MISSOURI v. FRYE
No. 10–444
SUPREME COURT OF THE UNITED STATES
Decided March 21, 2012
566 U.S. ____ (2012)
CERTIORARI TO THE COURT OF APPEALS OF MISSOURI, WESTERN DISTRICT. Argued October 31, 2011
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
Held:
1. The
2. As a general rule, defense counsel has the duty to communicate formal prosecution offers to accept a plea on terms and conditions that may be favorable to the accused. Any exceptions to this rule need not be addressed here, for the offer was a formal one with a fixed expiration date. Standards for prompt communication and consultation recommended by the American Bar Association and adopted by numerous state and federal courts, though not determinative, serve as important guides. The prosecution and trial courts may adopt measures to help ensure against late, frivolous, or fabricated claims. First, a formal offer‘s terms and processing can be documented. Second, States may require that all offers be in writing. Third, formal offers can be made part of the record at any subsequent plea proceeding or before trial to ensure that a defendant has been fully advised before the later proceedings commence. Here, as the result of counsel‘s deficient performance, the offers lapsed. Under Strickland, the question then becomes what, if any, prejudice resulted from the breach of duty. Pp. 8–11.
3. To show prejudice where a plea offer has lapsed or been rejected because of counsel‘s deficient performance, defendants must demonstrate a reasonable probability both that they would have accepted
4. Applying these standards here, the Missouri court correctly concluded that counsel‘s failure to inform Frye of the written plea offer before it expired fell below an objective reasonableness standard, but it failed to require Frye to show that the plea offer would have been adhered to by the prosecution and accepted by the trial court. These matters should be addressed by the Missouri appellate court in the first instance. Given that Frye‘s new offense for driving without a license occurred a week before his preliminary hearing, there is reason to doubt that the prosecution would have adhered to the agreement or that the trial court would have accepted it unless they were re-quired by state law to do so. Pp. 13–15.
311 S. W. 3d 350, vacated and remanded.
KENNEDY, J., delivered the opinion of the Court, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., filed a dissenting opinion, in which ROBERTS, C. J., and THOMAS and ALITO, JJ., joined.
MISSOURI, PETITIONER v. GALIN E. FRYE
No. 10
SUPREME COURT OF THE UNITED STATES
March 21, 2012
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF MISSOURI, WESTERN DISTRICT
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
JUSTICE KENNEDY delivered the opinion of the Court.
The
I
In August 2007, respondent Galin Frye was charged with driving with a revoked license. Frye had been convicted for that offense on three other occasions, so the State of Missouri charged him with a class D felony, which carries a maximum term of imprisonment of four years. See
On November 15, the prosecutor sent a letter to Frye‘s counsel offering a choice of two plea bargains. App. 50. The prosecutor first offered to recommend a 3-year sentence if there was a guilty plea to the felony charge, without a recommendation regarding probation but with a recommendation that Frye serve 10 days in jail as so-called “shock” time. The second offer was to reduce the charge to a misdemeanor and, if Frye pleaded guilty to it, to recommend a 90-day sentence. The misdemeanor charge of driving with a revoked license carries a maximum term of imprisonment of one year. 311 S. W. 3d 350, 360 (Mo. App. 2010). The letter stated both offers would expire on December 28. Frye‘s attorney did not advise Frye that the offers had been made. The offers expired. Id., at 356.
Frye‘s preliminary hearing was scheduled for January 4, 2008. On December 30, 2007, less than a week before the hearing, Frye was again arrested for driving with a revoked license. App. 47–48, 311 S. W. 3d, at 352–353. At the January 4 hearing, Frye waived his right to a preliminary hearing on the charge arising from the August 2007 arrest. He pleaded not guilty at a subsequent arraignment but then changed his plea to guilty. There was no underlying plea agreement. App. 5, 13, 16. The state trial court accepted Frye‘s guilty plea. Id., at 21. The prosecutor recommended a 3-year sentence, made no recommendation regarding probation, and requested 10 days shock time in jail. Id., at 22. The trial judge sentenced
Frye filed for postconviction relief in state court. Id., at 8, 25–29. He alleged his counsel‘s failure to inform him of the prosecution‘s plea offer denied him the effective assistance of counsel. At an evidentiary hearing, Frye testified he would have entered a guilty plea to the misdemeanor had he known about the offer. Id., at 34.
