Legal Question in Legal Malpractice in Iowa

After I learned that my boyfriend did not get to view & object to the findings in his PSI report prior to sentencing I became concerned about a violation of his rights. His family paid nineteen thousand dollars for an attorney who I feel did more harm to his case than help. It seems his lawyer convinced him to plead guilty and wave his right to Apprendi.

At sentencing, it's not much of a problem to 'run the drug amount up' to whatever level is desired based upon allegations, unsubstantiated statements, hearsay and just plain 'guesstimation.' This is no longer allowed under Apprendi,

but his lawyer told him to waved this right under Apprendi, so he did without any knowledge or understanding of its meaning or it ever being explained.

Than at sentencing he received a sentence that was greater than his actual guilt. .

His lawyer said it was the mandatory minimum for what he was accused of so it was the best way to go. He agreed to this in fear that if he went to trial (and if found guilty) he was likely to get an even longer sentence than his lawyer had anticipated to be able to get him without going to a trial.(*this is what his lawyer told him would likely happen)

This is Because the judge found him guilty based only on A preponderance of the evidence; which is merely some indication that an individual probably committed the act alleged and sentenced him to a ten years.

My boyfriend never got to review his PSI report because his lawyer did not show it to him at all and he was unaware of the importance of it regarding his sentencing and his lawyer did not see it as an issue instead he got defensive and lied to me by saying he read the PSI to him over the phone on july 28th

When, in fact, he did not do this. When we asked to see the PSI the attorney said he shredded it already and it was illegal for anyone to see it or have a copy. Is this true? What can we do?

Below are some court papers that I thought to be important and questionable. Also, some documentation of my own. Please Help.

Below is an email I sent to lawyer:

Mr.

This message is in regard to defendents recent sentencing. He has made it aware to me that he was not able to review or object to the findings in his Pre-sentence Investigation Report prior to his sentencing. I understand this to be a vital process that may have been ignored. Can you please further explain this error to me, and send a copy of his PSI report to me also please. He is aware and agreed to the release of these documents. Please contact him for confirmation.

Thank you for your time,

Sunset Gifford 9/26/09

9/30/09 6:20pm Lawyer called me and said that he had contacted the P.O. and is in the process of contacting the judge to see if the release of his PSI was possible. He said he had to do this because the P.O. emailed him back and said �absolutely not� in regards to his request. He then said that on July 28th he went over every paragraph of his PSI report on the phone with him. He stated that because he felt it to be too far to drive for him to come and meet with him and to let his review it himself. LAWYER said it was defendants own fault because he messed up by not meeting the conditions of his pre-trial release and that is why they were unable to meet to go over it. (�Wasn�t going to drive ten hours �) He also stated �what difference does it make �if they reviewed the PSI over the phone or in person. He also stated that it was illegal for anyone to have a hard copy of the PSI report and that if he did in fact meet to review it with defendant (which he didn�t) that at that time defendant would be able to look over the PSI while mike was present, but not be able to keep a copy for himself to review any further. Lawyer also inquired whose concern it was regarding the PSI whether it was defendants family members or if it was I and defendant who was concerned. He stated that he had done nineteen thousand dollars worth of work on defendants case and that had not been paid in full as of yet by defendants father and was wondering if our concerns are the reason behind him not being paid. I stated that it was mine and defendants concern because we felt it was his right to review and make objections to his PSI report prior to sentencing.

9/30/09 6:42 Defendant called me and I told him what lawyer said in regards to his PSI and defendant responded by saying:

9/30/09 6:42 pm defendant said that he in fact called lawyer on the 28th and had only five min. left on his card, (Lawyer was in north Carolina) he and lawyer talked about defendants guidelines being raised and possible time he would serve (no mention of PSI) He said he was going to call defendant back. But never did.

I then told defendant to call and confront lawyer on his statement and then to call me back.

9/30/09 6:58 defendant called me back; he said he just spoke with lawyer and he then inquired about the failure to review his PsI. Then lawyer responded that he is trying (�Tomorrow�) to get the judge to sign a release so that he can then send defendant a copy of his PSI to allow him the chance to see it. Also, he stated that ten hours was too far for him to drive. He did not answer the question regarding the fact of whether they had reviewed the PSI or not.

THE COURT:

Mr. Bishop, I advise you you have the

right to a jury trial on that issue. You have the right to

submit that issue to a jury as a part of the case, and for the

mandatory minimum sentence that would apply and the maximum

sentence that would apply on a 500-gram quantity, the government

would have to prove -- prove that to the jury beyond a

reasonable doubt.

