Complaint about lawyer leads to plea-agreement quashing

A convict's complaint that a prominent St. John's lawyer negotiated a plea agreement against his wishes has won a fight at the Newfoundland and Labrador Court of Appeal.

Christopher Wade Sutton, 25, argued that lawyer Averill Baker had obtained a deal with the Crown that would see him plead guilty to a break and enter that he insists he did not commit. The deal included guilty pleas on several other charges, with the Crown dropping 26 counts.

Three Court of Appeal judges agreed with Sutton's submission, and have ordered a new trial on a May 2010 break-and-enter, while also setting aside 16 months of a 30-month prison sentence he had received. [Read a copy of the decision here.]

That sentence was a key part of Sutton's appeal, as he claimed Baker had told him she would get a conditional sentence rather than jail time.

"I never admitted this offence to Ms. Baker, in fact, I denied it, and I never asked her to negotiate a plea agreement concerning this and the other outstanding charges against me," Sutton wrote in an affidavit brought before the three judges who heard the appeal.

Sutton, who admits to having a lengthy criminal record, said he had been willing to plead guilty to some of the offences, but was resolute in denying the break and enter. He says he was at home and has an alibi.

'I never admitted this offence to Ms. Baker, in fact, I denied it, and I never asked her to negotiate a plea agreement concerning this and the other outstanding charges against me' —Christopher Sutton

In his affidavit, Sutton reported that he had continual troubles getting Baker's attention during the late spring and summer of 2011, up until a court appearance in Clarenville on Aug. 22.

"I spoke to her several times by telephone from HMP. She told me each time that she had not had time to review my case and that she would send me a copy of the Crown disclosure," Sutton said in the affidavit. "I never did receive a copy."

"In early August, I again spoke to Ms. Baker by telephone. However, I had difficulty getting her to discuss my case because she was distracted by her personal problems," he said.

Those problems are not identified in the affidavit.

At the time, Baker was the target of a Crown action on another, far more high-profile case. The Crown sought to have Baker removed as counsel for Philip Pynn, who has been charged with second-degree murder in a slaying on Portugal Cove Road last summer.

Days after negotiating Sutton's plea agreement, Baker withdrew as counsel in the Pynn case.

Repeated attempts to contact lawyer

Sutton said that after their last phone conversation, he unsuccessfully tried on approximately 10 occasions to get Baker on the phone.

They met at the RCMP detachment in Clarenville, where he was being held in custody, on the morning of Aug. 22.

Sutton said when he told her he could not plead guilty to the break-in, she allegedly said, "Chris, I mean if I go bugging the Crown, this deal she's offering will not be offered!  Your best bet is to take the deal."

Sutton said Baker later told him the Crown was seeking a four-year sentence, which she said would be "absolutely ridiculous." The affidavit quotes Baker as then saying, "I can work wonders with Judge Kennedy. You’re lucky you don’t have Judge Porter."

When Sutton appeared later before Judge Patrick Kennedy, according to his affidavit, he found the procedure "difficult to follow because of the number of charges being called," and that he was confused about which charges he was pleading guilty to.

"However, I said nothing in court because I was still convinced that I would receive house arrest," he said.

'Not a competence of counsel case'

Justice Malcolm Rowe, who wrote the unanimous decision on behalf of the panel, found that Sutton's guilty plea on the May 2010 break-in was involuntary.

In reaching the conclusion, the justices reviewed Baker's actions.  

"This is not a competence of counsel case; rather, it relates to whether a guilty plea was voluntary," Rowe wrote. "That said, there are clear parallels between the two types of cases."

Rowe wrote that Baker was an experienced lawyer who had apprised Sutton of his "position at law," but indicated she could have done more.

"In another sense, he was not apprised of his position in law, in that his counsel had not reviewed with him the Crown’s disclosure, nor had she in any meaningful way discussed the case with him before August 22, 2011," Rowe wrote.