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May 26, 2016 Top Story

Actual Innocence Unnecessary for Legal Malpractice Claim

Malpractice involving illegal sentence only requires post-judgment relief

Caitlin Haney

An attorney is subject to legal malpractice if she does not catch an erroneous journal entry of sentencing resulting in her client serving more time in prison than his original sentence. For a viable malpractice claim against their defense attorney, defendants need not prove they were innocent of a crime for which a court imposed an illegal sentence. Rather, criminal defendants need only prove they could get post-sentencing relief from the illegal sentence, according to the Kansas Supreme Court.

Imposition of an Illegal Sentence

In Garcia vBall, the criminal defendant hired a criminal defense attorney to represent him in a probation revocation proceeding in Kansas District Court. An incorrect journal entry of sentencing resulted in the criminal defendant serving more time in prison than his original sentence. The defense attorney had approved the journal entry.

Two weeks after the probation revocation hearing, the Kansas Department of Correction alerted the district court and the defense attorney of the error. However, neither the district court nor the defense attorney took any action.

After the defendant learned of the journal entry error, he attempted to contact the defense attorney to inform him of the error so it could be corrected. Eventually, the defendant filed his own pro se motion to correct an illegal sentence. The court filed a journal entry nunc pro tunc correcting the previous error and afterwards corrections officials released the defendant from prison.

The defendant brought a legal malpractice claim against the defense attorney. He alleged that because of the defense attorney’s negligence he unnecessarily spent an additional five months in prison. Despite being served with the petition, the defense attorney failed to respond to the legal malpractice suit resulting in the court entering a default judgment against him.

Appealing the Default Judgment

Soon after entry of the default judgment against him, the defense attorney moved to set aside the default judgment because he had meritorious defense and other grounds to set aside the judgment. The Wyandotte District Court set aside the default judgment and ruled that the exoneration rule applied to the defendant’s claims and the nunc pro tunc order failed to exonerate the defendant.

The criminal defendant appealed, arguing that the district court abused its discretion granting the motion to set aside the default judgment. The criminal defendant contended the exoneration rule required him to prove post-conviction relief, not actual innocence. Further, that the statute of limitations on his legal malpractice claim began to run when the nunc pro tunc order was entered. The Kansas Court of Appeals found that the district court abused its discretion in granting the motion to set aside the default. The Court of Appeals reinstated the default judgment against defense attorney and did not reach the other arguments raised by the defendant.

Considering cross appeals from below, the Kansas Supreme Court ultimately set aside the default judgment and held that the criminal defendant may bring his legal malpractice claim without proving actual innocence. The court found that in cases involving an illegal sentence, to satisfy the exoneration rule, the criminal defendant need only prove that he obtained post-judgment relief. Here, the required exoneration occurred in nunc pro tunc order, wherein the district court acknowledged that it had imposed an illegal sentence. Further, the entering of the nunc pro tunc order also signified when the statute of limitations began to run.

Defense Counsel Have Independent Duty to Review the Order

According to ABA Section of Litigation leaders, the criminal defense attorney’s actions in this case were very suspect. Either the defense attorney “did not review the journal entry before he signed it or was unaware of the statute” suggests Michael T. Dawkins, Jackson, MS, cochair of the Ethics and Professionalism Subcommittee of the Section of Litigation’s Criminal Litigation Committee. The defense attorney’s actions in this case were “obviously a failing and not competent representation,” according to Professor Bennett L. Gershman, White Plains, NY, cochair of the Section’s Criminal Litigation Committee’s Books Subcommittee.

Part of “defense counsel’s job is to ensure that the court’s written order or entry is consistent with what the court stated from the bench when making the verbal ruling,” continues Dawkins. Gershman agrees, stating “for counsel to be an effective and loyal guardian of his client’s interest, a lawyer should make an independent review of court orders and proceedings to ensure himself or herself that it is accurate.”

Exoneration Rule Properly Applied 

Dawkins agrees with the court’s application of the exoneration rule “since the court did not require the [criminal defendant] to prove his actual innocence of the crime.” “It would have been illogical for the court to have required the [criminal defendant] to prove actual innocence because he was a victim of wrongful sentencing, caused by legal malpractice,” continues Dawkins.

“Some parts of criminal procedure require actual innocence to obtain relief, and actual innocence is an extremely high standard, especially when you are not dealing with scientific evidence,” notes Gershman. It “seems unfair to force the criminal defendant to prove actual innocence if the criminal defendant is only arguing that the sentence is unlawful.” In order to avoid situations like this in the future, attorneys should “always keep an open mind and be alert to the possibility of errors that might adversely impact their clients,” cautions Gershman.


Caitlin Haney is an associate editor for Litigation News.

Keywords: malpractice, criminal litigation, exoneration

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