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Circuit Invalidates Waiver of Counsel at Trial Because Court Misinformed Defendant re Maximum Penalty

       In United States v. Booker (3d Cir. 7/2/12),, the defendant represented himself at trial following an on-record colloquy in which the judge made a mistake on the sentencing range as to one count, telling the defendant he faced a minimum of five years instead of twenty-five. He also failed to advise the defendant that the maximum was life and that it must run consecutively with other counts. The panel (Greenaway for majority) finds that the waiver was structural error and requires reversal on all counts.

       Using language that may be of some use in attacking other uninformed waivers, the court holds that the waiver was invalid regardless of what effect the misinformation might have actually had on the defendant:

It is the District Court that bears the burden of ensuring that a defendant is acting voluntarily and with the appropriate knowledge before relinquishing his rights. Peppers, 302 F.3d at 130-31. Because we have been steadfast in requiring district courts to uphold this obligation, we see no reason to engage in an after-the-fact, subjective determination of what information did or did not influence Booker?s decision.
Although our resolution of this case is grounded in our jurisprudence regarding waiver of the right to counsel, we have also espoused similar notions regarding waiver in the guilty plea context. See Jamison v. Klem, 544 F.3d 266, 274, 276-77 (3d Cir. 2008). In Jamison v. Klem, we held that a guilty plea was not knowing and voluntary where the trial court failed to advise the defendant of the mandatory minimum that he would face as a result of pleading guilty. Because we found the waiver to be defective, we vitiated the guilty plea and granted the petitioner a writ of habeas corpus.

Claudia VanWyk
EDPA Capital Habeas Unit


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