Burt v. Titlow

(1) Whether a defendant’s subjective testimony is sufficient to prove that but-for ineffective counsel, she would have pled guilty; (2) Whether the appropriate remedy under Lafler v. Cooper is to resentence a defendant who proves that ineffective assistance led to her refusal to plead guilty.

Respondent was charged with helping her aunt murder her uncle. Respondent’s first retained attorney negotiated a plea agreement under which her charge would be reduced to manslaughter and the resulting prison term would be between 7 and 15 years if she pled guilty and testified against her aunt. Respondent initially agreed to this arrangement but later changed her mind, discharged her first attorney and hired a new attorney (to be paid in jewelry and media rights) for the purpose of withdrawing her guilty plea. Shortly after doing so, the second attorney withdrew as counsel. The trial court appointed a third attorney, and Respondent was convicted of second-degree murder and sentenced to 20-to-40 years in prison.

After exhausting her state appeals, Respondent filed a petition for a writ of habeas corpus which was denied, but the Court of Appeals for the Sixth Circuit reversed and granted the writ. In reaching its conclusion, the Sixth Circuit relied on Strickland v. Washington, 466 U.S. 668 (1984), which held that the defendant must “show that counsel’s performance was deficient” and that “the deficient performance prejudiced the defense” and on Lafler v. Cooper, 132 S. Ct. 1376 (2012) which extended the Sixth Amendment’s right to effective assistance of counsel to the plea bargaining process, and concluded that Respondent’s second attorney had failed to fulfill his “clear obligation" to provide sufficient advice during the plea-negotiation stage.

On appeal, Petitioner argues that Respondent's second attorney did not render ineffective assistance because it was Respondent’s decision to change her plea, and that Respondent’s subjective testimony is not sufficient to prove that but-for ineffective counsel, she would have pled guilty. Petitioner also argues that even if the Court decides that Respondent’s counsel was ineffective, the Sixth Circuit’s instruction to the state trial court to either reoffer Respondent her original plea agreement and resentence her or else to release her—violates Lafler’s remedy that the trial court is to exercise its discretion in determining “whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence [s]he received at trial, or something in between.”