Michael Shane McCormick, Sr. v. United States

Under the Sixth Amendment, counsel’s duty to “consult” regarding a criminal appeal has two independent requirements—“advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant’s wishes.” Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000) (emphasis added). Here, the Sixth Circuit conceded it split from other circuits, deepening lower-court confusion in two closely related respects: First and most fundamentally, the Sixth Circuit neglected the second requirement of Flores-Ortega’s definition by upholding a “consultation” without finding that counsel made a reasonable effort to discover the defendant’s wishes at any point. Two other circuits have followed this approach, but seven circuits require such a finding. Relatedly, the Sixth Circuit declined to require that counsel make a reasonable effort at or after sentencing to discover his client’s wishes even though all agree that the defendant decided to wait until after sentencing to decide whether to appeal and was obviously dissatisfied by the sentence. Again, two other circuits have followed this approach, but five others have explicitly disagreed. How to analyze counsel’s duty to consult about an appeal has drawn nearly every circuit into conflict, and this confusion can arise in every criminal conviction. The question presented is: Whether, to adequately “consult” regarding an appeal when the defendant says he will decide after sentencing or is obviously dissatisfied with his sentence, defense counsel must make a reasonable effort to discover the defendant’s wishes at or after sentencing.