Ineffective assistance of counsel in plea bargains

by Chuck Herring, April 24, 2012

Missouri v. Frye, ___ S. Ct. ___, 2012 WL 932020 (U.S. 2012); Lafler v. Cooper, ___ S. Ct. ___ 2012 WL 932019 (U.S. 2012).

In two companion cases, Missouri v. Frye and Lafler v. Cooper, the United States Supreme Court addressed the ineffective-assistance-of-counsel doctrine in the context of plea bargains.

Frye was charged with driving with a revoked license. Because Frye had been convicted for that offense three times before, he was charged with a class D felony, with a four-year maximum term. The prosecutor sent Frye’s counsel a letter, offering a choice of two plea bargains.  The first was to recommend a three-year sentence if Frye pleaded guilty to the felony charge, without any recommendation regarding probation but with a recommendation that Frye serve 10 days of “shock time” in jail. The second offer was to reduce the charge to a misdemeanor and, if Frye pleaded guilty, to recommend a 90-day sentence. Frye’s counsel did not inform Frye of the offers and they expired.  Less than a week before the hearing in his case, Frye was again arrested for driving with a revoked license. Frye ultimately pleaded guilty to the original charge, with no underlying plea agreement. The prosecutor recommended a three-year sentence, made no recommendation regarding probation, and requested 10 days in jail. The trial judge sentenced Frye to three years in prison.

The Supreme Court, in a 5-4 decision, held 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…. 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.”

The Court next considered what prejudice resulted from counsel’s breach of duty, applying Strickland v. Washington, 466 U.S. 668 (1984) to instances of uncommunicated, lapsed pleas. The Court concluded that the defendant would have to show “a reasonable probability” that the defendant would have accepted the earlier plea offer, and that the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it

In Frye’s case, the Court concluded that Frye could show he would have accepted the offer because he pleaded guilty to a more serious charge, with no promise of a sentencing recommendation from the prosecutor. However, the Court noted a strong basis to doubt that the prosecution and the trial court would have permitted the plea bargain to become final because the extent of the trial court’s discretion in Missouri to reject a plea agreement was unclear. Further, with Frye’s new offense for driving without a license, the prosecution might not have adhered to the agreement or that the trial court might have rejected it, unless state law required otherwise.  The Court vacated the Missouri Court of Appeals decision and remanded for further proceedings based on the standards articulated in the opinion.

In Lafler, decided on the same day, also a 5-4 decision, the Court considered how to apply Strickland’s prejudice test when the ineffective assistance resulted in the defendant rejecting a plea offer and then being convicted at trial. The Court also addressed the proper remedy in that setting.

Lafler’s counsel told him about the plea bargain offer, but Lafler rejected the offer based on counsel’s advice.  A trial followed and Lafler received a harsher sentence than what had been offered.  The Court held that Lafler satisfied Strickland’s two-part test.  All parties conceded counsel’s deficient performance.  On the prejudice issue, the record showed that a reasonable probability existed that the respondent and the trial court would have accepted the guilty plea but for counsel’s deficient performance.

For a remedy, the Court concluded that “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…. 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.”

The Court further concluded that in implementing a remedy in both of these situations, the trial court must weigh various factors, noting that guiding principles will be elaborated over time. “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.”

For Lafler, the Court held that the state must reoffer the plea agreement. “Presuming [Lafler] 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 …. Today’s decision leaves open to the trial court how best to exercise that discretion in all the circumstances of the case.”