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Lawyer ‘ineffective’ on appeal right

Talking with a convicted client’s kinfolk does not satisfy a criminal defense lawyer’s duty to consult about a possible appeal.

Although a trial court signed off on the lawyer’s efforts, the 4th U.S. Circuit Court of Appeals reversed the lower court and ordered reinstatement of the client’s right to appeal.

After Lonnie Edward Malone was sentenced in Abingdon U.S. District Court, he expressed interest in appealing, but his lawyer never spoke with him personally about an appeal. Instead, the attorney spoke with Malone’s son and daughter-in-law and wrote Malone a letter that the defendant did not receive until after the appeal period had run.

In the letter and in a meeting with Malone’s son, the lawyer said he would not file a notice of appeal and Malone likely would receive a longer sentence if he appealed.

Malone later filed a motion under 28 U.S.C. § 2255 alleging ineffective assistance of counsel, that U.S. District Judge James P. Jones denied.

In its unpublished per curiam opinion reversing that denial, the 4th Circuit panel said a lawyer has to “consult” with a defendant about a possible appeal. “Consulting” means not only discussing the pros and cons of an appeal, it requires an effort to ascertain the client’s wishes during the appeal period.

Malone’s direct statement to his lawyer that he wanted to appeal, and his son’s communication of the defendant’s wish to appeal, were enough to trigger the lawyer’s duty to consult, the panel said. Talking to Malone’s family and drafting a letter to Malone did not satisfy the duty to consult. The lawyer may have had good reason to caution the client about a possible increased sentence, but the decision to appeal belonged to the client.
By Deborah Elkins

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