Where Ineffective Assistance of Counsel Results in Rejection of a Plea Bargain, Followed by Trial, Prejudice is Shown by Establishing that The Plea Would Have Been Entered and the Conviction or the Sentence Would Have Been More Lenient

By Norton Tooby

The Supreme Court established a prejudice standard where ineffective assistance of counsel during plea bargaining results in rejection of a plea offer, followed by a jury trial, conviction, and sentence over three times longer. In Lafler v. Cooper, 132 S.Ct. 1376 (Mar. 21, 2012), the defendant received ineffective assistance of counsel during plea bargaining, where he rejected a plea offer of a 51-to-85-month sentence, because his attorney misadvised him that the prosecution would be unable to establish intent to murder at trial because the victim had been shot below the waist. He therefore went to trial, was convicted on all counts, and received a mandatory minimum 185-to-360-month sentence. The Government conceded counsels advice with respect to the plea offer fell below the standard of adequate assistance of counsel guaranteed by the Sixth Amendment, applicable to the States through the Fourteenth Amendment. (Id. at 1383.) The courts decision, therefore, focused on how to apply Stricklands prejudice test where ineffective assistance results in a rejection of the plea offer and the defendant is convicted at the ensuing trial. (Id. at 1384.)

Prejudice Standard

To establish Strickland prejudice in the context of a plea bargaining error, the defendant must show that there is a reasonable probability that, but for counsels unprofessional errors, the outcome of the plea process would have been different with competent advice. (Id. at 1384.)

This standard is different in different contexts. [W]hen evaluating the petitioners claim that ineffective assistance led to the improvident acceptance of a guilty plea, the Court required the petitioner to show that there is a reasonable probability that, but for counsels errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial. (Id. at 1384-85, quoting Hill v. Lockhart, 474 U. S. 52, 59 (1985).

In the present case, the claim of error was the reverse, leading to the following formulation of prejudice:

In contrast to Hill, here the ineffective advice led not to an offers acceptance but to its rejection. Having to stand trial, not choosing to waive it, is the prejudice alleged. In these circumstances a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offers terms would have been less severe than under the judgment and sentence that in fact were imposed.

(Id. at 1385.)

In rejecting the government argument that the right to effective counsel protects only the right to a fair trial, the court stated:

The Sixth Amendment, however, is not so narrow in its reach. Cf. Frye, ante, at 11 (holding that a defendant can show prejudice under Strickland even absent a showing that the deficient performance precluded him from going to trial). The Sixth Amendment requires effective assistance of counsel at critical stages of a criminal proceeding. Its protections are not designed simply to protect the trial, even though counsels absence [in these stages] may derogate from the accuseds right to a fair trial. [Citation omitted.] The constitutional guarantee applies to pretrial critical stages that are part of the whole course of a criminal proceeding, a proceeding in which defendants cannot be presumed to make critical decisions without counsels advice. This is consistent, too, with the rule that defendants have a right to effective assistance of counsel on appeal, even though that cannot in any way be characterized as part of the trial. [Citations omitted.] The precedents also establish that there exists a right to counsel during sentencing . . . . Even though sentencing does not concern the defendants guilt or innocence, ineffective assistance of counsel during a sentencing hearing can result in Strickland prejudice because any amount of [additional] jail time has Sixth Amendment significance. Glover, supra, at 203.

(Id. at 1385-86.) The Court, moreover, has not followed a rigid rule that an otherwise fair trial remedies errors not occurring at the trial itself. It has inquired instead whether the trial cured the particular error at issue. (Id. at 1386.)

The courts reasoning was very forceful, in rejecting the claim that a fair trial automatically cures plea bargaining error:

In the instant case respondent went to trial rather than accept a plea deal, and it is conceded this was the result of ineffective assistance during the plea negotiation process. Respondent received a more severe sentence at trial, one 3 times more severe than he likely would have received by pleading guilty. Far from curing the error, the trial caused the injury from the error. Even if the trial itself is free from constitutional flaw, the defendant who goes to trial instead of taking a more favorable plea may be prejudiced from either a conviction on more serious counts or the imposition of a more severe sentence.

(Id. at 1386.)

The court stated the prejudice standard where an error led to the rejection of a plea offer as follows:

If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it. If that right is denied, prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more severe sentence.

(Id. at 1387.)

The court recognized the realities of the criminal justice system, instead of sterile doctrine:

[C]riminal justice today is for the most part a system of pleas, not a system of trials. Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. [Citation omitted.] As explained in Frye, the right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining plays in securing convictions and determining sentences.

