Man sentenced to life not denied effective counsel, 7th Circuit holds

A man sentenced to life for sexually abusing two children could not convince the 7th Circuit Court of Appeals that his attorney was ineffective while representing him.

After David Resnick was convicted of sexually abusing two young boys and was sentenced to life, the 7th Circuit Court of Appeals in 2016 upheld his convictions. He sought rehearing en banc, which the 7th Circuit denied over the dissent of four judges who believed Resnick deserved a new trial based on the admission of evidence that he refused to take a polygraph test.

When his conviction became final, Resnick filed a motion under 28 U.S.C. § 2255 to vacate his conviction and sentence, alleging his defense counsel was ineffective during the plea process, throughout the pretrial and trial proceedings, and at sentencing. But the U.S. District Court for the Northern District of Indiana denied his motion, concluding none of Resnick’s alleged errors amounted to a violation of his Sixth Amendment right.

Back before the 7th Circuit, the federal appeals court in a Tuesday opinion again affirmed in David A. Resnick v. United States of America, 20-1221.

Addressing Resnick’s claims that his counsel was ineffective for failing to seek specific performance of his first plea agreement, the 7th Circuit recalled that Resnick and the government had signed an initial plea agreement, but when a dispute arose over his refusal to admit to certain conduct during the change of plea hearing, the agreement fell apart. He later rejected the government’s amended plea deal, landing him with life in prison instead of a guaranteed 20-year sentence.

“As he tries to distinguish the two plea offers, Mr. Resnick poses the wrong question. When addressing prejudice here, we do not ask whether the district court could have imposed a different sentence under the first plea agreement. Rather, we ask whether there is a reasonable probability that his sentencing outcome would have been different under the first agreement,” Circuit Judge Kenneth F. Ripple wrote for the unanimous 7th Circuit panel.

“… In his brief and at oral argument, Mr. Resnick could not point to any reason why the district court would have sentenced him below the Guidelines range if counsel had obtained enforcement of the first plea deal. Although he repeatedly emphasizes that the court could have sentenced him to less than twenty years, that bald assertion does not satisfy the ineffective assistance standard of reasonable probability,” Ripple wrote. “Given his agreement in the first plea deal that the Guidelines sentence of twenty years was reasonable, and the absence of any viable mitigation arguments, we are hard pressed to see why the district court would have sentenced Mr. Resnick to anything other than twenty years under the first plea deal.”

Thus, the panel concluded that Resnick, not trial counsel, was responsible for the sentence he ultimately received. It similarly found no merit among any of his 10 alleged errors by trial counsel during the pretrial and trial proceedings, concluding Resnick failed to identify errors that could combine to overcome the government’s strong case against him.

Finally, the 7th Circuit concluded Resnick’s counsel did not lead the district court to impose a higher sentence than he otherwise would have received.

“Mr. Resnick has failed to establish that his trial counsel’s performance during the plea process, trial, and sentencing violated his Sixth Amendment right to effective assistance of counsel. We, therefore, affirm the district court’s decision denying his motion to vacate under 28 U.S.C. § 2255,” the court concluded.

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