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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 118658
Experience:  Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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For EXPERT FRAN L: Several factors influenced me to accept

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For EXPERT FRAN L:  Several factors influenced me to accept the plea. Among them was that all charges would be dismissed with the plea agreement. My attorney told me that if convicted I would face 10-15 years in prison. None of that turned out to be true. There were additional charges he was aware of but did not investigate and I got arrested and put in jail for 5 days until I finally contacted a relative and made bail. The attorney just laughed and said, "Next time don't open the door." I immediately asked him to get the plea agreement withdrawn and/or appeal the plea agreement, whichever was the correct legal process. But he said that I had no right to an appeal. He said that the only way I could withdraw the plea or appeal from it was if the judge had made a mistake and in his opinion she had not. Now I'm trying to over come failure to file timely notice. Everything I've read said to try to file it. I did and the Clerk marked it "received not filed." Then I tried to file a motion with the Court of Appeals to get them to get the clerk to accept it. She wouldn't file it unless I rewrote it as a Habeas petition. I did it. It got denied like 20 seconds later. But I've read People v. Acosta thoroughly and I do have a right to appeal, and I always had one. So now I just don't know what the heck kind of "petition" I write that the Court of Appeal will accept. I'm losing my mind trying to figure this out.
That is not sufficient coercion or duress generally to vacate if he was merely telling you the potential sentence you could be given, that is his duty to make sure you are informed of the maximum sentence. No attorney can tell you that you would never get found guilty in a case, but if you can prove that he never discussed your potential defenses with your to allow you to make an informed decision, you would have to argue that on appeal. You also need to read your plea deal because if it contains a waiver of appeal, you may not have a right of appeal.

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Customer: replied 5 years ago.
He never prepared a defense nor did he ever discuss a plan for a defense. The felony charges were over the top and I had no idea what they really meant. He never discussed that, either. He never investigated the strengths and weaknesses of the state's case vis-a-vis a defense. He just painted a very black picture. But if I took the plea agreement, all that went away. It was very rosey. Everything gone, no employer can use it once expunged, BRN can't use it against me (totally untrue) and on a background check it would just say "Failure to document." It wouldn't mention drugs, etc. Of course, none of that was true. But the biggest inducement for me was that all charges would be dropped and it would be done. But then I got arrested and then had to face down more charges. I refused a plea that time and eventually got a Factual Innocence. That's when I learned how things worked and what the previous charges meant and how exactly I'd defend it. But of course, he kept saying I had no right to an appeal. The plea agreement does not give up the right of appeal from the reading I just gave it.
If he told you it was going to be dismissed and you made your decision based on that misrepresentation, it would have been grounds to appeal to vacate, but my biggest concern is that you still will not be able to argue around the time you waited for an issue that is now so important to you that you seek to get the court to allow you to file outside of the statute of limitations (see where I am going and what the court is going to say? The court will say that if you believed this to be such an important issue you would have filed it before the statute of limitations to file to vacate had passed).
Customer: replied 5 years ago.
I understand that. My original question was what kind of petition do I file?
I believe we discussed that previously, it is still a motion to vacate together with a motion to file out of time and the grounds for your motion as we discussed is your ineffective assistance of counsel.
Customer: replied 5 years ago.
This is from the Sixth District Appellate Program website:
3. Relief from Default.
Pursuant to California Rules of Court, rule 8.308(a), a notice of appeal from a felony conviction must be filed no later than 60 days after entry of judgment (i.e. the date of sentencing). Upon occasion, the defendant will fail to meet the 60 day deadline. While the law treats the 60 day rule as a firm jurisdictional limit on the right of appeal (In re Benoit (1973) 10 Cal.3d 72, 81), the reality remains that the tardy filing of a notice of appeal can be excused under a number of theories. The most common theories for relief are addressed below.

At the outset, it should be noted that the preferred procedure for dealing with a late notice of appeal is to file a motion for relief from default in the Court of Appeal. While California Rules of Court, rule 8.60(d) purports to preclude such a motion when a notice of appeal has not been timely filed, the fact remains that motions for relief from default are routinely entertained as a matter of custom in several appellate courts, including the Sixth District. (See In re Jordan (1992) 4 Cal.4th 116, 121; the Fourth District adjudicated a Request for Finding of Constructive Filing of Notice of Appeal . . .)

As an alternative to a motion for relief from default, a defendant may also file a petition for writ of habeas corpus in the Court of Appeal. (In re Hernandez (1974) 40 Cal.App.3d 893, 894.) However, since the government has only 15 days in which to respond to a motion (Cal. Rules of Ct., rule 8.54(a)), the use of a habeas petition will generally not be the most expeditious remedy for the defendant.

As I explained earlier, I did file a habeas corpus petition, but it was rejected. I believe it was because I'm not really in custody. But the court of appeal doesn't say why they reject something. One court will take a motion, another will not. If one is not eligibile for a habeas, and the court won't take a motion, then what does one file? Also, when I tried to file the motion for relief with the Court of Appeal, the Clerk said there was nothing to attach it to. She said there was no lower court appeal process, so does that mean I also have to start with the appellate division of the superior court? This whole process seems designed to confound and not give relief.

If the superior court refuses to accept the motion for post conviction relief to vacate the plea, then you would have to appeal that to the court of appeals, since the rule specifies either habeas or motion, but realize since you are out of time they can deny it all.
Customer: replied 5 years ago.
so you're saying to file a motion to withdraw the plea rather than trying to get a notice of appeal accepted? And then just appeal that all the way up the ladder?
If your appeal was refused and your habeas denied, your only recourse is trying to vacate the plea in the court where you entered it and then if they refuse you would appeal that refusal. I am not saying you have a strong case, but it is the only real case you have at this point.
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