566 U.S. 134 (2012)
In August 2007, the State of Missouri charged Galin Frye with driving with a revoked license as a class D felony based on his three prior convictions for the same offense.1
On November 15, 2007, the prosecutor sent Frye’s counsel a letter containing two plea offers that would expire on December 28. One offer recommended a three-year sentence on the felony charge with ten days of shock time in jail. The other offered to reduce the charge to a misdemeanor and recommend a ninety-day sentence.2
Frye’s attorney did not inform him of either offer, and both expired without response.3 On December 30, 2007, Frye was arrested again for driving with a revoked license.4 At a January 4, 2008 preliminary hearing, Frye waived his right to a hearing on the original charge and later entered a guilty plea to the felony without any plea agreement.5 The trial court sentenced him to three years in prison.6
Frye sought postconviction relief in state court, claiming his counsel provided ineffective assistance by failing to communicate the plea offers. At an evidentiary hearing, Frye testified that he would have pleaded guilty to the misdemeanor if he had known of the offer.7 A state court denied relief, but the Missouri Court of Appeals reversed that decision.
The Supreme Court granted certiorari to review the case.8
Whether the constitutional right to counsel extends to the negotiation and consideration of plea offers that lapse or are rejected?9
The Sixth Amendment right to effective assistance of counsel applies to the States through the Fourteenth Amendment. It extends to the negotiation and consideration of plea offers that lapse or are rejected.10 Plea bargaining constitutes a critical stage of criminal proceedings because the vast majority of convictions result from guilty pleas rather than trials.11
Yes. The established facts demonstrate that in August 2007 the State of Missouri charged Galin Frye with driving with a revoked license as a class D felony based on three prior convictions.12 On November 15, 2007, the prosecutor sent Frye's counsel a letter with two formal plea offers that expired on December 28 without any communication to Frye. Frye's attorney failed to inform him of the offers, which lapsed, and Frye later entered an open guilty plea to the felony after a new arrest on December 30, 2007.
Because counsel's duty includes communicating formal plea offers from the prosecution, the failure here shows that the right to effective assistance reaches the plea negotiation process itself.13
The constitutional right to counsel extends to the negotiation and consideration of plea offers that lapse or are rejected.14
Related opinions on this issue
Joined by The Chief Justice, Justice Thomas, And Justice Alito
Justice Scalia dissents because the Sixth Amendment addresses the fairness of the conviction itself rather than the fairness of the plea-bargaining process.15 He notes that Frye’s conviction rested on a voluntary guilty plea entered after the usual colloquy ensuring it was truthful, and that counsel’s mistake deprived Frye only of an opportunity to accept a plea bargain to which he had no entitlement.16 Scalia argues that the majority improperly constitutionalizes plea bargaining by imposing a duty to communicate offers and by requiring retrospective speculation about whether prosecutors or judges would have approved the deal.17
He maintains that such an approach exceeds the Sixth Amendment’s focus on the fundamental fairness of the proceeding whose result is challenged.
Whether a defendant must demonstrate a reasonable probability that he would have accepted the lapsed plea offer, that the prosecution would not have withdrawn it, and that the trial court would have accepted it, in order to show prejudice from counsel’s deficient performance?18
To establish prejudice from counsel's failure to communicate a plea offer, a defendant must demonstrate a reasonable probability that he would have accepted the earlier offer, that the prosecution would not have withdrawn it, and that the trial court would have accepted it, producing a more favorable end result such as a lesser charge or reduced sentence.19
Yes. The established facts show that Frye testified at the evidentiary hearing he would have pleaded guilty to the misdemeanor offer had it been communicated.20 The Missouri Court of Appeals found deficient performance but applied an incomplete prejudice standard.21 Because Frye committed a new driving offense on December 30, 2007, before the January 4, 2008 hearing, doubt exists whether the prosecution would have adhered to the agreement or the trial court would have accepted it under Missouri law.22
The case must therefore be remanded for the state court to apply the full Strickland prejudice inquiry to these facts.23
A defendant must demonstrate a reasonable probability of accepting the lapsed offer and that the prosecution and trial court would have permitted the more favorable plea to proceed.24
Related opinions on this issue
Joined by The Chief Justice, Justice Thomas, And Justice Alito
Justice Scalia also dissents from the prejudice analysis.25 He contends that the majority requires a series of retrospective estimations about whether the defendant would have accepted the offer, whether the prosecution would have withdrawn it, and whether the trial court would have approved it.26 Scalia maintains that such crystal-ball gazing is unwarranted because Frye had no substantive right to the plea bargain and the conviction itself remained fair and voluntary.
He warns that the approach forces courts to engage in speculative inquiries that the Sixth Amendment does not demand and that will produce inconsistent results across jurisdictions.27