Prejudice For Violation of Right to Effective Assistance of Counsel in Plea Bargaining Can be Shown by Reasonable Probability That the Defendant Would Have Accepted, and the Prosecution and Court Would Have Entered, a More Favorable Plea Bargain

By Norton Tooby

The Supreme Court held that the right of effective assistance of counsel applies in all critical stages of a criminal case, including consideration of plea offers that lapse or are rejected. In Missouri v. Frye, 132 S.Ct. 1399 (Mar. 21, 2012), the court held defense counsel has a duty to inform the defendant of any formal plea offers from the prosecution that may be favorable to the accused before they expire. Justice Kennedy, in a 5-4 decision, reasoned that the constitutional right to counsel extends to the negotiation and consideration of plea offers that lapse or are rejected. The court held that to establish that prejudice resulted from counsel's deficient performance, defendants must show a reasonable probability both (1) that they would have accepted the more favorable plea offer had they been afforded effective assistance of counsel, and (2) that the plea would have been entered without the prosecution's canceling it or the trial court's refusing to accept it, if they had the authority to exercise that discretion under state law.

Deficient Performance in Plea Bargaining

The court first held that the right to effective assistance of counsel applied during the critical stage of plea negotiations:

It is well settled that the right to the effective assistance of counsel applies to certain steps before trial. The Sixth Amendment guarantees a defendant the right to have counsel present at all critical stages of the criminal proceedings. Montejo v. Louisiana, 556 U.S. 778, 786, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009) (quoting United States v. Wade, 388 U.S. 218, 227"228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)). Critical stages include arraignments, postindictment interrogations, postindictment lineups, and the entry of a guilty plea. See Hamilton v. Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961) (arraignment); Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) (postindictment interrogation); Wade, supra (postindictment lineup); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) (guilty plea).

(Id. at 1405.) The court continued:

In Padilla, the Court again discussed the duties of counsel in advising a client with respect to a plea offer that leads to a guilty plea. Padilla held that a guilty plea, based on a plea offer, should be set aside because counsel misinformed the defendant of the immigration consequences of the conviction. The Court made clear that the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel. 559 U.S., at """" (slip op., at 16).

(Id. at 1406.) Justice Kennedy pointed out that: Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. . . . In today's criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant. (Id. at 1407.)

Without describing the full scope of the duty to render effective assistance of counsel, the court had little difficulty concluding that defense counsel violated that duty by his failure to communicate the formal written offer in this case to the defendant:

This Court now holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. Any exceptions to that rule need not be explored here, for the offer was a formal one with a fixed expiration date. When defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.

(Id. at 1408.)

The court suggested states may adopt several measures to protect against late, frivolous, or fabricated claims after a later, less advantageous plea offer has been accepted or after a trial leading to conviction with resulting harsh consequences. (Id. at 1408-09.)

First, the fact of a formal offer means that its terms and its processing can be documented so that what took place in the negotiation process becomes more clear if some later inquiry turns on the conduct of earlier pretrial negotiations. Second, States may elect to follow rules that all offers must be in writing, again to ensure against later misunderstandings or fabricated charges. . . . Third, formal offers can be made part of the record at any subsequent plea proceeding or before a trial on the merits, all to ensure that a defendant has been fully advised before those further proceedings commence.

(Id. at 1409.)

Requirements to Show Prejudice

To show prejudice, the defendant must meet the following standard:

To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law. To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time. Cf. Glover v. United States, 531 U.S. 198, 203, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001) ([A]ny amount of [additional] jail time has Sixth Amendment significance).

(Id. at 1409.)

The court pointed out that the prejudice necessary to a successful claim of ineffective assistance of counsel takes different forms, depends on the nature of the error:

This application of Strickland to the instances of an uncommunicated, lapsed plea does nothing to alter the standard laid out in Hill. In cases where a defendant complains that ineffective assistance led him to accept a plea offer as opposed to proceeding to trial, the defendant will have to show a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Hill, 474 U.S., at 59. Hill was correctly decided and applies in the context in which it arose. Hill does not, however, provide the sole means for demonstrating prejudice arising from the deficient performance of counsel during plea negotiations. Unlike the defendant in Hill, Frye argues that with effective assistance he would have accepted an earlier plea offer (limiting his sentence to one year in prison) as opposed to entering an open plea (exposing him to a maximum sentence of four years' imprisonment). In a case, such as this, where a defendant pleads guilty to less favorable terms and claims that ineffective assistance of counsel caused him to miss out on a more favorable earlier plea offer, Strickland 's inquiry into whether the result of the proceeding would have been different, 466 U.S., at 694, requires looking not at whether the defendant would have proceeded to trial absent ineffective assistance but whether he would have accepted the offer to plead pursuant to the terms earlier proposed.

(Id. at 1409-10.) If counsels error caused the defendant to go to trial, prejudice can be shown by a reasonable chance the defendant would have accepted an earlier more favorable plea offer absent the error. If counsels error caused the defendant to accept a disadvantageous plea bargain, prejudice can be shown by a reasonable chance the defendant would have taken the case to trial or accepted an earlier, more favorable plea bargain, absent the error.

Finally, the court pointed out that a showing of prejudice through loss of an opportunity to accept a favorable plea bargain must include a showing of a reasonable probability that the lost plea bargain would in fact have become effective:

In order to complete a showing of Strickland prejudice, defendants who have shown a reasonable probability they would have accepted the earlier plea offer must also show that, if the prosecution had the discretion to cancel it or if the trial court had the discretion to refuse to accept it, there is a reasonable probability neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented.

(Id. at 1410.)

In applying these principles to the present case, the court found no difficulty in concluding that counsel rendered deficient performance in making no effort to communicate the favorable plea offer to the defendant before it lapsed. The court, however, found there is strong reason to doubt the prosecution and the trial court would have permitted the plea bargain to become final[,]given the defendants new arrest for a new offense. (Id. at 1411.) The court also found it likely that the defendant would have accepted the earlier, more lenient offer, because he later accepted a harsher offer:

There appears to be a reasonable probability Frye would have accepted the prosecutor's original offer of a plea bargain if the offer had been communicated to him, because he pleaded guilty to a more serious charge, with no promise of a sentencing recommendation from the prosecutor. It may be that in some cases defendants must show more than just a guilty plea to a charge or sentence harsher than the original offer. For example, revelations between plea offers about the strength of the prosecution's case may make a late decision to plead guilty insufficient to demonstrate, without further evidence, that the defendant would have pleaded guilty to an earlier, more generous plea offer if his counsel had reported it to him. Here, however, that is not the case.

(Id. at 1411.)

The Court of Appeals failed, however, to require Frye to show that the first plea offer, if accepted by Frye, would have been adhered to by the prosecution and accepted by the trial court. (Id. at 1411.) The extent to which the prosecution or court can alter a plea bargain after it has been entered is a question of state law that affects the prejudice showing, and the court remanded the matter to allow the Missouri courts to address them in the first instance. (Ibid.)

In dissent, Justice Scalia, joined by the Chief Justice and Justices Alito and Thomas, felt that Frye's conviction here was established by his own admission of guilt, received by the court after the usual colloquy that assured it was voluntary and truthful. . . . Here it can be said not only that the process was fair, but that the defendant acknowledged the correctness of his conviction. . . . Counsel's mistake did not deprive Frye of any substantive or procedural right; only of the opportunity to accept a plea bargain to which he had no entitlement in the first place. (Id. at 1412.)