Volume 10, Issue 4 - May 2012

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Missouri v. Frye, 132 S.Ct. 1399 (2012)*

The Sixth Amendment’s guarantee of “assistance of counsel” for the defense of an accused has long been held to mean that a criminal defendant has a right to the effective assistance of counsel.  The Supreme Court has interpreted this right as extending to all “critical” stages of a criminal proceeding.  In Missouri v. Frye, the Court examined the issue of whether the Sixth Amendment’s guarantee of effective assistance of counsel encompasses the negotiation and consideration of plea offers.

In Frye, the defendant was accused of driving with a revoked license—an offense for which Frye had been convicted three times before.  The prosecution extended two alternative plea recommendations.  First, the prosecution proposed a three-year sentence with a guilty plea to a felony charge including no probation recommendation and a suggestion that Frye serve ten days “shock time” in jail.  Alternatively, the prosecution suggested the reduction of Frye’s charges to a misdemeanor and a ninety-day jail sentence if Frye agreed to plead guilty. Each recommendation was formal and included an expiration date.  Defense counsel allowed both offers to lapse without communicating either of the prosecution’s proposed plea recommendations to Frye. Subsequently, he was sentenced to three years in jail. 

After learning of the lapsed plea offers, Frye applied for relief after the court entered his conviction, alleging ineffective assistance of counsel.  He argued that had he known of the offered plea recommendations, he would have pleaded guilty to the misdemeanor.  Although the trial court denied the post-conviction relief, the Missouri court of appeals concluded that defense counsel rendered sub-par performance and that this sub-par performance resulted in prejudice to Frye because he pled guilty to a felony rather than a misdemeanor.  Thus, the court concluded that Frye had shown a violation of the Sixth Amendment under the test set forth in Strickland v. Washington, 466 U.S. 668, 686 (1984).

The Supreme Court agreed.  In holding that the Sixth Amendment’s guarantee of effective assistance of counsel extends to the consideration and negotiation of pleas, the Court recognized the prevalence of plea bargaining within the criminal justice system.  Noting that 95% of criminal convictions are based upon guilty pleas, the Court determined that “it is insufficient simply to point to the guarantee of a fair trial as a backdrop that inoculates any errors in the pretrial process.”  Thus, the Court acknowledged that failing to recognize the constitutional guarantee of effective assistance of counsel to the plea bargaining stage would deny the accused the right to guidance “‘at the only stage when legal aid and advice would help him.’”

The Court outlined the steps a defendant must take to show that a violation of a defendant’s Sixth Amendment right to effective assistance of counsel has been violated at the plea bargaining stage.  Under the test set forth in Strickland, the accused must prove (1) that counsel’s assistance had been deficient, and (2) that, as a result of the deficient assistance, the defendant was prejudiced. 

In cases alleging ineffective assistance in the plea bargaining stage, the Court held that defense counsel has an obligation to communicate plea offers to the accused and to advise the accused as to the favorability of the recommendation. Thus, if the attorney for the accused fails to communicate a plea recommendation to the accused and “allow[s] 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.”  As a result, if a plea recommendation lapses and defense counsel fails to communicate the offer to his client, his conduct is “deficient” under the first prong of the Strickland test.

Next, the defendant must show prejudice resulting from the ineffective assistance of counsel.  In order to demonstrate this, the defendant must show that there is a “reasonable probability” that they would have accepted the plea recommendation.  The defendant must also show a reasonable probability that the plea would have been accepted by the court and not withdrawn by the prosecution.  In essence, where counsel fails to communicate a plea recommendation, the defendant must prove that he would have accepted the plea and not gone to trial, or that the later plea accepted was less favorable than the plea initially offered. 

The State argued that guaranteeing the right to effective assistance of counsel at the plea bargaining stage effectively would open the door to frivolous claims of ineffective assistance in situations involving a rejected plea and a later, less-favorable outcome.  However, the Court rejected this argument, pointing out that steps can be taken by courts and prosecutors to guard against frivolous claims.

Four dissenting Justices argued that Frye could not have been prejudiced by defense counsel’s failure to communicate the prosecution’s plea recommendation because no one is entitled to a plea bargain.  Thus, they argue that Frye would necessarily fail the second part of the test set forth in Strickland.  Therefore, the defendant’s Sixth Amendment right could not have been violated by his defense counsel’s inadequacies in failing to communicate the plea offer.

Furthermore, the dissenting judges argued that the test that the majority set forth is impracticable.  They contended that it is impossible to tell whether a court would accept or the prosecution would withdraw a plea recommendation.  Thus, they assert that not only is failure to communicate a plea deal not a violation of a defendant’s Sixth Amendment rights to effective assistance of counsel under Strickland but also that the test to determine whether a defendant has been prejudiced is unworkable in practice.

* The decision can also be found on the website of the Supreme Court of the United States (http://www.supremecourt.gov/opinions/11pdf/10-444.pdf).

** Case summary by Shea Gordon, Moritz class of 2013.

Posted in: Volume 10, Issue 4

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