Wednesday, October 30, 2013
Ind. Decisions - 7th Circuit decides one Indiana case today
In LANCE FOSTER v. UNITED STATES OF AMERICA (ND Ind., Lozano), a 14-page opinion, Judge J.P. Stadtmueller of the ED Wis., sitting by designation, writes:
The appellant, Lance Foster, was charged with distributing crack cocaine and a separate conspiracy-to-distribute charge. Against the advice of his appointed counsel, Visvaldis Kupsis, Mr. Foster rejected two proposed plea agreements, both of which would have resulted in a sentence of close to twenty years imprisonment. Atty. Kupsis was particularly concerned with this decision, because Mr. Foster faced a possibility of a life sentence, if he was convicted of the conspiracy charge at trial. Undeterred, Mr. Foster decided to take the case to trial. Only ten days before his trial was scheduled to begin, the Government filed an information, pursuant to Title 21, Section 851, of the United States Code, stating that Mr. Foster had a prior felony drug conviction. The effect of filing this information was to increase the mandatory minimum penalty on both the distribution and conspiracy counts from 10 to 20 years. Atty. Kupsis had not anticipated that the Government would file the information, nor had he advised Mr. Foster that such was a possibility. After receiving notice of the information, Atty. Kupsis suggested to Mr. Foster that they attempt to revive one of the earlier proposed plea agreements. Mr. Foster refused, stating that “20 years is life,” apparently referring to the approximate length of imprisonment attendant in each of the prior proposed agreements. Thus, trial went forward, and—quite to his surprise— Atty. Kupsis successfully defended Mr. Foster against the conspiracy charge. The jury, however, still voted to convict him on the distribution count. The Section 851 information triggered a higher mandatory minimum penalty of 20 years on that count, and thus the district court sentenced Mr. Foster to 20 years imprisonment. This result effectively made the trial inconsequential, as it was likely that Mr. Foster would have received the same (or a slightly lower) sentence, had he agreed to plead guilty to the conspiracy charge. Thus, he filed a No. 12-1961 3 Section 2255 motion, arguing that Atty. Kupsis provided constitutionally ineffective assistance of counsel, due to his failure to anticipate and report to Mr. Foster the potential for a Section 851 information. The district court held an evidentiary hearing on Mr. Foster’s motion, and ultimately held that Mr. Foster could not establish that he was prejudiced by Atty. Kupsis’ representation, because he expressed an unwillingness to accept any of the plea agreements offered to him. Mr. Foster appealed, but this Court agrees with the district court’s assessment, and therefore affirms its denial of Mr. Foster’s motion. * * *
For all of these reasons—the lack of any credible evidence offered by Mr. Foster, and the amount of countervailing evidence against him—we conclude that the district court was correct in finding that Mr. Foster was not prejudiced by Atty. Kupsis’ failure to alert him to the possibility of a Section 851 14 No. 12-1961 information. We therefore AFFIRM the district court’s denial of Mr. Foster’s Section 2255 motion.
Posted by Marcia Oddi on October 30, 2013 04:20 PM
Posted to Ind. (7th Cir.) Decisions