Does a Guilty Plea Waive a Defendant’s Right to Challenge the Constitutionality of the Statute of Conviction?
Does a Guilty Plea Waive a Defendant’s Right to Challenge the Constitutionality of the Statute of Conviction?
Charged with violating a federal statute prohibiting the possession of weapons on the grounds of the U.S. Capitol in Washington, D.C., Rodney Class admitted to having weapons in his vehicle parked on Capitol Grounds, but claimed that the statute was unconstitutional. After the trial court ruled against Class, he pleaded guilty to the offense and appealed his conviction, raising the constitutional arguments. Holding that the guilty plea waived these issues, the appellate court affirmed the conviction. The defendant now argues to the Supreme Court that the appellate court erred and that guilty pleas waive only issues related to factual guilt but not arguments that the statute of conviction was unconstitutional.
Docket No. 16-424
Argument Date: October 4, 2017
From: The D.C. Circuit Court of Appeals
by Alan Raphael
Loyola University Chicago School of Law, Chicago, IL
Does a defendant’s unconditional guilty plea prevent him from raising on appeal the argument, rejected in pretrial rulings, that the statute under which he was charged was unconstitutional?
A federal law, 40 U.S.C. § 5104(e), prohibits weapons on the grounds of the U.S. Capitol in Washington, D.C. Rodney Class, a native of North Carolina where he has a concealed-carry firearm permit, parked his Jeep in a parking lot in D.C. that was 1,000 feet from the U.S. Capitol and, unknown to Class, within the legal definition of the Capitol Grounds. A police officer saw that the vehicle lacked a parking permit and then observed what appeared to be a large blade and a gun holster in the vehicle. Police then searched the Jeep, uncovering three firearms and several knives. Class was charged with one count of violating § 5104(e) for possessing a weapon on Capitol Grounds.
In pretrial proceedings in federal court in the District of Columbia, Class filed numerous motions to dismiss the charge. He asserted that the statute violated his Second Amendment right to bear arms and that the lack of a sign at the parking lot indicating that weapons were barred from vehicles violated his Fifth Amendment right to due process of law because he did not have notice of the law’s reach. After denying these motions, the court set the case for trial. Class failed to show up for one trial date but subsequently appeared and pleaded guilty to the charge. The court imposed a sentence of 24 days of incarceration and 12 months of supervised release.
A guilty plea constitutes a waiver, or relinquishment, of numerous constitutional guarantees, including the rights to trial, to present evidence, to cross-examine witnesses, and not to be compelled to be a witness against oneself, as well as the requirement that the government bear the burden of proving guilt beyond a reasonable doubt. Because of the importance of these constitutional protections under our system of criminal justice, Rule 11 of the Federal Code of Criminal Procedure provides that a guilty plea in a federal court is valid only if the trial judge makes clear on the record that the defendant understands the rights he is relinquishing and agrees voluntarily to surrender them. In this case, the court’s compliance with these requirements is shown by a question-and-answer colloquy with Class. The judge explained each of the rights surrendered by a guilty plea, and, as to each, Class answered that he understood the right. He further indicated that he was pleading guilty voluntarily. Class did not avail himself of the Rule 11(a)(2) procedure for a defendant to plead guilty and reserve the right to raise on appeal denials from specified pretrial motions, with the consent of the prosecutor and judge.
Regarding appeal, the court informed Class that, after pleading guilty, he still could raise arguments that his plea was involuntary, that there was a fundamental defect in the guilty-plea proceedings, or that his sentence was illegal. Class said he understood these matters. The court did not tell him specifically that his plea prevented him from appealing the rulings on his constitutional claims. However, the court did state, “Now, if you plead guilty in this case and I accept your guilty plea, you’ll give up all of the rights I just explained to you, aside from the exceptions that I mentioned, because there will not be any trial, and there will probably be no appeal.” Class said that he understood. The court then determined that Class knew the rights he was waiving and was voluntarily agreeing to give them up, thus allowing it to accept the guilty plea and enter a judgment of conviction.
