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Court of appeals applies new “prejudice” test to claim for ineffective assistance during plea bargaining

State v. Gitan Mbugua, 2017AP967, District 1, 6/12/18 (not recommended for publication); case activity (including briefs)

This appeal concerns ineffective assistance of counsel in connection with 2 plea offers. Mbugua claimed that his 1st lawyer provided him incorrect information about option 2 of “plea offer 1” and this caused him to reject “plea offer 1” altogether. He also claims that during a second round of plea bargaining, option 2 of “plea offer 1” remained on the table, and his second lawyer incorrectly advised him to reject it in favor of an entirely new plea offer (we’ll call it “plea offer 2”), which proved to be bad deal. The court of appeals denied both claims for lack of prejudice based upon Lafler v. Cooper, 566 U.S. 156 (2012). A quick Westlaw search suggests that this is the first Wisconsin case to apply Lafler (and it’s unpublished).

In Lafler, an attorney’s deficient advice caused a defendant to reject a plea bargain and go to trial. The question was what remedy, if any, the defendant should get given that he was convicted and sentenced pursuant to constitutionally adequate procedures. In a 5-4 decision, SCOTUS held that in this situation, Strickland‘s prejudice test requires defendant to prove: (1) but for the ineffective assistance, he would have accepted the plea offer; (2) the plea would have been entered without the prosecution cancelling it and the court rejecting it, and (3) the conviction, sentence or both under the terms of the offer would have been less severe than the judgment and sentence in fact imposed. Lafler, at 164.

Turning to the first plea offer in this case, the court of appeals, among other things, held that Mbugua failed to prove that, if his lawyer had advised him properly, he would have accepted option 2 of “plea offer 1.” Opinion ¶20. He also failed to prove, as required by Lafler, that his conviction, sentence, or both would have been less severe under option 2 of “plea offer 1” than they actually were. Opinion ¶22.

Regarding the second plea offer, the court of appeals held that Mbugua failed to prove, as required by Lafler, that the State would not have withdrawn its offer while the first lawyer was representing him or that the State would have renewed that offer when second lawyer was representing him. Plus he didn’t show that the trial court would have accepted the plea. Opinion. ¶28.

Mbugua claimed that both his first and second lawyers were ineffective, so he had to prove that he was prejudiced by both.  But does Lafler actually apply to this case?  In Lafler, rejection of the plea offer led to a constitutionally adequate trial and sentencing. In Mbugua’s case, the rejection of “plea offer 1” led to constitutionally deficient advice to accept “plea offer 2,” not a trial. That does not match Lafler.

Furthermore, the second lawyer’s advice caused Mbugua to accept a bad deal a.k.a. “plea offer 2.” Isn’t that more of a Hill v. Lockhart, 474 U.S. 52 (1985) scenario not a Lafler scenario? Hill holds that when counsel’s bad advice causes a defendant to accept a plea offer, then the defendant must prove that but for his lawyer’s unprofessional error he would not have pleaded guilty and would have insisted on going to trial. The court of appeals decision does not mention Hill. It applies Lafler to both claims. Without burrowing into the case, it is hard to say whether the mismatch makes a difference for Mbugua, but it could make a difference for other defendants. For more on Lafler and its companion, Missouri v. Frye, case see SCOTUSblog’s opinion analysis here.

For more on how Lafler and Frye intersect with Wisconsin law, see On Point’s prior posts here and here. And for more on proving prejudice when ineffective assistance occurs during plea bargaining, click here (also available on Westlaw) and here.

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