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Missouri v. Galin E. Frye, USSC No. 10-444, 3/21/12

United States Supreme Court decision, vacating and remanding, 311 S.W.2d 350 (Mo. App. W.D. 2010); prior post; companion case: Lafler v. Cooper, 10-209

Counsel – Effective Assistance – Plea Bargaining 

Counsel’s failure to communicate to Frye a favorable plea bargain offer from the prosecutor was deficient performance under 6th amendment analysis of effective assistance of counsel. Frye’s entry of a guilty plea that was itself error-free doesn’t pretermit inquiry into prejudice from this deficient performance.

Generally: plea bargaining as a “critical stage.”

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 (2009) (quoting United States v. Wade, 388 U. S. 218, 227–228 (1967)). Critical stages include arraignments, postindictment interrogations, postindictment lineups, and the entry of a guilty plea. See Hamilton v. Alabama, 368 U. S. 52 (1961) (arraignment); Massiah v. United States, 377 U. S. 201 (1964) (postindictment interrogation); Wade, supra (postindictment lineup); Argersinger v. Hamlin, 407 U. S. 25 (1972) (guilty plea).

With respect to the right to effective counsel in plea negotiations, a proper beginning point is to discuss two cases from this Court considering the role of counsel in advising a client about a plea offer and an ensuing guilty plea: Hill v. Lockhart, 474 U. S. 52 (1985); and Padilla v. Kentucky, 559 U. S. ___(2010)

Hill says that a defendant challenging a guilty plea premised on counsel’s misadvice must show, as an incident of prejudice, a reasonable probability with proper advice he would have maintained the not guilty plea and gone to trial. As for Padilla (counsel’s misadvice as to immigration consequences supported challenge to plea), the Court importantly reaffirms that a knowing and intelligent plea does not supercede counsel’s errors. The present context, the Court concedes, is somewhat different here: “In those cases the claim was that the prisoner’s plea of guilty was invalid because counsel had provided incorrect advice pertinent to the plea. In the instant case, by contrast, the guilty plea that was accepted, and the plea proceedings concerning it in court, were all based on accurate advice and information from counsel.” This distinction, however, turns out to be a mere detail: “The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages.”

To note the prevalence of plea bargaining is not to criticize it. The potential to conserve valuable prosecutorial resources and for defendants to admit their crimes and receive more favorable terms at sentencing means that a plea agreement can benefit both parties. In order that these benefits can be realized, however, criminal defendants require effective counsel during plea negotiations. “Anything less . . . might deny a defendant ‘effective representation by counsel at the only stage when legal aid and advice would help him.’” Massiah, 377 U. S., at 204 (quoting Spano v. New York, 360 U. S. 315, 326 (1959) (Douglas, J., concurring)).

Having established the right to effective assistance during the plea-bargaining phase, the Court turns to the familiar deficient performance-prejudice construct.

Deficient performance. The Court does not undertake the fraught task of defining “the duty and responsibilities of defense counsel in the plea bargain process.” Instead, only a narrow question is raised, and it is one readily resolved:

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.

Here defense counsel did not communicate the formal offers to the defendant. As a result of that deficient performance, the offers lapsed. Under Strickland, the question then becomes what, if any, prejudice resulted from the breach of duty.

We pause briefly here to note that this issue has itself been long-resolved under Wisconsin caselaw, at least by implication, State v. Ludwig, 124 Wis. 2d 600, 369 N.W.2d 722 (1985) (ineffective assistance where counsel informed Ludwig of plea offer but failed to let her know that decision whether to accept  it was hers, rather than counsel’s).

The Court goes on to cite favorably ABA Standards relating to prompt communication and explanation of plea offers, and suggests the possibility of local regulations (such as requiring written plea offers). But, as noted, the Court treads very lightly. The duty to communicate an offer is non-controversial; will this new recognition encourage future battles fought over just how well counsel conveyed the offer? We’ll see, of course, but not if the Wisconsin experience is any guide. That is, few challenges to plea bargaining representation have been mounted in the decades following Ludwig. To stress this point, there is simply no doubt at all about the principle established by that case, e.g., State v. Kurtz, 2008AP2954, 8/19/09, unpublished slip op., ¶18, citing Ludwig: “Defense counsel has an obligation to present the State’s offers to the client and to recommend what counsel believes is in the client’s best interest.” And for something of an outlier, no doubt its extreme facts having something to do with that, see, State v. Fritz, 212 Wis. 2d 284, 293, 569 N.W.2d 48 (Ct. App. 1997) (counsel’s advice to reject plea offer and instead go to trial on perjured testimony held to establish ineffective assistance; court recognizing overarching principle as, “The effective-assistance-of-counsel right applies to advice as to whether a defendant should accept or reject a plea bargain”).


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 (2001) (“[A]ny amount of [additional] jail time has Sixth Amendment significance”).

… 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.

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. … So in most instances it should not be difficult to make an objective assessment as to whether or not a particular fact or intervening circumstance would suffice, in the normal course, to cause prosecutorial withdrawal or judicial nonapproval of a plea bargain. The determination that there is or is not a reasonable probability that the outcome of the proceeding would have been different absent counsel’s errors can be conducted within that framework.

The lower court granted relief, but didn’t apply the test just articulated, so the Court remands for that purpose. (Frye has an impossibly steep Hill to climb, because while his case was pending below, he picked up a new offense and, as the Court very delicately puts it, “there is reason to doubt that the prosecution would have adhered to the agreement or that the trial court would have accepted it.”)

The test for prejudice appears to be consistent with Wisconsin caselaw. Ludwig, 124 Wis. 2d at 611-12 (prejudice based on reasonable probability Ludwig would have accepted offer instead of going to trial); Fritz, 212 Wis. 2d at 296-98.

Companion case, Lafler v. Cooper (fair trial doesn’t cure prejudice from ineffective advice to reject plea bargain), also released today. Separate post to follow as soon as possible. (It is now posted, here.)

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