By: James Bell and Alex Gude of Bingham Greenebaum & Doll LLP
The recent United States Supreme Court case of Missouri v. Frye, 132 S. Ct. 1399, 2012 U.S. LEXIS 2321 (2012) may create advisements for defendants who wish to take cases to trial and may make courts an unwilling witness to plea negotiations.
In Frye, the defendant was charged with driving with a revoked license. Id. at *8. “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.” Id. While the case was pending, “the prosecutor sent a letter to Frye’s counsel offering a choice of two plea bargains,” including an offer to reduce the charge to a misdemeanor and to recommend, with a guilty plea, a 90 day sentence. Id. at *8-9. “Frye’s attorney did not advise Frye that the offers had been made,” and “the offers expired.” Id. at *9. Less than a week before Frye’s scheduled preliminary hearing, he was again arrested for driving with a revoked license. Id. At the preliminary hearing, Frye pleaded guilty with no underlying plea agreement and was sentenced to three years in prison. Id. at *9-10.
The issue in Frye was whether the Sixth Amendment right of effective assistance of counsel extended to the negotiation and consideration of plea offers that lapse or are rejected. Id. at *8. Specifically, Frye argued that “his counsel’s failure to inform him of the prosecution’s plea offer denied him the effective assistance of counsel,” and that “he would have entered a guilty plea to the misdemeanor had he known about the offer.” Id. at *10.
In siding with Frye, the Supreme Court explained that the “Sixth Amendment guarantees a defendant the right to have counsel present at all ‘critical’ stages of criminal proceedings.” Id. at *11. It concluded 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.” Id. at *20. As a result, Frye was denied effective assistance of counsel “[w]hen defense counsel allowed the plea offer to expire without advising the defendant or allowing him to consider it.” Id. The Supreme Court further explained that “[t]o 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.” Id. at *23. “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.” Id. at *23-24. Finally, “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.” Id. at *24.
The Supreme Court also suggested that “trial courts may adopt some measures to ensure against late, frivolous, or fabricated claims after a later, less advantageous plea offer has been accepted or after a trial leading to conviction with resulting harsh consequences.” Id. at *21-22. Specifically, it suggested that:
First, the fact of a formal offer means that its terms and its processing can be documented so that what took place in the negotiation process becomes more clear if some later inquiry turns on the conduct of earlier pretrial negotiations. Second, States may elect to follow rules that all offers must be in writing, again to ensure against later misunderstandings or fabricated charges. Third, formal offers can be made part of the record at any subsequent plea proceeding or before a trial on the merits, all to ensure that a defendant has been fully advised before those further proceedings commence.
Id. at *22.
The requirement that an attorney promptly communicate the status of an offer is nothing new. Rule 1.4 of the Indiana Rules of Professional Conduct requires that an attorney keep his or her client “reasonably informed about the status of a matter” and the Comment specifically requires that “a lawyer who receives from opposing counsel an offer of settlement in a civil controversy or a proffered plea bargain in a criminal case must promptly inform the client of its substance.”
However, making formal offers part of the record at “plea proceedings” or before a trial may be a new practice for some Indiana courts. Every lawyer who has worked in a criminal court has heard the phrase “the court is not a party to the plea agreement” countless times. Furthermore, only some courts inquire about plea negotiations prior to trial and it would be rare for a court to inquire about plea negotiations in a “plea proceeding.” After all, Rule 408 of the Indiana Rules of Evidence states that offers to settle matters are generally inadmissible and some lawyers on both sides are reluctant to share settlement offers for fear that it will affect sentencing or other proceedings in the matter.
Frye holds that attorneys have a duty to inform their clients of all pending offers. However, that concept has been on the books for a significant period of time. Now that this concept is part of Sixth Amendment law, it may change how Indiana criminal courts conduct business.•