Sentencing Malpractice & “Actual Innocence”
To establish a claim for legal malpractice, generally, a plaintiff must prove 4 elements.[1] [2] For criminal malpractice claims[3], however, the plaintiff also has the burden of proving “two additional elements concerning proximate cause.... First, as a prerequisite, the plaintiff must have obtained postconviction relief. Second, the plaintiff must prove actual innocence of the underlying criminal charge by a preponderance of the evidence.”[4] This second element was recently addressed by the Washington Supreme Court in Piris v. Kitching, et ux., et al.[5] In the decision issued on July 7, 2016, the Piris Court ruled that a criminal defendant must establish actual innocence as “a necessary requirement to pursue the criminal malpractice claim and that no exception applies” when the court has acted within its authority, as in Christopher Piris’ case.[6]
In 1997, Piris was charged for several counts of rape of a child in the first degree, a felony for which the maximum term of confinement is life imprisonment.[7] Piris was originally sentenced to 159 months of imprisonment.[8] [9] Piris then successfully appealed, resulting in a corrected sentencing range of 146-194 months.[10] The appellate court sent the case back to the lower court for resentencing within the corrected range.[11] However, Piris did not get a new sentence until 12 years after his original sentencing. As a result, in 2012 when Piris appeared before the court on an alleged violation of his supervised release, the judge re-sentenced Piris to 146 months after realizing he had not been resentenced.[13]
Apparently, Piris’ lawyer never told him of the reversal of his 159-month sentence while the lawyer was closing Piris’ file but instead sent a letter advising the public defender’s office to schedule a resentencing hearing, which never happened.[14] Accordingly, Piris brought a sentencing malpractice claim against his trial lawyer, his appellate lawyer, and the King County Department of Public Defense, claiming the delay in sentencing caused him to spend an extra 13 months in prison, over and above what should have been allowed.[15] Since he had pled guilty, Piris attempted to argue that a narrow exception to the actual innocence requirement (via Powell) applied since he served 159 months instead of 146 months.[17]
In rejecting Piris’ arguments, the Washington State Supreme Court distinguished the narrow exception of Powell, pointing out that in Powell, the trial court below had imposed a sentence it had no authority whatsoever to order, and as a result, defendant Powell served an unauthorized felony sentence.[18] [19] However, unlike in Powell, Piris’ underlying conviction of rape remained unchanged after his appeal, and the court acted within its authority to sentence him for up to life imprisonment.[20] [21] [22] The Powell Court went on to reiterate the importance of the five public policy “underpinnings of the actual innocence requirement,” as discussed in Ang v. Martin.[23] [24] [25] Such public policy concerns are: (1) prohibiting criminals from benefiting from their own bad act, (2) maintaining respect for the criminal justice system, (3) removing the harmful, chilling effect on the defense bar, (4) preventing suits from criminals who may be guilty but could have gotten a better deal, and (5) preventing a flood of nuisance litigation.[26] [27]
Simply put—the Washington Supreme Court did not change but rather upheld existing case law on the actual innocence requirement for a criminal legal malpractice claim. So, even if someone serves more time than they had to, if that person is guilty and the conviction remains unchanged, then that person cannot bring a criminal malpractice claim against his/her attorneys.
— By Keobopha Keopong, Esq., Barnes Law
Keo Keopong is an associate attorney with Barnes Law, licensed to practice law in California.
The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] The elements for legal malpractice, generally, are: (l) the existence of an attorney-client relationship which gives rise to a duty of care on the part of the attorney to the client; (2) an act or omission by the attorney in breach of the duty of care; (3) damage to the client; and (4) proximate causation between the attorney's breach of the duty and the damage incurred. Hizey v. Carpenter, 119 Wn.2d 251, 260-61, 830 P.2d 646 (1992).
[2] Piris v. Kitching, et ux., et al., No. 91567-9, En Banc, pp. 5-6 <https://www.courts.wa.gov/opinions/pdf/915679.pdf>.
[3] "Criminal malpractice" is a phrase that has been widely used "to denote 'legal malpractice in the course of defending a [person] accused of crime."' Ang v. Martin, 154 Wn.2d 477, 482 n.1 (2005) (quoting Otto M. K.aus & Ronald E. Mallen, The Misguiding Hand of Counsel-Reflections on "Criminal Malpractice," 21 UCLA L. REv. 1191, 1191 n.2 (1974)).
[4] Id. at 6.
[5] Piris v. Kitching, et ux., et al., No. 91567-9, En Banc <https://www.courts.wa.gov/opinions/pdf/915679.pdf>.
[6] Ibid.
[7] Piris v. Kitching, et ux., et al., No. 91567-9, En Banc, p. 2.
[8] Piris’ original sentence is the bottom of the sentencing range of 159-211 months, calculated using an offender score of 7. Piris v. Kitching, et ux., et al., No. 91567-9, En Banc, pp. 2-3.
[9] Piris v. Kitching, et ux., et al., No. 91567-9, En Banc.
[10] The new sentencing range of 146-194 months is based on an offender score of 6, rather than 7. Piris v. Kitching, et ux., et al., No. 91567-9, En Banc, pp. 2-3.
[11] Piris v. Kitching, et ux., et al., No. 91567-9, En Banc.
[12] Ibid.
[13] Ibid.
[14] Ibid.
[15] Ibid.
[16] Powell v. Associated Counsel for the Accused, 125 Wn. App. 773, 106 P.3d 271 (2005) (Powell 1), and Powell v. Associated Counsel for the Accused, 131 Wn. App. 810, 129 P .3d 831 (2006) (Powell II) (collectively “Powell”).
[17] Ibid.
[18] Ibid.
[19] The Powell court found that "Powell's situation is closer to that of an innocent person wrongfully convicted than of a guilty person attempting to take advantage of his own wrongdoing." Piris v. Kitching, et ux., et al., No. 91567-9, En Banc, p. 9 (citing Powell I, 125 Wn. App. at 778.)
[20] Piris v. Kitching, et ux., et al., No. 91567-9, En Banc, pg. 8.
[21] Because any term of confinement Piris served was within the broad authority of the trial court, the argument for a Powell exception is inapplicable here. Piris v. Kitching, et ux., et al., No. 91567-9, En Banc, p. 12.
[22] “Both of Piris's sentences were within the court's authority. Piris's underlying conviction for first degree rape of a child was unaffected, and the later sentence reduction even if the actual time served was more-was within the court's authority. This brings us exactly under the reasoning and policy considerations of Ang. Whatever sentence was imposed or served is based on Piris' conviction, and any sentencing modification remains within the court's authority and discretion to impose.” Piris v. Kitching, et ux., et al., No. 91567-9, En Banc, p.11.
[23] Ang v. Martin, 154 Wn.2d 477 (2005).
[24] Piris v. Kitching, et ux., et al., No. 91567-9, En Banc, p. 8.
[25] Ang v. Martin also sets forth the actual innocence requirement.
[26] The Court stressed that "[u]nless criminal malpractice plaintiffs can prove by a preponderance of the evidence their actual innocence of the charges, their own bad acts, not the alleged negligence of defense counsel, should be regarded as the cause in fact of their harm." Piris v. Kitching, et ux., et al., No. 91567-9, En Banc, p. 8 (citing Ang, 154 Wn.2d at 485).
[27] Piris v. Kitching, et ux., et al., No. 91567-9, En Banc.