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Name: People v. Orozco
Case #: F056712
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 01/08/2010

A defendant cannot be found to have waived his presentence right in the trial court to challenge the effectiveness of his counsel when the claimed ineffectiveness relates to the advice appellant received at the time he entered the plea containing the purported waiver. Appellant entered into a plea agreement whereby he pled no contest to second degree murder and admitted firearm and gang enhancements. As part of the agreement, he agreed to waive any challenges based on ineffective assistance of counsel. The written plea form included a waiver of the right to bring a motion to withdraw the plea. At sentencing, appellant’s motion for a continuance to retain private counsel and bring a motion to withdraw his plea, which could be based on ineffectiveness of counsel, was denied by the trial court which found that appellant had waived such rights at the time of his plea. The appellate court reversed, agreeing with appellant’s position that because a motion to withdraw the plea would be outside appellant’s contemplation and knowledge at the time the plea was entered, a waiver could not be intelligently and knowingly made. A claim of ineffective assistance of counsel in connection with the making of the waiver agreement cannot be barred by the agreement that is the product of the alleged ineffectiveness. The judgment was reversed with the court directed to hold a hearing where appellant could move to withdraw his plea.