U.S. Supreme Court Broadens Right To Effective Assistance of Counsel

Supreme Court Broadens Right to Effective Assistance of Counsel
The New York Law Journal by Barry Kamins  -  May 25, 2012

Two months ago, the U.S. Supreme Court decided three cases representing a significant shift in the court's regulation of the criminal justice system. In Missouri v. Frye1 and Lafler v. Cooper,2 the court turned its attention to discrete areas of the plea bargaining process. In Martinez v. Ryan,3 the court addressed the constitutional right to counsel in state collateral proceedings attacking the validity of a conviction. This column will discuss these decisions and their possible impact on New York criminal procedure.  In the past, the court has devoted less attention to the plea bargaining process than the trial itself when defining the role of counsel, even though the court had noted on occasion the significance of the plea bargaining process as a component of the criminal justice system.4 Two years ago, however, the court held that a defendant has a right to the effective assistance of counsel during plea negotiations. In Padilla v. Kentucky,5 the court held that counsel has an obligation, under the Sixth Amendment, to give accurate advice about the immigration consequences of a proposed guilty plea.  In Frye, the court further examined the role of counsel during plea negotiations by addressing, for the first time, deficient legal representation that results in the rejection of a favorable plea offer. The court announced that, in order to provide effective assistance of counsel, defense counsel has the duty to communicate accurately the terms of a plea offer. In other words, the constitutional right to counsel now extends not only to guilty pleas that are accepted, but to the negotiation and consideration of plea offers that lapse or are rejected.  The court was persuaded that the time has come to recognize and accept a fact of life in the criminal justice system: Our system is a system of pleas and not trials. According to statistics kept by the Department of Justice, 94 percent of state convictions in this country are the result of guilty pleas.6 Acknowledging that plea bargains are essential to the administration of the criminal justice system, the court concluded that the responsibilities of defense counsel at various stages of the plea bargaining process must also meet the Sixth Amendment's standard of effective assistance of counsel.

In Frye, the lawyer for the state of Missouri, however, argued that the plea bargaining process is often in flux, with no clear standards of timeliness and with no judicial supervision of the discussions between prosecution and defense. Thus, it was argued, it was unfair to subject the state to the consequences of defense counsel's inadequacies at this stage of the process.  In Frye, defense counsel did not advise his client that the prosecutor had offered a choice of two plea bargains, one of which would have resulted in a 90-day jail sentence following a plea to a misdemeanor. The offer expired, and ultimately the defendant pled guilty to a felony and was sentenced to a three-year prison sentence.  Applying the two-part test in Strickland v. Washington,7 the court initially concluded that the failure to communicate the plea offer constituted ineffective assistance of counsel under the first, i.e. performance, prong. Under the second prong, the court wrestled with the issue of prejudice: what must a defendant demonstrate in order to establish that prejudice resulted from counsel's deficient performance under these circumstances?  The court formulated a three-step approach to determine whether the defendant suffered any prejudice from counsel's errors in the plea-bargaining process. First, a defendant must demonstrate a reasonable probability that he would have taken a plea offer. That can be done in many cases by establishing that the defendant ultimately pleaded guilty to a more serious charge with a harsher sentence.  Second, the defendant must establish a reasonable probability that the offer would have been adhered to by the prosecution and approved by the court.8 Third, the defendant must establish a reasonable probability that the plea offer would have been more favorable than the ultimate outcome of the case.

