In the second half of a U.S. Supreme Court ineffective assistance double-header, the justices considered whether a lawyer’s failure to inform his client of a plea deal gives the defendant a constitutional remedy after he is arrested again and convicted of an additional charge.
The case of Missouri v. Frye involves a plea deal offered to Galin E. Frye’s attorney after Frye was arrested and charged with a felony, driving with a revoked license. It was the fourth time Frye was charged with the offense, and he faced up to four years in prison.
Prosecutors sent Frye’s attorney, a public defender, two plea offers – a guilty plea of driving with a revoked license with a 10-day sentence in the county jail or a guilty plea on a lesser misdemeanor with a 90-day jail sentence. He was given 45 days to respond. The attorney never notified Frye of the plea offers nor did he try to contact Frye.
Two days after the 45 day deadline, Frye was again arrested for driving with a revoked license.
He entered a guilty plea to the new felony charge and was sentenced to three years in prison.
After Frye’s post-conviction attorney learned of the plea deal Frye’s previous lawyer never communicated, Frye sought post-conviction relief, arguing that his case was prejudiced by his lawyer’s ineffective assistance.
The trial court rejected the claim, but the Missouri Court of Appeals reversed, holding that Frye’s ultimate guilty plea was unknowing, involuntary and unintelligent because of his previous attorney’s failure to disclose an offer he would otherwise have taken.
The U.S. Supreme Court granted certiorari. The Court also agreed to hear a similar case, Lafler v. Cooper, and scheduled it for oral arguments on the same day.
Missouri Attorney General Chris Koster argued that the fact that Frye “could have gotten a better deal” on an earlier date is not the standard for constitutional relief.
Since “the offer did not exist” once Frye was re-arrested, Koster said, there was no Sixth Amendment breach.
But Justice Antonin Scalia asked if the critical stage in the proceedings for Sixth Amendment purposes was “when the defendant does not accept the plea.”
“Plea negotiations, I don’t believe, are a critical stage because the back and forth between a prosecutor and a defense attorney,” Koster said. “The fate of the accused is not set.”
Scalia seemed to agree.
“If it were a critical stage, I suppose that counsel would be ineffective [just because] he was a bad negotiator,” Scalia said. “You tell him to turn down a deal that in fact was a pretty good deal, that would be ineffective assistance of counsel.”
“I understand that that would be one of the ramifications,” Koster said.
When Anthony A. Yang, assistant to the solicitor general arguing the case as amicus curiae, argued that “a guilty plea wipes free all kinds of constitutional violations,” Scalia was not prepared to go that far.
“No, the reason why that is not true is that the guilty plea must be entered with advice of counsel,” Scalia said. “You acknowledge that, don’t you? [The] guilty plea doesn’t erase everything if it has been entered without advice.”
“Correct,” Yang said, but added that the constitutional claim is erased if the plea is “knowing and intelligent.”
‘The punishment he deserved’?
Missouri Assistant Public Defender Emmett D. Queener argued on Frye’s behalf that his lawyer’s failure to deliver the plea offer changed the complexion of the entire case.
“Fundamental fairness and reliability of criminal process requires that an attorney provide his client information regarding matters in this case,” Queener said.
“Why is it unfair for the law [to give] this individual the punishment he deserved for the crime that he committed?” Scalia asked. “He admitted he did the crime and he got the degree of punishment that the law provides. What could be more fair than that?”
Queener said the parties were unable to take previous plea offers into account during the plea negotiations for the subsequent offense.
“Suppose [the prosecutor] told him: ‘I made that offer, but it’s off the table now,’” said Justice Samuel Alito. “What good would it have done him to know about something that happened in the past but was no longer available?”
“If this offer [were] available and he could have taken advantage of it before it expired,” Queener said. “And that was a finding by the court below.”
Scalia reminded Queener that a “plea offer may be withdrawn at any time by the prosecutor – indeed, even after it has been accepted.”
“[Is there] a constitutional right he’s being deprived of, given that the prosecutor can withdraw it even after he accepts it?” Scalia asked.
“We’re not arguing that there is a right to a particular plea,” Queener said. “He is entitled to the right to make a knowing and voluntary acceptance of a plea.”
A decision from the Court is expected later this term.