Failure to Inform Defendant of Formal Plea Offer May be Ineffective Assistance of Counsel

Missouri v. Frye (SCOTUS March 21, 2012)

Background. Galin Frye was charged with driving with a revoked license. This was his third offense so it was a felony with a potential sentence for four years prison. The prosecutor sent to Frye's counsel a written plea offer. The prosecutor gave Frye a choice: if he pleaded guilty to the felony, the prosecution would recommend a three-year sentence and 10-days jail, but would not recommend probation. The other option was that the prosecutor would reduce the charge to a misdemeanor and a 90-day jail sentence. Frye's attorney did not inform him about the plea offers and the offers expired. Just before the preliminary hearing, Frye was arrested again for driving with a revoked license. He pleaded guilty without an agreement. The prosecutor recommended a 3-year sentence, made no recommendation for probation, and 10-days jail. The judge sentenced Frye to prison for three years. Frye filed for post-conviction relief alleging ineffective assistance of counsel. Frye alleged that had he known about it, he would have pleaded to the misdemeanor. After the trial court denied the motion, the Missouri Court of Appeals reversed based on ineffective assistance of counsel.

The Right to Effective Assistance of Counsel Extends to Plea Bargains. The "Sixth Amendment guarantees a defendant the right to have counsel present at all 'critical' stages of the criminal proceedings." United States v. Wade, 388 U.S. 218, 227-28 (1967). The accused must be provided with effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984); Hill v. Lockhart, 474 U.S. 52 (1985); Padilla v. Kentucky, 559 U.S. __ (2010). The SCOTUS--relying primarily on secondary sources and law review articles--extolled the centrality of plea bargaining in today's American justice system. It pointed out that 97 percent of all federal prosecutions and 94 percent of all state prosecutions result in guilty pleas without a trial. "To a large extent . . . horse trading [between the prosecutor and defense counsel] determines who goes to jail and for how long. That is what plea bargaining is. It is not some adjunct to the criminal justice system; it is the criminal justice system." Scott & Stunz, Plea Bargaining as Contract, 101 Yale L. J. 1909, 1912 (1992). Thus, according to the SCOTUS, "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." The SCOTUS clearly and affirmatively held that the accused must have effective assistance of counsel during plea negotiations.

The Constitutional Right to be Informed of a Formal Plea Offer. The SCOTUS's holding was seemingly clear: "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." So when Frye's counsel allowed the offer to expire without telling him about it, Frye's counsel did not render effective assistance of counsel.

And now the Hard Part . . . Establishing Prejudice. Having established the first prong of the Strickland v. Washington, 466 U.S. 668, 686 (1984), test, the SCOTUS moved on to address the second and more difficult area: the prejudice that must be shown by the defendant.

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.

In applying this standard to Frye's case, the SCOTUS agreed that there was no real question that had Frye knew about the offers, he would have taken it. After all, Frye pleaded guilty to a felony without any offers in place. It is reasonable to infer that had he known about the misdemeanor and 90-days jail, he would have taken it. But the SCOTUS remanded the case back to the Missouri court for Frye to show that once he had entered that plea, the prosecutor could not have cancelled it or the trial court was bound by it.

Justice Scalia's Dissent. Justice Scalia wrote that it was unwise to constitutionalize plea bargaining. He took aim at the duty articulated by the majority. It is unclear to determine just what exactly constitutes a formal offer of settlement. "What if," he wrote, " an attorney's personal style is to establish a reputation as a hard bargainer by, for example, advising clients to proceed to trial rather than accept anything but the most favorable plea offers?" Does this style violate the Sixth Amendment now? He notes that this case is fairly clear, but criticizes the majority for simply ignoring complications for a later day. "It will not do simply to announce that they will be solved in the sweet by-and-by."

Justice Scalia's real criticism here is in the second prong--the prejudice. He wrote that the standard for prejudice is a "process of retrospective crystal-ball gazing posed as legal analysis." First, we have to guess if the defendant would have taken the offer had he or she known about it. In this case, that is easy to show, but it might not always be that way in the future. Second, we have to guess whether the prosecution would have stuck with the agreement once accepted and finally, we have to "estimate whether the trial court would have approved the plea agreement." For Scalia, "it is extraordinary to make a defendant's constitutional rights depend upon a series of retrospective mind-readings as to how that discretion, in prosecutors and trial judges, would have been exercised." On a broader point, Justice Scalia wrote that it is wholly inappropriate to use the Sixth Amendment to regulate plea bargaining. Let the legislatures do it, not the courts. Chief Justice Roberts, Justice Thomas, and Justice Alito joined.