Note: the April hearing was postponed in a last-minute emergency motion to July 31. See the July 31 story here.
James McDevitt, the former Palm Coast resident serving 40 years in prison on a 2015 conviction for rape, is back at the Flagler County jail for a court appearance scheduled for Thursday to contest his sentence. McDevitt is alleging ineffective counsel by two successive lawyers. But that hearing may now be rescheduled for later in May.
McDevitt, who turns 27 at the end of the month, was arrested and charged with the rape of a 38-year-old woman in an empty lot in Flagler Beach in 2013, an incident witnessed in part by a resident across the street who’d gone out to his porch, and called 911. McDevitt initially pleaded not guilty then, shortly before trial–where he faced life in prison if convicted–changed his plea. He was defended by Daytona Beach attorney Michael Lambert and sentenced by then-Circuit Judge J. David Walsh.
Late last May McDevitt filed a motion for post-conviction relief. It was dismissed on technical grounds but McDevitt refiled a proper motion requesting an evidentiary hearing on several claims, notably claims that he received ineffective counsel. He is asking that his conviction and sentence be vacated.
McDevitt was initially represented by attorney Kenneth Hamburg. In pre-trial proceedings, the prosecution offered McDevitt a deal: 10 years in prison, according to the motion he filed. Hamburg, McDevitt claims, informed him of the offer, “but failed to advise [him] to accept this offer as being in his best interest.” McDevitt is also claiming that Hamburg failed to tell him that he faced life in prison if found guilty. McDevitt now says through his current attorney–Daniel Hyndman–that he would have accepted the 10-year offer. The state eventually withdrew the offer, as it usually does when it is not readily accepted.
Lambert, one of the more skillful trial attorneys in the circuit, replaced Hamburg at a subsequent stage of the proceedings. McDevitt had agreed to a plea deal, but it was to be what’s called an “open plea” before the judge. That means the judge has discretion to sentence the defendant to a wide range: his sentencing score sheet was to show a minimum recommended sentence of 10 years, but the judge had discretion to sentence him to that, or to up to life in prison.
Lambert, according to McDevitt’s motion, “erroneously advised [him] that he would face a maximum of only 12-15 years prison [sic.] if he entered an open plea to the Court.” Lambert also “erroneously advised [McDevitt] that the Court would be lenient based upon [McDevitt’s] age.” The judge did neither. McDevitt now claims that had he been better advised of the potential consequences of an open plea, he’d have changed his plea again and requested a trial. After the plea and the sentence, McDevitt asked Lambert to file a motion to withdraw his plea, the current motion states, but Lambert did not file it.
McDevitt also claims that Lambert failed to tell him that there’d been some conflict between Lambert and Walsh previously, according to published reports, and that Lambert had not followed through on a potential defense based on McDevitt’s “well-documented learning disability.”
At the plea hearing, however, Lambert interrupted the judge’s questions to McDevitt to explain that when he was in grade school, high school and took a year in college at Daytona State, “he had a tutor with him the whole time,” Lambert said. “And when he would be required to take tests, the tutor would take the test with him to explain the questions to him and also explain the answers to him.”
“Have you been told that you have any type of learning disability or learning problem?” Walsh asked him.
“Other than my comprehension and reading, that’s about it,” McDevitt replied.
“And so what is your problem in reading?” Walsh asked.
“I struggle with it because of the comprehension.”
“Okay,” Walsh said. “And Mr. Lambert has gone over some of that with me a moment ago. Did you agree with everything he said, summarizing your history there?”
“Yes sir,” McDevitt replied.
They then turned to the plea agreement in writing. McDevitt said he’d gone over it with Lambert. “Mr. Lambert I know is quite experienced and thorough on this,” Walsh told him. “I’m sure he’s gone over everything in here with you and answered all your questions.”
“Yes sir,” McDevitt said.
The transcript from the plea hearing has McDevitt speaking in his own words and saying that Lambert had answered all his questions, and showing the judge himself explaining to him the risks of an open plea: “Now, Mr. McDevitt,” Walsh had told him, “the offense with which you are charged … is a life felony, meaning that your sentence could be anywhere from the guideline sentence that was noted on the guidelines up to life in prison. Do you understand the potential sentence there?”
“The court has now been presented with what’s called an open plea, which means that you are agreeing to enter this plea and leave it up to me, as the judge, to decide your sentence at a future date. Do you understand that?”
“In other words, there’s no agreement with the State on what your sentence will be at this time,” Walsh said.
The judge then asked McDevitt if he was pleading guilty. He was.
Circuit Judge Terence Perkins last July summarily denied McDevitt’s recent motion, rejecting the argument that Lambert failed to advise McDevitt on the dangers of an open plea, or that he didn’t tell him of a potential conflict with the judge.
But the judge left open for arguments on McDevitt’s two other claims: that his first attorney had not properly advised him of a 10-year offer from the state, and that Lambert failed “to adequately review discovery and depositions” with McDevitt, “including potential defenses.”
Assistant State Attorney Jason Lewis responded to the judge’s order by saying that the two claims require additional testimony, when it is likely that both of McDevitt’s attorneys, and McDevitt himself, may testify: that’s what led to Thursday’s evidentiary hearing.
On February 5, Perkins signed an order to have McDevitt transported from Taylor Correctional Institution in Perry, near Florida’s Big Bend. McDevitt was transported on April 4 and booked at the Flagler County jail in early morning. A day later, his attorney, Daniel Hyndman, filed an emergency motion to reschedule the hearing, citing the declining health of an elderly member of his family. Perkins has not yet ruled on the motion.