A state court denied the postconviction motion, id., at 52–57, but the Missouri Court of Appeals reversed, 311 S. W. 3d 350. It determined that Frye met both of the requirements for showing a
To implement a remedy for the violation, the court deemed Frye‘s guilty plea withdrawn and remanded to allow Frye either to insist on a trial or to plead guilty to any offense the prosecutor deemed it appropriate to charge. This Court granted certiorari. 562 U. S. ___ (2011).
II
A
It is well settled that the right to the effective assistance of counsel applies to certain steps before trial. The ”
With respect to the right to effective counsel in plea negotiations, a proper beginning point is to discuss two cases from this Court considering the role of counsel in advising a client about a plea offer and an ensuing guilty plea: Hill v. Lockhart, 474 U. S. 52 (1985); and Padilla v. Kentucky, 559 U. S. ___ (2010).
Hill established that claims of ineffective assistance of counsel in the plea bargain context are governed by the two-part test set forth in Strickland. See Hill, supra, at 57. As noted above, in Frye‘s case, the Missouri Court of Appeals, applying the two part test of Strickland, determined first that defense counsel had been ineffective and second that there was resulting prejudice.
In Hill, the decision turned on the second part of the Strickland test. There, a defendant who had entered a guilty plea claimed his counsel had misinformed him of the amount of time he would have to serve before he became eligible for parole. But the defendant had not alleged that, even if adequate advice and assistance had
In Padilla, the Court again discussed the duties of counsel in advising a client with respect to a plea offer that leads to a guilty plea. Padilla held that a guilty plea, based on a plea offer, should be set aside because counsel misinformed the defendant of the immigration consequences of the conviction. The Court made clear that “the negotiation of a plea bargain is a critical phase of litiga-tion for purposes of the
In the case now before the Court the State, as petitioner, points out that the legal question presented is different from that in Hill and Padilla. In those cases the claim was that the prisoner‘s plea of guilty was invalid because counsel had provided incorrect advice pertinent to the plea. In the instant case, by contrast, the guilty plea that was accepted, and the plea proceedings concerning it in court, were all based on accurate advice and information from counsel. The challenge is not to the advice pertaining to the plea that was accepted but rather to the course of legal representation that preceded it with respect to other potential pleas and plea offers.
To give further support to its contention that the instant case is in a category different from what the Court considered in Hill and Padilla, the State urges that there is no right to a plea offer or a plea bargain in any event. See Weatherford v. Bursey, 429 U. S. 545, 561 (1977). It claims Frye therefore was not deprived of any legal benefit to which he was entitled. Under this view, any wrongful or mistaken action of counsel with respect to earlier plea offers is beside the point.
The State is correct to point out that Hill and Padilla concerned whether there was ineffective assistance lead-ing to acceptance of a plea offer, a process involving a formal court appearance with the defendant and all coun-sel present. Before a guilty plea is entered the defendant‘s understanding of the plea and its consequences can be established on the record. This affords the State substantial protection against later claims that the plea was the result of inadequate advice. At the plea entry proceedings the trial court and all counsel have the opportunity to establish on the record that the defendant understands the process that led to any offer, the advantages and disadvantages of accepting it, and the sentencing consequences or possibilities that will ensue once a conviction is entered based upon the plea. See, e.g.,
When a plea offer has lapsed or been rejected, however, no formal court proceedings are involved. This underscores that the plea-bargaining process is often in flux, with no clear standards or timelines and with no judicial supervision of the discussions between prosecution and defense. Indeed, discussions between client and defense counsel are privileged. So the prosecution has little or no notice if something may be amiss and perhaps no capacity to intervene in any event. And, as noted, the State insists there is no right to receive a plea offer. For all these reasons, the State contends, it is unfair to subject it to the consequences of defense counsel‘s inadequacies, especially when the opportunities for a full and fair trial, or, as here, for a later guilty plea albeit on less favorable terms, are preserved.
