Good evening:
Mr. Zapp, I would like to ask a question. My case is as follows: I was arrested in a house along with others, and our charges involved a quantity of drugs. My codefendants were sentenced to 72 months. I was charged as an organizer, and got 151 months. My attorney told me that if I pleaded guilty I would not have to serve time and would just be deported. I trusted his word and signed the plea agreement. I just trusted what he told me! The day we signed everything we were told that we could get “10 to life.” I did not understand what they were telling me because I don’t speak English. I just followed my lawyer’s advice.
I feel that this is unfair because we were all doing the same thing. I think the sentence is too long, especially because this is my first offense. I hope you can enlighten me as to what I can do. So far, I have filed a Motion 2255 alleging ineffective assistance of counsel, trying to appeal, but the motion was denied. When I asked for an explanation for the denial, I was told that I had to pay $505 for the paperwork to review my case again. Supposedly the fee is for court costs. Honestly I hardly understand this, so I would like to ask if you could please explain or guide me as to what course to take.
Sincerely,
A Defendant
Dear Sir:
First, we must say that your attorney could not have promised you only deportation because attorneys cannot promise anything at all. To ensure you are informed as to what is happening, the judge himself will ask you if anyone has promised you anything, and you answered no. You must have said that, because no judge would allow a guilty plea without your having answered that question in the negative. Also, you cannot say that “I didn’t understand what they were telling me because I don’t speak English,” because there are always interpreters by your side in court.
If you filed a 2255 and it was denied because you did not pay the court costs, you should either pay the fee or declare that you are indigent, and they have to accept it. But we think that all this is a waste of time. Your attorney will deny everything you say. The Court will also show you your answer that no one made you any promises. And they will not accept your claim that you did not understand what was going on because you only speak Spanish, as the court provides the services of an interpreter. And it appears that you did not receive the two-point reduction because you were sentenced under the mandatory minimum rather than the Sentencing Guidelines. Of this, we are not sure.
It is a shame, and we hope you will pardon our frankness, but this is the most common complaint we receive from defendants. “I am a defendant and I trusted my lawyer. My lawyer told me to plead. He promised me that I would get probation or some other sentence and I got a lot more time. What can I do?”
The short answer is: listen to the judge when you plead guilty. If there is anything that a judge says that seems contradictory to what your lawyer or even the prosecutor has said, even the slightest contradiction, speak up right away because what the judge says controls. So if the judge asks if no promises have been made, he really wants to know. If the judge says nobody can predict what you can get and asks if you understand that, he or she really wants to know. If the judge asks if you have any questions or doubts, and you have one, you’d better ask or, as they say at weddings, “forever hold your peace.”
If you do not speak up before it is all over, you have no way of undoing the problem. Judges ask those questions precisely because they want to make sure that nobody can come back and say to them that their lawyer promised them a different sentence or they did not understand what was going on. They will throw your recorded answers in your face.
Listen to your judge. Your answers to the judge’s questions are taken seriously. If you have the slightest shred of doubt, speak up. This is your life. This is your opportunity to control your own destiny somewhat. You have to be vigilant about that control and never give it up to anyone. It is no excuse to say “I trusted my lawyer.” No one is going to listen to you.
David Zapp and Johanna Zapp