(Id. at 1388.)

The Remedy

The court then addressed the general question of the appropriate remedy where ineffective assistance of counsel has caused the rejection of a plea leading to a trial and a more severe sentence[:]

Sixth Amendment remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests. United States v. Morrison, 449 U. S. 361, 364 (1981). Thus, a remedy must neutralize the taint of a constitutional violation, id., at 365, while at the same time not grant a windfall to the defendant or needlessly squander the considerable resources the State properly invested in the criminal prosecution. See Mechanik, 475 U. S., at 72 (The reversal of a conviction entails substantial social costs: it forces jurors, witnesses, courts, the prosecution, and the defendants to expend further time, energy, and other resources to repeat a trial that has already once taken place; victims may be asked to relive their disturbing experiences).

(Id. at 1388-89.) The court looked more specifically at prejudice from erroneously rejecting a plea bargain, and receiving a longer sentence:

The specific injury suffered by defendants who decline a plea offer as a result of ineffective assistance of counsel and then receive a greater sentence as a result of trial can come in at least one of two forms. In some cases, the sole advantage a defendant would have received under the plea is a lesser sentence. This is typically the case when the charges that would have been admitted as part of the plea bargain are the same as the charges the defendant was convicted of after trial. In this situation the court may conduct an evidentiary hearing to determine whether the defendant has shown a reasonable probability that but for counsels errors he would have accepted the plea. If the showing is made, the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.

In some situations it may be that resentencing alone will not be full redress for the constitutional injury. If, for example, an offer was for a guilty plea to a count or counts less serious than the ones for which a defendant was convicted after trial, or if a mandatory sentence confines a judges sentencing discretion after trial, a resentencing based on the conviction at trial may not suffice. See, e.g., Williams, 571 F. 3d, at 1088; Riggs v. Fairman, 399 F. 3d 1179, 1181 (CA9 2005). In these circumstances, the proper exercise of discretion to remedy the constitutional injury may be to require the prosecution to reoffer the plea proposal. Once this has occurred, the judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.

(Id. at 1389.) Giving the court discretion to impose a sentence greater than the sentence dictated by the erroneously lost plea bargain seems to undercut the goal of placing the defendant in the position he or she would have occupied absent the error, and it is not apparent how granting this discretion avoids unnecessarily infringing on competing interests.

The court went on to describe two factors that may inform the courts exercise of discretion to fashion an appropriate remedy:

First, a court may take account of a defendants earlier expressed willingness, or unwillingness, to accept responsibility for his or her actions. Second, it is not necessary here to decide as a constitutional rule that a judge is required to prescind (that is to say disregard) any information concerning the crime that was discovered after the plea offer was made. The time continuum makes it difficult to restore the defendant and the prosecution to the precise positions they occupied prior to the rejection of the plea offer, but that baseline can be consulted in finding a remedy that does not require the prosecution to incur the expense of conducting a new trial.

(Id. at 1381-82.)

The court rejected floodgates arguments, pointing out that the government has cried Wolf before, but no wolf materialized. (Id. at 1389-90.) But this floodgates discussion clearly implies the courts view that this decision should apply retroactively, similarly to Padilla.

In the present case, all parties conceded counsel rendered deficient performance, and the defendant established that but for counsels deficient performance there is a reasonable probability he and the trial court would have accepted the guilty plea. The standard for ineffective assistance under Strickland has thus been satisfied. (Id. at 1391.) The court prescribed the following remedy:

As a remedy, the District Court ordered specific performance of the original plea agreement. The correct remedy in these circumstances, however, is to order the State to reoffer the plea agreement. Presuming respondent accepts the offer, the state trial court can then exercise its discretion in determining whether to vacate the convictions and resentence respondent pursuant to the plea agreement, to vacate only some of the convictions and resentence respondent accordingly, or to leave the convictions and sentence from trial undisturbed. See Mich. Ct. Rule 6.302(C)(3) (2011) (If there is a plea agreement and its terms provide for the defendants plea to be made in exchange for a specific sentence disposition or a prosecutorial sentence recommendation, the court may . . . reject the agreement). Todays decision leaves open to the trial court how best to exercise that discretion in all the circumstances of the case.

(Id. at 1391.)

The courts thinking on the prejudice standard is excellent, but the remedy adopted"throwing everything open to the discretion of the court, instead of placing the defendant in the same position he or she would have occupied absent the error, may often be inadequate to remedy the constitutional violation.