The State‘s contentions are neither illogical nor without some persuasive force, yet they do not suffice to overcome a simple reality. Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. See Dept. of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics Online, Table 5.22.2009, http://www.albany.edu/sourcebook/pdf/t5222009.pdf (all Internet materials as visited Mar. 1, 2012, and available in Clerk of Court‘s case file); Dept. of Justice, Bureau of Justice Statistics, S. Rosenmerkel, M. Durose, & D. Farole, Felony Sentences in State Courts, 2006-Statistical Tables, p. 1 (NCJ226846, rev. Nov. 2010), http://bjs.ojp.usdoj.gov/content/pub/pdf/fssc06st.pdf; Padilla, supra, at ___ (slip op., at 15) (recognizing pleas account for nearly 95% of all criminal convictions). The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the
To note the prevalence of plea bargaining is not to criticize it. The potential to conserve valuable prosecutorial resources and for defendants to admit their crimes and receive more favorable terms at sentencing means that a plea agreement can benefit both parties. In order that these benefits can be realized, however, criminal defendants require effective counsel
B
The inquiry then becomes how to define the duty and responsibilities of defense counsel in the plea bargain process. This is a difficult question. “The art of negotiation is at least as nuanced as the art of trial advocacy and it presents questions farther removed from immediate judicial supervision.” Premo v. Moore, 562 U. S. ___, ___ (2011) (slip op., at 8–9). Bargaining is, by its nature, defined to a substantial degree by personal style. The alternative courses and tactics in negotiation are so individual that it may be neither prudent nor practicable to try to elaborate or define detailed standards for the proper discharge of defense counsel‘s participation in the process. Cf. ibid.
This case presents neither the necessity nor the occasion to define the duties of defense counsel in those respects, however. Here the question is whether defense counsel has the duty to communicate the terms of a formal offer to accept a plea on terms and conditions that may result in a lesser sentence, a conviction on lesser charges, or both.
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.
Though the standard for counsel‘s performance is not determined solely by reference to codified standards of professional practice, these standards can be important guides. The American Bar Association recommends defense counsel “promptly communicate and explain to the defendant all plea offers made by the prosecuting attorney,” ABA Standards for Criminal Justice, Pleas of Guilty 14–3.2(a) (3d ed. 1999), and this standard has been adopted by numerous state and federal courts over the last 30 years. See, e.g., Davie v. State, 381 S. C. 601, 608–609, 675 S. E. 2d 416, 420 (2009); Cottle v. State, 733 So. 2d 963, 965–966 (Fla. 1999); Becton v. Hun, 205 W. Va. 139, 144, 516 S. E. 2d 762, 767 (1999); Harris v. State, 875 S. W. 2d 662, 665 (Tenn. 1994); Lloyd v. State, 258 Ga. 645, 648, 373 S. E. 2d 1, 3 (1988); United States v. Rodriguez Rodriguez, 929 F. 2d 747, 752 (CA1 1991) (per curiam); Pham v. United States, 317 F. 3d 178, 182 (CA2 2003); United States ex rel. Caruso v. Zelinsky, 689 F. 2d 435, 438 (CA3 1982); Griffin v. United States, 330 F. 3d 733, 737 (CA6 2003); Johnson v. Duckworth, 793 F. 2d 898, 902 (CA7 1986); United States v. Blaylock, 20 F. 3d 1458, 1466 (CA9 1994); cf. Diaz v. United States, 930 F. 2d 832, 834 (CA11 1991). The standard for prompt communi-cation and consultation is also set out in state bar professional standards for attorneys. See, e.g.,
The prosecution and the trial courts may adopt some measures to help ensure against late, frivolous, or fabricated claims
Here defense counsel did not communicate the formal offers to the defendant. As a result of that deficient performance, the offers lapsed. Under Strickland, the question then becomes what, if any, prejudice resulted from the breach of duty.
