Careful What You Wish For

My job, as an appellate criminal defense lawyer, is to convince a higher court that my client’s fate in the lower court was undeserved. The punishment too severe, the evidence insufficient to convict. Maybe I’ve been going at this all wrong.

Brian Pinkas is on trial for first-degree murder in Illinois, just as he asked to be. He’s already pleaded guilty to that crime, but he tried for years to unsuccessfully withdraw his plea, using such traditional arguments as the ineffectiveness of his lawyer. When those didn’t work, he changed course:

When none of that worked, he resorted to a surprising claim — that he was not given a stiff enough prison sentence.

On that point, Illinois’ 5th District Appellate Court agreed.

In the wording of their 2011 order, the appeals judges seemed to acknowledge his peril in bringing it up. They said they were remanding the case to the trial court ‘so that he can withdraw his guilty plea and have his conviction and sentence vacated, if he so desires.’ The order warns that he would not only be liable to prosecution all over again but could see his 20-year term become 45.

His original 20-year sentence, the statutory minimum for his offense of conviction, by law should have been enhanced by an extra 25 years because a firearm was involved, but it was not. So he, in essence, argued on appeal that the court erred by not punishing him enough. Begging for punishment can be an effective plea at sentencing:

I’ve rarely seen it deployed as an appellate strategy, however. Such “bank error in your favor” situations do occur, but usually any subsequent litigation is all about trying to keep the error from being corrected. A few year ago, the Supreme Court heard a case where the defendant got a break at sentencing (then foolishly appealed), only to have the appeals court recognize the error and remand the case for the correct sentence to be imposed. The Supremes held that, where the prosecution doesn’t appeal the sentence, appellate courts don’t have the ability to notice the error on their own and move to correct it.

So, credit to Pinkas (and his attorney, if he had one) for spinning this odd appellate theory into gold. Whether it ultimately pans out (read more of the ongoing retrial here) is yet to be seen. One thing’s certain – if he’s convicted, you can bet Pinkas will get every year coming to him.