Class raised the constitutional arguments on his appeal. Citing one of its own cases and the Supreme Court precedent of Tollett v. Henderson, 411 U.S. 258 (1973), for the rule that “unconditional guilty pleas that are knowing and intelligent…waive the pleading defendant’s claims of error on appeal, even constitutional claims,” the appellate court dismissed the appeal. On appeal, Class made two arguments. First, he claimed that he never explicitly waived the issues regarding constitutionality of the statute. Second, he argued that a guilty plea does not constitute a waiver of these issues. The appellate court did not rule on his first argument. Instead, it held that, following a guilty plea, the only arguments not waived are defects in taking the plea, ineffective assistance of counsel, and instances in which the trial court had no right to bring the defendant to trial at all or lacked subject matter jurisdiction over the case. Because none of these exceptions applied, the appeals court refused to consider the merits of Class’s constitutional claims, and it affirmed his conviction.
The Supreme Court granted a writ of certiorari to determine whether Class’s guilty plea forfeited his right to appeal the court’s denial of his motions to dismiss the case on constitutional grounds.
Ninety-seven percent of federal criminal cases resulting in a conviction follow a guilty plea rather than a trial. In state courts, where the overwhelming majority of criminal cases are adjudicated, the percentage of guilty pleas is 94 percent. Because so few criminal convictions follow a trial, the determination of what issues may be considered on appeal after a guilty plea is significant for the criminal justice system.
In order to contest the constitutionality of the statute under which he was charged, Class was required to file pretrial motions raising the issues. Had he not done so, he would have been barred from raising the issue after conviction, regardless of whether he had gone to trial or pleaded guilty. He did, however, raise the issues to the trial court and thus was not barred from raising the claims on appeal under two circumstances. If Class had pleaded not guilty and been convicted, he would have been able to raise on appeal the arguments rejected by the trial court that his convictions were under an unconstitutional statute. If he had made a conditional guilty plea specifying which rulings he was contesting, with the agreement of the prosecutor and court, he would have been able to raise the same constitutional arguments on appeal. If he had succeeded in his arguments, the conviction would have been overturned. He did not, however, follow either of these procedures.
By pleading guilty, Class saved the government the time and expense of holding a trial and ruled out the possibility that he would be found not guilty. The guilty plea also provided Class with considerable benefits. First, his case was resolved more quickly than it would have been had he insisted on his right to trial. Second, the government agreed not to prosecute him for the separate crime of his failure to appear for trial. Third, the prosecutor recommended a sentence at the low end of the Sentencing Guidelines range, which called for a sentence of up to six months of imprisonment and a fine of $500–$5,000.
In Tollett, the Supreme Court held that, following a valid guilty plea for a state conviction, a defendant could not obtain a writ of habeas corpus by asserting that the grand jury that charged him, having excluded African Americans, had been unconstitutionally selected. Relying on earlier cases known as the Brady trilogy, the Tollett Court stated that a guilty plea is “a break in the chain of events which has preceded it in the criminal process” and that, therefore, a criminal defendant who pleaded guilty “may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the guilty plea.” The only issues that could be pursued after a guilty plea were the voluntary and intelligent nature of the plea and whether the defendant’s counsel provided competent representation.
In two subsequent cases, the Court determined that certain types of claims could be raised on appeal after a guilty plea. The defendant in Blackledge v. Perry, 417 U.S. 21 (1974), was charged and convicted in a North Carolina court of a misdemeanor assault and availed himself of his statutory right to a trial de novo in a higher state court. The prosecutor then charged the defendant with a felony assault offense based on the same incident. The defendant pleaded guilty to that charge and appealed, asserting that the prosecutor had violated due process through vindictively bringing the more serious charge to punish him for exercising his statutory right to a new trial.
According to the Blackledge Court, this issue survived the guilty plea and could be raised on appeal. The Court found for the defendant and reversed the conviction. It reasoned that, although Tollett and the Brady trilogy involved constitutional issues that were held to be waived by guilty pleas, “none went to the very power of the State to bring the defendant into court to answer the charge against him.” The Supreme Court in Blackledge held that neither McMann v. Richardson, 397 U.S. 759 (1970) (one of the Brady trilogy, concerning use of an allegedly coerced confession against the defendant), nor Tollett, (concerning the composition of the grand jury), involved prosecutions that could not properly be brought. By contrast, in Blackledge allowing the felony charge to go to trial violated the Due Process Clause as a vindictive punishment for the defendant’s exercise of statutorily guaranteed rights. The Blackledge Court referred to the “defendant’s right not to be haled into court upon the felony charge.” Therefore, his guilty plea did not prevent him from attacking his conviction through a federal habeas corpus proceeding.
