Inaccurate information leading to guilty plea with no deal is IAC

Kurt P. Kerns and Melody S. Morgan won in Moll v. State, No. 107,450 (Kan. App. March 15, 2013)(unpublished) affirming Judge Yost's order allowing withdrawal of a plea in a Sedgwick County aggravated battery and aggravated escape from custody prosecution.  Mr. Moll had pleaded guilty without a plea agreement.  In his habeas motion, he claimed ineffective assistance of counsel.  Judge Yost agreed and the COA affirmed:

The district court concluded that [defense counsel's] actions fell below the standard of reasonable assistance of counsel in two respects. First, the court faulted [defense counsel's] investigation and trial preparation, concluding that [defense counsel] failed to give meaningful consideration to the possibility of trial and failed to “develop[ ] information through investigation or pretrial motion practice which would have increased the odds of a more favorable resolution.” Second, the court faulted [defense counsel's] advice to Moll, concluding that “[defense counsel] failed to communicate the necessary information to [Moll] in order for [Moll] to make a knowing and voluntary waiver of his right to trial.”

Two criminal-defense attorneys testified as expert witnesses, and both said that [defense counsel's representation had been below the required standard. The district court's factual findings included that “[b]oth experts credibly opined that an investigation and pretrial motions should have been pursued in this case.” As to the advice given, Moll testified that [defense counsel] told him that he “was going to get probation” and that [defense counsel] “just said we might as well just plead guilty and get it over with and you're going to get probation.”

The State correctly notes the rule that tactical and strategic decisions usually don't establish that the attorney was ineffective. But even strategic decisions must be part of a reasonable, overall defense strategy. Here, the district court found that, in light of Moll's criminal history and the fact that the sentencing guidelines provided for a presumptive prison sentence, [defense counsel's] belief—and advice—that Moll would receive probation was “simply unreasonable.” We agree. Nor does the complete failure to investigate or prepare the case constitute a reasonable, overall defense strategy.

[Update: the state did not file a PR and the mandate issued on April 18, 2013.]