. (¶14). Finally, it found that Clayborn had presented a “compelling explanation” for not answering truthfully during the plea colloquy and specifically cited the “inappropriate actions of” defense counsel. (¶16). Despite these factual findings, however, the postconviction court concluded that the theory for plea withdrawal was premised on “unclean hands” and that granting relief would essentially reward Clayborn for perpetrating a fraud on the court. (¶16). There was no manifest injustice, moreover, because the circuit court did not abandon its neutrality and did not actually decide the sentence based on a favor owed to defense counsel. (Id.)
On appeal, Clayborn renews his arguments and asserts that plea withdrawal is warranted because defense counsel’s conduct rendered his plea involuntary. (¶17). He argues that he would not have pled guilty but-for the problematic inducements of defense counsel. (¶19). COA looks to three cases to resolve his somewhat-novel claim. First, it distinguishes State v. Riekkoff (defendant pleaded based on mistaken understanding of guilty-plea waiver rule) and State v. Dawson (defendant entered into legally impossible plea agreement) because “those defendants were not acting with hidden or illicit intent, and their pleas were induced by flawed or mistaken legal theory.” (¶24). Instead, it relies on a persuasive case from the Seventh Circuit, Hutchings v. United States, which did not permit plea withdrawal given that the claim was premised on a lie given by the defendant during the plea colloquy. (Id.).
Ultimately, COA concludes there has been no “manifest injustice” as it is not “moved to permit Clayborn to withdraw his pleas based on his attorney failing to deliver on a ‘favor.'” (¶25). Even though it is concerned by defense counsel’s actions, COA observes in a footnote that it cannot “aid a party attempting to enforce an unlawful agreement.” (Id.). Here, Clayborn received the benefits of the bargain he entered on the record. (¶26). Moreover, given that the plea colloquy was “thorough,” COA holds that “a failure to recognize the implications of a valid plea colloquy would debase the judicial proceeding at which a defendant pleads and the court accepts its plea.” (Id.) (Cleaned up.).
This is an interesting case, as almost all appellate lawyers are likely to encounter an identical fact pattern at some point in their career. While such claims of “promises” may tempt the lawyer to indulge in a cynical reading of their client’s credibility, it’s worth pointing out that, in this case, Clayborn was telling the truth about his attorney’s extremely odd and concerning behavior. The case also hints that a thorough plea colloquy may not always excuse a lawyer from no-meriting such a claim, at least when the defendant can credibly allege a “compelling explanation” for their contradictory answers.
However, the concluding paragraphs of this opinion show that proving a “manifest injustice” under such circumstances might be difficult. COA offers a medley of justifications (some more persuasive than others) as to why it would not make sense to grant relief under these circumstances. However, the decision is, at the end of the day, unpublished and non-binding. Lawyers wishing to navigate this issue will therefore have to wait for another day for conclusive answers.