Similarly, a claim that a prosecution violated the right against double jeopardy can be maintained in a habeas action despite a guilty plea, because it too involved a prosecution that should never have been allowed. In Menna v. New York, 423 U.S. 61 (1975), the defendant was called to testify before a grand jury about a murder conspiracy; in exchange for his testimony, the defendant was granted immunity barring prosecution for the crime about which he testified. He refused to answer the questions of the grand jury and received a 30-day sentence for contempt of court. Subsequently indicted for his refusal to answer the questions, the defendant claimed that the indictment violated double jeopardy because he had already been found in contempt and sentenced for the same offense; the trial court denied his motion to dismiss the indictment. He then pleaded guilty and was sentenced. On appeal, the New York Court of Appeals affirmed the conviction, holding that under Tollett, the defendant had waived the issue by pleading guilty. The Supreme Court reversed. Relying on Blackledge, the Menna Court indicated that the guilty plea is not a waiver of the issue if “the State is precluded by the United States Constitution from haling a defendant into court on a charge.” The Supreme Court did not rule on the double jeopardy issue but remanded the question to the New York Court of Appeals.
Class asserts that a defendant pleading guilty does not lose the ability to argue on appeal that the statute of conviction was unconstitutional as long as he had presented the issue to the trial court before making the guilty plea, which he had done, and had not made an explicit waiver of the issue when he pleaded guilty, which he claims not to have done. Thus, his assertion is that the Court should treat the constitutionality of a criminal statute as similar to the Blackledge and Menna exceptions rather than being governed by the Tollett rule. In Class’s view, Tollett “stands for the proposition that a valid guilty plea admits factual guilt and thus removes that issue from the case.” He contends that Tollett is not applicable here because Class never denied that he had weapons in his vehicle and the vehicle was parked on the Capitol Grounds. Class does not contest that a defendant can waive the right to an appeal totally or waive the issue of constitutionality of the statute on appeal, but contends that neither his plea agreement nor the Rule 11 colloquy made such a waiver.
In his view, the government has no jurisdiction to prosecute under an unconstitutional statute, and thus, his conviction should be voided despite his guilty plea. He is not objecting to a ruling on admissibility of evidence or the application of a procedural rule, which would be barred from appeal by a guilty plea, but rather to the government’s ability to obtain a conviction at all. According to Class, “the assertion that the underlying statute is unconstitutional most certainly would stand in the way of conviction even if factual guilt is established, since the State has no lawful basis for convicting a defendant in the absence of a valid statute criminalizing his conduct.” To support his argument, Class points to earlier Supreme Court decisions finding statutes unconstitutional in cases in which the defendant pleaded guilty. In those cases, however, the government never claimed that the issues were waived, and thus, the Court did not make any ruling on the issue. In addition, he notes a split among the appellate courts on the issue raised in this case and refers to some Supreme Court decisions regarding the retroactive application of its decisions to pending appeals.
Class’s second argument is that he never explicitly waived the issue of the statute’s constitutionality. The D. C. Circuit did not address the issue. Therefore, if the Court does not rule in his favor on his first argument, Class urges the Court to remand the case to the D.C. Circuit for a ruling on whether he had in fact waived the issues.
The United States contends that the court of appeals correctly held that Class made an unconditional guilty plea, voluntarily and knowingly, and therefore forfeited his right to contest the unconstitutionality of the statute. He clearly could have attacked the statute’s unconstitutionality on appeal after conviction had he pleaded not guilty or had he made a conditional plea under Rule 11(a)(2), but he chose to do neither. During the plea colloquy, Class stated that he understood that he was giving up the right to appeal most issues, including constitutional claims. The interest of finality supports denying appeals when a defendant has not made a conditional plea reserving specified claims. The government stresses that the defendant may make a valid guilty plea waiving most issues for appeal as long as the record shows that the defendant knew his rights and voluntarily relinquished them, which the United States contends is clearly true in this case.