If you don't agree to that quantity, I generally

cannot go forward with the plea hearing.

***********************

But I understand, Mr. Nelson, you want to offer a

stipulation or a -- an agreement; is that correct?

MR. lawyer: The defense position, Your Honor, is that

the actual weight involved is not an element of the offense and

is to be determined by the sentencing judge at the time of the

sentencing. This is in accordance with the decisions of the

Eighth Circuit Court of Appeals including the recent decision of

United States versus Webb which is at 545 Fed. 3d 673 which

specifically sets forth that facts that increase a mandatory

minimum sentence need not be proved to a jury beyond a

reasonable doubt as long as the penalty was within the range ofthe convicted offense.

The Webb decision cited to United States versus

Aguayo-Delgado at 220 Fed. 3d 926 and United States versus

Jenkins at 537 Fed. 3d 894.

The statute sets forth the elements of the offense

that must be proven beyond a reasonable doubt, and drug quantity

is not an element unless the quantity can and does lead to the

imposition of a sentence greater than the otherwise applicable

statutory maximum.

And the problem, Mr. Nelson, is that I don't -- we can

talk about what's likely, but I don't know that Judge Bennett

would not, for example, want to impose a sentence of 45 years

reason I've gone over that with my client, expressed to him his

constitutional rights under Apprendi. And he expressly waives

the right to have a jury-based decision beyond a reasonable

doubt as to the weight involved in this case. Instead he waives

any rights that he might have with regard to a jury finding

beyond a reasonable doubt as to weight and expressly reserves

that decision with the -- with the district court at sentencing,

understanding that the sentencing judge will use a preponderance

of the evidence standard.

More than anything, the Apprendi case has spotlighted the glaring deficiencies in the criminal justice process under the Sentencing Reform Act of 1984, the so-called "new law." Prior to the new law, for example, if a person was arrested with a controlled substance, the amount was treated as an essential element of the offense that had to be studied and considered by a jury.

THE COURT: And do you understand what your attorney

is proposing is that he would allow the district court judge to

decide this by a preponderance of the evidence to decide whether

you're responsible -- the amount of methamphetamine you're

responsible for and that this could affect the maximum sentence

that's available to the judge and the mandatory minimum as well

under the statutes? You understand that?

THE COURT: Do you understand that the district court

judge could find by a preponderance of the evidence that you're

responsible for 500 grams or more of methamphetamine and if the

judge does that, the statutory ranges then would be 10 years to

life?

MR. WEHDE: Your Honor, the -- as we indicated before

the hearing, the government's position is that it objects to the

defendant entering a plea in this manner, the Court accepting it

in this manner. We believe that under Apprendi these facts must

be either proved to a jury regarding the quantity or admitted

to. Those are the two portals that -- my understanding of Apprendi that are allowed

I do believe this is an issue that the defendant

himself can waive his Apprendi right and that he can stipulate

to the judge going ahead with this at sentencing.

MR. WEHDE: It's based on an actual distribution, Your

Honor. I would indicate for the record that prior to the

proceedings today that the parties were discussing the

possibility of dismissing that count. I did not have authority

for that as yet.

As the Court is aware, at least at this juncture, that

requires U.S. attorney approval for the Northern District of

Iowa. I submitted that request some time back, and it either

was overlooked or just hasn't been decided yet. But I have

indicated to Mr. Nelson that I would -- I would seek that answer

prior to his client having to plead guilty to Count 2.

THE COURT: Well, right now are we going to go ahead

with the guilty plea hearing on Count 2 or --

MR. WEHDE: It's up -- it's up to them.

THE COURT: Well, Mr. Nelson, it's up to you, of

course. You and your client can either plead guilty to Count 2,

or you can plead not guilty in which case it will remain on the

trial docket, and we can have a plea hearing later if you want

on Count 2. How do you want to proceed?

MR. NELSON: Your Honor -- Your Honor, defendant will

just plead guilty to Count 2.

THE COURT: Do you know of any possible defenses to

the charges you have not considered and discussed with your

client?

MR. NELSON: No, Your Honor.

At that hearing he'll review the presentence

investigation report. He'll consider all the evidence offered

at the sentencing hearing. He'll listen to the arguments of the

lawyers. He'll listen to your statement. And then he'll arrive

at his own guideline calculation which could be different from

anything we've talked about here. He'll look at the presentence

investigation report, and he'll come up with his own

calculations.

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