Actual Innocence Not Required Where Actual Failure To Catch Error Kept Client Locked Up

A criminal defendant need not prove actual innocence to sue his attorney for legal malpractice for the entry of an illegal sentence, according to a decision of the Kansas Supreme Court.

George Michael Garcia retained criminal defense attorney, Charles Ball, to represent him in a probation revocation proceeding. The district court accepted Garcia’s stipulation to violating probation, revoked his probation, and remanded Garcia to the custody of the Kansas Department of Corrections to serve his originally imposed prison term. But the journal entry of sentencing erroneously directed that Garcia was subject to postrelease supervision following his probation revocation, which error ultimately led to Garcia serving more time in prison than his original sentence.

Garcia sued Ball, alleging legal malpractice. When Ball failed to answer the petition, Garcia notified Ball of the amount of claimed damages and obtained a default judgment. The district court subsequently set aside the default judgment but ultimately dismissed the lawsuit because Garcia had not established his innocence under the exoneration rule, as set forth in Canaan v. Bartee, 276 Kan. 116, 123, 72 P.3d 911, cert. denied 540 U.S. 1090 (2003).

The court

Of note, Garcia’s claim of legal malpractice is factually distinguishable from that in Mashaney because it relates to an illegal sentence, rather than a wrongful conviction. Nevertheless, both errors resulted in significant deprivations of liberty, and Mashaney’s reasoning is equally applicable here. Accordingly, Garcia was not required to prove that he was actually innocent of either the crime for which he was illegally sentenced to a postrelease supervision term or the new crime that triggered his imprisonment for violating the unlawfully imposed postrelease supervision. Instead, Garcia was required to obtain post-sentencing relief from the unlawful sentence. That “exoneration” occurred when the district court acknowledged that it had imposed an illegal sentence by entering a nunc pro tunc order, setting aside the illegal postrelease supervision term. The propriety of using a nunc pro tunc order to correct an illegal sentence that has already been served is not before us. But the propriety of the district court’s dismissal of the legal malpractice action based on the exoneration rule is squarely presented here, and we hold that the district court erred in its application of that rule.

(Mike Frisch)