According to the government, a federal court clearly has jurisdiction over a charge based on a statute that has not been found to be unconstitutional. It contrasts the claim in the present case to the situations involved in Blackledge and Menna, in which, if the defendant’s arguments were correct, the charge should never have been brought. The United States also relies on Williams v. United States, 341 U.S. 58 (1951), for the proposition that a district court has jurisdiction to adjudicate charges against a defendant under a statute the defendant claims is unconstitutional. The government points to dismissal of numerous appeals of criminal convictions, in which the defendant claims that the statute of conviction was unconstitutional, because the defendant had failed to raise the issue in the trial court or preserve the issue for review. These rulings, it argues, would not be possible if the alleged unconstitutionality of the statute had deprived the court of jurisdiction over the case. As to the cases Class cites regarding retroactivity, the government finds them inapplicable, because they all refer to instances where the statute involved in a criminal case has been declared unconstitutional by the Supreme Court and thus bar convictions in other cases in which the appeal is still pending.
If the Court were to hold as Class requests that a guilty plea does not prevent a defendant from challenging on appeal the statute of conviction as unconstitutional, this would be a significant extension of the Blackledge and Menna exceptions to the Tollett rule. Such a holding would apply not just in federal criminal cases, such as the present case, but also to the more numerous state court convictions. Obviously, that ruling would affect only cases in which the defendant questioned the constitutionality of the statute under which he or she was convicted. The language of the Court’s decision might encourage arguments for broader exceptions to the Tollett rule.
On the other hand, a ruling that such claims could not be considered on appeal would insulate most statutes from adjudication of this constitutional issue, unless the defendant pleaded not guilty or made a conditional plea. Many states do not allow conditional pleas, so that method of reserving an issue for appeal despite a guilty plea would not be available in many jurisdictions if the Supreme Court rules against Class. Enough benefits exist to encourage defendants to plead guilty that many defendants may simply surrender the issue of the statute’s constitutionality; thus prosecutors could continue to file charges based on statutes alleged to violate the United States Constitution.
A ruling for Class might be seen as inconsistent with the language of Rule 11(a)(2), which does not indicate that any type of issue is automatically appealable after a guilty plea but instead requires a defendant to specify what issues should be raised on appeal after a conditional plea, so that the prosecutor and court can decide whether to allow them to be considered. A ruling in Class’s favor would mean that a defendant pleading guilty would have to seek a conditional plea only as to issues other than the constitutionality of the statute under which charges were brought.
If Class were to succeed on this argument, the government’s response in future cases might well be to include routinely a waiver of the right to appeal any issues or the right to appeal regarding the constitutionality of the statute of conviction in plea agreements and in the guilty plea colloquy in court. Obviously, as with any plea, whether in federal or state court, the record would have to show a knowing and voluntary waiver of rights. Thus, the practical effect of the Court adopting the rule sought by Class may be minimal. Class might obtain resolution of his challenge to the statute; if successful, his conviction would be vacated. Litigants making an explicit waiver of the right to challenge the statute after a guilty plea would be unable to challenge their convictions. In some future case, a defendant agreeing to such a waiver but seeking to raise the statute’s unconstitutionality on appeal might argue that no such waiver should be allowed, even if it were knowing and voluntary, because a prosecution under an invalid statute is beyond the jurisdiction of a court. In this case, both parties accept that such a waiver is permissible, but in another case, a defendant might seek to contest that view.
The Supreme Court could avoid addressing the issue in this appeal by remanding this case to the D.C. Circuit for a ruling on the issue it did not address, whether Class had in fact, in his plea agreement or in the guilty plea colloquy in court, waived the issue of the constitutionality of the statute under which he was convicted. Even a ruling for Class on the effect of his guilty plea might not result in the reversal of his conviction if it were accompanied by a remand to the appellate court, to determine if the plea agreement and colloquy had waived his right to appeal the issues regarding the statute’s constitutionality. If upon remand the appellate court ruled for the government on this issue, the conviction would stand and there would be no decision on the validity of the statute.
Alan Raphael is a member of the faculty of Loyola University Chicago School of Law and teaches criminal procedure and constitutional law. He can be reached at firstname.lastname@example.org. PREVIEW of United States Supreme Court Cases, pages 4–7. © 2017 American Bar Association
In Support of Petitioner Rodney Class