A former Texas prison inmate has filed a legal malpractice case against his former criminal defense attorneys, claiming he spent nearly two years in a penitentiary because of the bad legal advice.
Plaintiff Colton Lester recently filed a lawsuit in an East Texas district court seeking more than $1 million in damages against Nacogdoches attorney Seth Johnson and Onalaska attorney Cecil Berg, alleging he was wrongfully imprisoned because of their gross negligence.
According to his petition, Lester was charged with attempted online solicitation of a minor in 2014, when he was 17 years old. The nature of the conduct leading up to the charge is not detailed in the petition.
That year he hired Johnson to represent him. Johnson told Lester he was a criminal law specialist and, after investigating the matter, advised him to plead guilty. Johnson negotiated a deal with prosecutors that placed Lester on deferred adjudication probation for five years.
In 2016, a motion to revoke Lester’s probation was filed, and Berg represented him in a probation revocation hearing, which resulted in Lester being sentenced to three years in the Texas Department of Corrections.
However, in 2017, Lester was contacted by the State Counsel for Offenders, who informed him for the first time that the statute upon which he was convicted was void prior to his offense date. In 2013, the Court of Criminal Appeals had ruled in Ex Parte Lo that section 33.021(b) of the Texas Penal Code—the law that established online solicitation of a minor as a felony—was unconstitutional as vague and overly broad. Lester’s conviction was ultimately vacated by the CCA in 2018, according to the petition.
“Unbelievably, and most egregiously, defendants failed to disclose to Lester that the statute under which he was charged was void and non-existent,” the petition alleges.
“Thus, due to defendants’ negligence, gross negligence and breach of fiduciary duty, Lester lost his freedom at the tender age of 19 and was forced to endure almost two years of prison time for allegedly committing a crime that did not exist,” the petition continued. “Lester was thrown in prison at a time in his life when his friends and others his age were entering college and/or planning for their future in the world. Needless to say, Lester has suffered severe emotional distress due to the gross misconduct of defendants and lost time that can never be returned to him.”
Johnson declined to comment, and Berg did not return a call for comment.
David Kassab, a Houston legal malpractice attorney who represents Lester, alleges that Johnson and Berg “messed up and they need to be held accountable like any other professional.”
Kassab noted that legal malpractice cases against criminal defense attorneys are rare in Texas because of the Peeler Doctrine—a rule derived from the 1995 Texas Supreme Court decision in Peeler v. Hughes & Luce, which held that a person convicted of a crime cannot sue his criminal defense attorney for legal malpractice unless he has been exonerated by an appellate court.
“Not many cases come across our desk where the client has been exonerated, which is rare in Texas because you have to prove that you’ve been exonerated to sue your lawyer,” Kassab said. “You can literally sleep through the entire trial, and unless the client was exonerated, there is not much the client can do about it.’’