A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

Click for Missouri v. Frye

Click for Lafler v. Cooper

The Supreme Court of United States has decided two cases involving the issue of ineffective assistance of counsel and guilty plea offers. The cases are Missouri versus Frye, 2012 WL 932020, and Lafler versus Cooper, 2012 WL 932019, both decided on March 21, 2012. Both cases were decided by a vote of 5 to 4 with Justice Kennedy casting the deciding vote and writing both opinions.

In the Frye case, the defendant claimed that ineffective assistance of counsel caused him to reject a guilty plea offer and that further proceedings led to a less favorable outcome. In that case, defense counsel did not inform the client of the guilty plea offer, which lapsed. The defendant pleaded guilty on more severe terms than were in the plea offer.

In the Lafler case, a favorable plea offer was reported to the client but, on advice of counsel, was rejected. Thereafter, there was “a full and fair trial” before a jury. At sentencing , the defendant received a sentence harsher than that offered in the rejected plea bargain. Both sides agreed in this appeal as to the fact of deficient performance by counsel. There was a reasonable probability that the defendant and the trial court would have accepted the guilty plea. As a result of not accepting the offer, the defendant received a sentence 3 1/2 times greater than he would have received under the plea offer.

The remedy for this instance of ineffective assistance of counsel is to order the prosecution to reoffer the plea agreement. However even if the defendant accepts that offer the trial judge reserves the discretion to reject it.

As Justice Kennedy stated in the Frye case, where a plea-bargain has been offered, the defendant has a right to effective assistance of counsel in considering whether to accept or reject it. If the resulting trial winds up with the defendant receiving a more severe sentence than that which was available under the plea-bargain, the defendant has shown prejudice under the Strickland test

Justice Scalia is not happy.

More from Burt Rose

Perhaps these excerpts from the Missouri v Frye decision will be of help:

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.

Frye argues that with effective assistance he would have accepted an earlier plea offer (limiting his sentence to one year in prison) as opposed to entering an open plea (exposing him to a maximum sentence of four years’ imprisonment). 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 cases where a defendant complains that ineffective assistance led him to accept a plea offer as opposed to proceeding to trial, the defendant will have to show a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.

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.

Taylor F. Andrews comments

I like it when defendants win, but these outcomes seem problematic.  I am concerned that the number of claims [albeit false claims] of ineffectiveness will increase dramatically, and also that the prosecutors will become much more guarded in what they will offer to resolve a case.

Taylor P. Andrews, Esq.

Andrews & Johnson
78 W. Pomfret St.
Carlisle, PA 17013
717 243-0123


Rania Major-Trunfio comments
In response to Mr. Andrews, the solution is very simple. I use a Plea Offer form that I made (I currently need to add SORNA to it) which warns the client of the impact on any immigration or custody issues by pleaing to any of the statutorily enumerated charges, when I advise the client of any offer. I usually circle the charge(s) that affect that client so they cannot say they did not read the whole form. After I write the offer on the blank line, the clients needs to initial if he/she wants to accept or reject it on a separate pre-printed line and then signs his/her name and writes the date on the bottom. If the client wants to counter the Commonwealth’s offer and will only accept something else, I have him/her write it on the form too. I keep this in my file. I will be happy to forward it along on Monday when I am at the office. In my opinion, any attorney who does not do this is leaving themself open to an ineffective claim because clients can say anything.

I did have my form in my laptop – copy is attached. Again, I have yet to add SORNA and am thinking of a separate sheet, which I will forward next week. Otherwise, this is up to date with the state of the law and all-inclusive.

Note: I carry some with me to court on a daily basis and not just during client visits since you never know when you might need one. I suggest this practice too.

Very truly yours,
Rania Major-Trunfio, Esquire
2915 North 5th Street
Philadelphia, PA 19133
(215) 291-5009
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