488
Opinion of Souter, J.
Justice Breyer, concurring.
I write to emphasize that the question presented concerned the filing of a "notice of appeal following a guilty plea." Pet. for Cert. i (emphasis added). In that context I agree with the Court. I also join its opinion, which, in my view, makes clear that counsel does "almost always" have a constitutional duty to consult with a defendant about an appeal after a trial. Post this page (Souter, J., concurring in part and dissenting in part); cf. ante, at 479-481.
Justice Souter, with whom Justice Stevens and Justice Ginsburg join, concurring in part and dissenting in part.
I join Part II-B of the Court's opinion, but I respectfully dissent from Part II-A. As the opinion says, the crucial question in this case is whether, after a criminal conviction, a lawyer has a duty to consult with her client about the choice to appeal. The majority's conclusion is sometimes; mine is, almost always in those cases in which a plea of guilty has not obviously waived any claims of error.1 It is unreasonable for a lawyer with a client like respondent Flores-Ortega to walk away from her representation after trial or after sentencing without at the very least acting affir-1 I say "almost" always, recognizing that there can be cases beyond the margin: if a legally trained defendant were convicted in an error-free trial of an open-and-shut case, his counsel presumably would not be deficient in failing to explain the options. This is not what we have here. Nor is this a case in which the judge during the plea colloquy so fully explains appeal rights and possible issues as to obviate counsel's need to do the same; such a possibility is never very likely and exists only at the furthest reach of theory, given a defendant's right to adversarial representation, see Smith v. Robbins, ante, at 296-297 (Souter, J., dissenting). Finally, of course, there is no claim here that Flores-Ortega waived his right to appeal as part of his plea agreement; although he pleaded guilty, the record shows that he and the State argued before the trial court for different sentences, and he had little understanding of the legal system. The fact of the plea is thus irrelevant to the disposition of the case.
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