C
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. To establish prejudice in this instance, it is necessary 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. Cf. Glover v. United States, 531 U. S. 198, 203 (2001) (“[A]ny amount of [additional] jail time has
This application of Strickland to the instances of an uncommunicated, lapsed plea does nothing to alter the standard laid out in Hill. 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.” Hill, 474 U. S., at 59. Hill was correctly decided and applies in the context in which it arose. Hill does not, however, provide the sole means for demonstrating
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. This further showing is of particular importance because a defendant has no right to be offered a plea, see Weatherford, 429 U. S., at 561, nor a federal right that the judge accept it, Santobello v. New York, 404 U. S. 257, 262 (1971). In at least some States, including Missouri, it appears the prosecution has some discretion to cancel a plea agreement to which the defendant has agreed, see, e.g., 311 S. W. 3d, at 359 (case below);
III
These standards must be applied to the instant case. As regards the deficient performance prong of Strickland, the Court of Appeals found the “record is void of any evidence of any effort by trial counsel to communicate the [formal] Offer to Frye during the Offer window, let alone any evidence that Frye‘s conduct interfered with trial counsel‘s ability to do so.” 311 S. W. 3d, at 356. On this record, it is evident that Frye‘s attorney did not make a meaningful attempt to inform the defendant of a written plea offer before the offer expired. See supra, at 2. The Missouri Court of Appeals was correct that “counsel‘s representation fell below an objective standard of reasonableness.” Strickland, supra, at 688.
The Court of Appeals erred, however, in articulating the precise standard for prejudice in this context. As noted, a defendant in Frye‘s position must show not only a reasonable probability that he
There appears to be a reasonable probability Frye would have accepted the prosecutor‘s original offer of a plea bargain if the offer had been communicated to him, because he pleaded guilty to a more serious charge, with no promise of a sentencing recommendation from the prosecutor. It may be that in some cases defendants must show more than just a guilty plea to a charge or sentence harsher than the original offer. For example, revelations between plea offers about the strength of the prosecution‘s case may make a late decision to plead guilty insufficient to demonstrate, without further evidence, that the defendant would have pleaded guilty to an earlier, more generous plea offer if his counsel had reported it to him. Here, however, that is not the case. The Court of Appeals did not err in finding Frye‘s acceptance of the less favorable plea offer indicated that he would have accepted the earlier (and more favorable) offer had he been apprised of it; and there is no need to address here the showings that might be required in other cases.
The Court of Appeals failed, however, to require Frye to show that the first plea offer, if accepted by Frye, would have been adhered to by the prosecution and accepted by the trial court. Whether the prosecution and trial court are required to do so is a matter of state law, and it is not the place of this Court to settle those matters. The Court has established the minimum requirements of the
We remand for the Missouri Court of Appeals to consider these state-law questions, because they bear on the federal question of Strickland prejudice. If, as the Missouri court stated here, the prosecutor could have canceled the plea agreement, and if Frye fails to show a reasonable probability the prosecutor would have adhered to the agreement, there is no Strickland prejudice. Likewise, if the trial court could have refused to accept the plea agreement, and if Frye fails to show a reasonable probability the trial court would have accepted the plea, there is no Strickland prejudice. In this case, given Frye‘s new offense for driving without a license on December 30, 2007, there is reason to doubt that the prosecution would have adhered to the agreement or that the trial court would have accepted it at the January 4, 2008, hearing, unless they were required by state law to do so.
It is appropriate to allow the Missouri Court of Appeals to address this question in the first instance. The judgment of the Missouri Court of Appeals is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
MISSOURI, PETITIONER v. GALIN E. FRYE
No. 10–444
SUPREME COURT OF THE UNITED STATES
March 21, 2012
566 U. S. ____ (2012)
SCALIA, J., dissenting
JUSTICE SCALIA,
This is a companion case to Lafler v. Cooper, post, p. ___. The principal difference between the cases is that the fairness of the defendant‘s conviction in Lafler was established by a full trial and jury verdict, whereas Frye‘s conviction here was established by his own admission of guilt, received by the court after the usual colloquy that assured it was voluntary and truthful. In Lafler all that could be said (and as I discuss there it was quite enough) is that the fairness of the conviction was clear, though a unanimous jury finding beyond a reasonable doubt can sometimes be wrong. Here it can be said not only that the process was fair, but that the defendant acknowledged the correctness of his conviction. Thus, as far as the reasons for my dissent are concerned, this is an a fortiori case. I will not repeat here the constitutional points that I discuss at length in Lafler, but I will briefly apply those points to the facts here and comment upon a few statements in the Court‘s analysis.
