Decision below (311 S.W.3d 350, Mo. Ct. App)
Contrary to the holding in Hill v. Lockhart, 474 U.S. 52 (1985)–which held that a defendant must allege that, but for counsel’s error, the defendant would have gone to trial–can a defendant who validly pleads guilty successfully assert a claim of ineffective assistance of counsel by alleging instead that, but for counsel’s error in failing to communicate a plea offer, he would have pleaded guilty with more favorable terms?
IN ADDITION TO THE QUESTIONS PRESENTED BY THE PETITIONS THE PARTIES ARE DIRECTED TO BRIEF AND ARGUE THE FOLLOWING QUESTION :
“WHAT REMEDY, IF ANY, SHOULD BE PROVIDED FOR INEFFECTIVE ASSISTANCE OF COUNSEL DURING PLEA BARGAIN NEGOTIATIONS IF THE DEFENDANT WAS LATER CONVICTED AND SENTENCED PURSUANT TO CONSTITUTIONALLY ADEQUATE PROCEDURES?”
Companion case: Lafler v. Cooper, raising question of whether error-free trial negates any possible prejudice from counsel’s botched plea negotiations. Cooper is on habeas review, Frye on appeal from a state court decision–the distinction may turn out to be noteworthy: Cooper could lose on the theory that the Supreme Court hasn’t established clear authority in this area, a lacuna that strips a federal court from granting 2254 habeas relief; Frye needn’t be concerned about that. But the cases are distinct in another, perhaps more important way. The nub of Frye’s case: he was charged with a felony; the State offered alternative plea terms, one of which would reduce the charge to a misdemeanor, but Frye’s attorney failed to convey the offer to him; ultimately, he pleaded to a felony. The state appellate court granted relief. Deficient performance is obvious–failure to convey a plea offer necessarily falls outside normative standards. Prejudice is a bit trickier (what if the State is no longer minded to offer a reduction), made more so because, according to the cert petition, Frye failed to allege or prove that, but for counsel’s deficiency, he would have accepted the plea bargain. Hill v. Lockhart says that such a showing must be made when you’re challenging a guilty plea on the basis of ineffective assistance: but for counsel’s misstep, you wouldn’t have pleaded guilty but would instead have insisted on a trial.
So, there are procedural issues that may doom the litigant in one or the other case. But they are joined in a profound way, one that may doom all litigation in this area. In essence, Frye and Cooper form bookends. It is entirely possible that when the dust settles, little if any scrutiny will remain over the effective assistance counsel in the plea bargaining process. Missouri’s cert petition puts it this way:
In Lafler v. Cooper, the issue is whether trial counsel’s deficient advice to reject a plea agreement can result in any “prejudice” (as that term is used in Strickland) if the defendant is later given a fair trial. Here, the issue is similar: whether trial counsel’s failing to communicate a plea offer can result in any “prejudice” if the defendant later enters a knowing, intelligent, and voluntary guilty plea.
Indeed, the Court has instructed the parties in both cases to address the separate question related to remedy following conviction and sentence under “constitutionally adequate procedure.” No distinction made, between trial or plea. Either way, the trial supersedes the deficient performance, or the plea proceeding does. Either way, the deficiency goes down the memory hole.