Counsel must fully and correctly inform a client of the nature of the charges against him or her, including the elements of those charges and possible defenses to the charges.[119]  The argument is particularly strong if the reporter’s transcript of the plea affirmatively shows the defendant was misinformed about an essential element of the offense.

 

            Ineffective counsel can be shown if counsel failed to inform the defendant of a potentially meritorious defense; that error would render the plea involuntary.[120]  Resolution of the “prejudice” inquiry will depend largely on whether the defendant can make a showing that the affirmative defense likely would have succeeded at trial.[121]  For example, counsel’s failure to file a meritorious motion to dismiss the charges on double jeopardy grounds has been held to be constitutionally inadequate performance.[122]

 

            Counsel’s errors in submitting jury instructions can also amount to ineffective assistance, especially where the failure deprives the defendant of his or her theory of the defense.[123]  Allowing the defendant to admit the elements of the offense, but then failing to request an entrapment instruction, deprives the defendant of the right to present a defense, when supported by the evidence, so as to amount to ineffective assistance.[124]

 

            Counsel also may render ineffective assistance by failing to recommend whether to accept a plea offer.  While there is no per se rule that effective counsel must recommend whether or not to accept a plea offer,[125] counsel should make an independent examination of the case and offer an informed opinion as to what plea should be entered.[126]  

 

[119] See Henderson v. Morgan, 426 U.S. 637, 647 (1976); McCarthy v. United States, supra, at 466.

[120] Evans v. Meyer, 742 F.2d 371 (7th Cir. 1984); Sober v. Crist, 644 F.2d 807, 809 n.3 (9th Cir. 1981); see Hill v. Lockhart, 474 U.S. 52, 59 (1985) (prejudice is shown where the defense would likely have succeeded at trial).

[121] Hill v. Lockhart, 474 U.S. 52, 59 (1985); Evans v. Meyer, 742 F.2d 371, 375 (7th Cir. 1984).

[122] Wilcox v. McGee, 241 F.3d 1242 (9th Cir. 2001).

[123] United States v. Span, 75 F.3d 1383 (9th Cir. 1996).

[124] Capps v. Sullivan, 921 F.2d 260 (10th Cir. 1990).

[125] Purdy v. United States, 208 F.3d 41 (2d Cir. 2000).

[126] Von Moltke v. Gillies, 332 U.S. 708, 721 (1948); see also Boria v. Keane, 99 F.3d 492 (2d Cir. 1996) (conviction vacated for failure to express opinion defendant should accept offer, citing 1992 Model Code of Prof’l Responsibility, EC 7-7, requiring counsel to “advise [the] client fully on whether a particular plea to a charge appears to be desirable”).

Ninth Circuit

POST CON RELIEF -GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - ENSURING DEFENDANT UNDERSTANDS LAW IN RELATION TO FACTS
Smith v. Mahoney, 596 F.3d 1133 (9th Cir. Mar. 5, 2010) ("In addition to a duty to investigate, defense counsel must ensure that the defendant understands his plea. A defendant must possess "an understanding of the law in relation to the facts." Boykin v. Alabama, 395 U.S. 238, 243 n. 5, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). A guilty plea is only valid if it "represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).").

POST CON RELIEF - GROUNDS - MISTAKEN LEGAL ADVICE ON SUPPRESSIBILITY OF EVIDENCE
United States v. McTiernan, 546 F.3d 1160 (9th Cir. Oct. 21, 2008) (conviction reversed, and remanded with instructions to allow defendant to pursue motion to withdraw plea for fair and just reason that he had not been informed of his right to seek suppression, pursuant to 18 U.S.C. 2511 and 2515, of an incriminating recording seized by the government).