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Counsel – Effective Assistance – Plea Bargaining – Prejudice: After Trial

Lafler v. Anthony Cooper, USSC No. 10-209, 3/21/12, vacating and remanding, 376 Fed. Appx. 563 (6th Cir. 2010); prior post; companion case: Missouri v. Frye, 10-444

Cooper turned down a favorable plea bargain and instead went to trial, after his attorney erroneously told him the prosecution would be unable to establish intent to kill because the victim had been shot below the waist. (Don’t ask. Just take as given counsel’s deficient performance.) With both parties agreeing that the advice to reject the plea bargain was “deficient,” the Court deems it unnecessary to explore that aspect of the case and focuses on prejudice.

The question for this Court is how to apply Strickland’s prejudice test where ineffective assistance results in a rejection of the plea offer and the defendant is convicted at the ensuing trial.

In contrast to Hill, here the ineffective advice led not to an offer’s 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been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed. …

This case should be read in conjunction with its companion, Frye. In both, a favorable resolution was turned down on account of poor advice. But unlike Frye, Cooper went to trial: does that make a difference in the outcome; more particularly, does an error-free trial wipe clean the deficient-performance slate? No:

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 3½ 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.

… [H]ere the question is not the fairness or reliability of the trial but the fairness and regularity of the processes that preceded it, which caused the defendant to lose benefits he would have received in the ordinary course but for coun­sel’s ineffective assistance.

As indicated in the On Point Frye post, this particular issue – whether an otherwise fair trial somehow trumps attorney errors in the pretrial plea bargaining phase – has long been resolved in Wisconsin. State v. Ludwig, 124 Wis. 2d 600, 369 N.W.2d 722 (1985). In that respect, Cooper won’t alter Wisconsin’s approach to the problem. But the remedy may be something else. Ludwig doesn’t itself address the remediation of improper plea-bargain advice in any detail, but instead mandated a new trial without further explication, 124 Wis.2d at 612. What Ludwig made implicit, the court of appeals made explicit, in State v. Fritz, 212 Wis. 2d 284, 298-99, 569 N.W.2d 48 (Ct. App. 1997), which is to say, the court would not require reinstatement of the rejected plea offer. See also, Julian v. Bartley, 495 F.3d 487, 500 (7th Cir.2007) (“We do not think that requiring specific performance of the plea agreement is the appropriate remedy here. In this case, the State had no hand in denying Julian his Sixth Amendment right to effective assistance of counsel, and Julian never actually accepted the terms of the original plea offer.” The court does, however, suggest that it possesses broad authority to order specific performance given the right set of facts.). With that background in mind, the remedy devised by the Court represents an important wrinkle, and thus merits the following lengthy recitation:

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 counsel’s 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 judge’s 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.

In implementing a remedy in both of these situations, the trial court must weigh various factors; and the boundaries of proper discretion need not be defined here. Principles elaborated over time in decisions of state and federal courts, and in statutes and rules, will serve to give more complete guidance as to the factors that should bear upon the exercise of the judge’s discretion. At this point, how­ever, it suffices to note two considerations that are of relevance.

First, a court may take account of a defendant’s 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.

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 defendant’s plea to be made in ex­ change for a specific sentence disposition or a prosecutorial sentence recommendation, the court may . . . reject the agreement”). Today’s decision leaves open to the trial court how best to exercise that discretion in all the circumstances of the case.

Looking for a concise statement of the larger principle? It might be this (slip op., p. 9): “If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it.” On the one hand, that principle is certainly non-controversial, at least under established Wisconsin caselaw. On the other, it is certainly useful to have it expressed openly by the Court, especially if you need to seek 2254 habeas relief.

UPDATE. Right to effective assistance of counsel in plea bargaining process held to have been “squarely established” well before Lafler: Miles v. Martel, 9th Cir No. 10-15633, 9/28/12 (“Counsel’s explanation of a plea offer must be sufficient to permit the defendant to make a reasonably informed decision to accept or reject the offer.”) Thus, counsel’s failure to warn defendant that turning down “plea bargain of six years” would have been (if true) “not only erroneous but egregious,” where rejection left him exposed to life sentence.

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