Any experienced criminal defense lawyer should know that he or she has a duty to communicate plea offers to their client. But did you know that failing to communicate a plea offer might subject you to a claim of ineffective assistance of counsel? The United States Supreme Court recently addressed this issue in Missouri v. Frye, No. 10-444. In Frye, the defendant entered a plea of guilty to the charge of driving with a revoked license. After being sentenced, he filed a motion for postconviction relief based on his attorney’s failure to communicate a plea offer which had lapsed prior to his entering the plea. Predictably, Frye testified at an evidentiary hearing that he would have entered a guilty plea to the misdemeanor had he known about the offer. In its Opinion, the Court focused on the factual “context of claimed ineffective assistance that led to the lapse of a prosecution offer of a plea bargain, a proposal that offered terms more lenient than the terms of the guilty plea entered later.” Slip Op. at pg. 1. The Court therefore framed the issue as “whether the constitutional right to counsel extends to the negotiation and consideration of plea offers that lapse or are rejected.” Slip Op. at pg. 1.
In holding that the right to counsel extends to such plea offers, the Court reasoned that today’s criminal justice system has become dominated by the plea-bargaining process. As noted by the Court, because today’s system is based on pleas, as opposed to trials, “the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant” for purposes of the Sixth Amendment’s right to effective assistance of counsel. Slip op. at pg. 8. Next, the Court held that “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.” Slip op. at pg. 9. Because counsel failed to communicate the formal offer to Frye, the Court held that counsel had performed deficiently under Strickland v. Washington, 466 U. S. 668, 686 (1984).
Turning to the prejudice prong of Strickland, the Court then stated that defendants must show (1) a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel; and, (2) 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. The Court further noted that to establish prejudice, a defendant would have 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. Slip op., pg. 12.
As I was reading the rather dry majority opinion, something was not sitting right with me. I wondered: how can the Court reconcile its decision (that counsel can be deemed ineffective for failing to communicate a plea offer) with the fact that a defendant has no right to be offered a plea in the first place, or a federal right to have the trial court accept a plea? After all, the majority opinion acknowledged such fact at pages 5 and 12 of the slip opinion (citing Weatherford v. Bursey, 429 U. S. 545, 561 (1977); and Santobello v. New York, 404 U. S. 257, 262 (1971)).
Then, reading the opening paragraph of Justice Scalia’s dissent, I had one of those “aha!” moments. Scalia wrote, “Counsel’s mistake did not deprive Frye of any substantive or procedural right; only of the opportunity to accept a plea bargain to which he had no entitlement in the first place.” Scalia Dissent, Slip. Op. at pgs. 1-2. Scalia further noted that the majority acknowledged that the plea that Frye ultimately accepted was not tainted by any attorney error. Scalia Dissent, Slip Op. at pg. 2.
Against those two points, Scalia presents a logical argument: that the majority opinion certainly seems to be out of sync with previous jurisprudence in this area. The remainder of Justice Scalia’s dissent contains a good discussion of the difficulties that the Court’s majority opinion has left the lower courts, and criminal defense lawyers, to deal with. I highly suggest that anyone who practices in this area to take a few moments to read the opinion.
In my next post, I’ll discuss Lafler v. Cooper, No. 10-209, another opinion released on the same day as Frye, which addresses other questions relating to ineffective assistance with respect to plea offers, including remedies.