* * *
Galin Frye‘s attorney failed to inform him about a plea offer, and Frye ultimately pleaded guilty without the benefit of a deal. Counsel‘s mistake did not deprive Frye of any substantive or procedural right; only of the oppor-tunity to accept a plea bargain to which he had no entitlement in the first place. So little entitlement that, had he known of and accepted the bargain, the prosecution would have been able to withdraw it right up to the point that his guilty plea pursuant to the bargain was accepted. See 311 S. W. 3d 350, 359, and n. 4 (Mo. App. 2010).
The Court acknowledges, moreover, that Frye‘s conviction was untainted by attorney error: “[T]he guilty plea that was accepted, and the plea proceedings concerning it in court, were all based on accurate advice and information from counsel.” Ante, at 5. Given the “ultimate focus” of our ineffective-assistance cases on “the fundamental fairness of the proceeding whose result is being challenged,” Strickland v. Washington, 466 U. S. 668, 696 (1984), that should be the end of the matter. Instead, here, as in Lafler, the Court mechanically applies an outcome-based test for prejudice, and mistakes the possibility of a different result for constitutional injustice. As I explain in Lafler, post, p. ___ (dissenting opinion), that approach is contrary to our precedents on the right to effective counsel, and for good reason.
The Court announces its holding that “as a general rule, defense counsel has the duty to communicate formal offers from the prosecution” as though that resolves a disputed point; in reality, however, neither the State nor the Solicitor General argued that counsel‘s performance here was adequate. Ante, at 9. The only issue was whether the inadequacy deprived Frye of his constitutional right to a fair trial. In other cases, however, it will not be so clear that counsel‘s plea-bargaining skills, which must now meet a constitutional minimum, are adequate. “[H]ow to define the duty and responsibilities of defense counsel in the plea bargain process,” the Court acknowledges, “is a difficult question,” since “[b]argaining is, by its nature, defined to a substantial degree by personal style.” Ante, at 8. Indeed. What if 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? It seems inconceivable that a lawyer could compromise
While the inadequacy of counsel‘s performance in this case is clear enough, whether it was prejudicial (in the sense that the Court‘s new version of Strickland requires) is not. The Court‘s description of how that question is to be answered on remand is alone enough to show how unwise it is to constitutionalize the plea-bargaining process. Prejudice is to be determined, the Court tells us, by a process of retrospective crystal-ball gazing posing as legal analysis. First of all, of course, we must estimate whether the defendant would have accepted the earlier plea bargain. Here that seems an easy question, but as the Court acknowledges, ante, at 14, it will not always be. Next, since Missouri, like other States, permits accepted plea offers to be withdrawn by the prosecution (a reality which alone should suffice, one would think, to demonstrate that Frye had no entitlement to the plea bargain), we must estimate whether the prosecution would have withdrawn the plea offer. And finally, we must estimate whether the trial court would have approved the plea agreement. These last two estimations may seem easy in the present case, since Frye committed a new infraction before the hearing at which the agreement would have been presented; but they assuredly will not be easy in the mine run of cases.
The Court says “[i]t can be assumed that in most jurisdictions prosecutors and judges are familiar with the boundaries of acceptable plea bargains and sentences.” Ante, at 13. Assuredly it can, just as it can be assumed that the sun rises in the west; but I know of no basis for the assumption. Virtually no cases deal with the standards for a prosecutor‘s withdrawal from a plea agreement beyond stating the general rule that a prosecutor may withdraw any time prior to, but not after, the entry of a guilty plea or other action constituting detrimental reliance on the defendant‘s part. See, e.g., United States v. Kuchinski, 469 F. 3d 853, 857–858 (CA9 2006). And cases addressing trial courts’ authority to accept or reject plea agreements almost universally observe that a trial court enjoys broad discretion in this regard. See, e.g., Missouri v. Banks, 135 S. W. 3d 497, 500 (Mo. App. 2004) (trial court abuses its discretion in rejecting a plea only if the decision “is so arbitrary and unreasonable that it shocks the sense of justice and indicates a lack of careful consideration” (internal quotation marks omitted)). Of course after today‘s opinions there will be cases galore, so the Court‘s assumption would better be cast as an optimistic prediction of the certainty that will emerge, many years hence, from our newly created constitutional field of plea-bargaining law. Whatever the “boundaries” ultimately devised (if that were possible), a vast amount of discretion will still remain, and 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.
The plea-bargaining process is a subject worthy of regulation, since it is the means