In Lafler v. Cooper, the plea offer was communicated to the defendant but defense counsel was ineffective nonetheless. The matter reached the court after the parties had conceded that defense counsel's advice with respect to a plea offer had been deficient. The defendant was charged with assault with the intent to murder, after firing a gun and hitting the victim in the buttock, hip and abdomen. Although the defendant was offered a sentence of four to seven years in jail in exchange for a guilty plea, the plea was rejected; counsel convinced the defendant that the prosecution would not be able to establish the defendant's intent to murder because the victim had been shot below the waist. The defendant proceeded to trial, was convicted, and received a sentence of 15 to 30 years in jail.  Based upon the inept advice given to him by his attorney, the defendant established that his attorney's ineffectiveness caused the rejection of a plea, leading to a conviction after trial with more serious consequences. The court then formulated an elaborate scheme to determine an appropriate remedy under these circumstances. First, the defendant must establish that, but for counsel's deficient performance, there was a reasonable probability that he would have taken the plea and the court would have accepted it.  Upon that showing, a court can determine whether the defendant should receive the term of imprisonment offered in the plea, the sentence he received at trial, or something in between. In fashioning a remedy, the court noted that a court might order the prosecution to re-offer the plea agreement and, assuming the defendant accepts, the trial court could then exercise its discretion in vacating the conviction after trial and resentencing the defendant pursuant to the plea agreement.  Dissenting in both cases, Justice Antonin Scalia was troubled by these proposed remedies which, he opined, will lead to "further constitutional litigation that will burden the criminal process."9 Justice Samuel Alito, in a separate dissent, expressed some skepticism in giving lower courts the discretion to determine a proper remedy: he cautioned that only "[t]ime will tell how this works out."10

Impact of 'Frye' and 'Lafler'

What impact will Frye and Lafler have on New York practice? The New York Court of Appeals has not directly addressed the issue of whether counsel will be held constitutionally deficient for failure to convey a plea offer.11 However, numerous appellate courts around the state have concluded that the failure of counsel to advise their client of a plea offer, or the failure of counsel to advise a client on the merits of a plea offer, constitutes ineffective assistance of counsel.12 The Court of Appeals has held that in order to prevail on this claim, a defendant has the burden to demonstrate that a plea offer was made, that defense counsel failed to inform him of that offer, and that the defendant would have been willing to accept the offer.13  The U.S. Court of Appeals for the Second Circuit, in Boria v. Keane,14 held that counsel has a constitutional duty to discuss with a client a proposed plea bargain and the advisability of accepting it. Thus, failure to do so violates a defendant's right to the effective assistance of counsel.  In Boria, the defendant was indicted for a class A-II felony. After the arraignment, the prosecution advised defense counsel that the prosecutor would accept a guilty plea with a jail sentence of one to three years but warned that if the offer was rejected, there would be a superseding indictment for a class A-I felony that would make any similar plea impossible. Counsel allowed the defendant to reject the offer but did not give him any advice as to the wisdom of doing so. The defendant was ultimately indicted for the A-I felony, convicted after trial, and sentenced to 20 years to life.  After determining that the defendant had been denied the effective assistance of counsel, the Second Circuit held that there was a reasonable probability that, had the defendant been made aware of the plea offer, he would have accepted it. In structuring a remedy, the court determined that it would not be feasible, under the circumstances, to put the defendant back in a position of being able to plead to the original indictment. Instead, the court ordered the defendant's sentence reduced to the time he had served, i.e., six years, and discharged the defendant from custody, leaving the conviction intact.

In light of Frye and Lafler, it remains to be seen how New York courts will grapple with fashioning a remedy for a defendant who has received deficient legal representation during the plea bargaining stage. In certain cases, there may not be an easy solution.  For example, in People v. Hoffman,15 the defendant was never told that there was a plea offer of two class D and E felonies after he had been indicted for manslaughter in the second degree, a class C felony. The indictment was later dismissed and, upon re-presentment, the defendant was indicted for murder in the second degree. He was convicted after trial and sentenced to 25 years to life imprisonment.  The defendant later moved to set aside the conviction. The trial court noted the procedural problems in fashioning a proper remedy: "…assuming arguendo the correctness of defendant's factual claims, the court is asked to overturn a jury verdict and the sentence imposed, dismiss a validly obtained indictment, reinstate a previously dismissed indictment and then force the District Attorney to offer a reduced plea…[t]his court believes there are statutory and constitutional obstacles to that request."16 The court also questioned the right of any court to direct a prosecutor to re-offer a plea.  The remedy was ultimately fashioned by the federal district court in the habeas proceeding.17 It directed that the defendant be released from jail after he had served the maximum period of incarceration he could have received under the initial plea offer. In the past, this has been the nature of the remedy fashioned by federal habeas courts under similar circumstances.  Clearly, Frye and Lafler have set forth challenging procedural issues for courts when they must devise a remedy for deficient representation during the plea bargaining process. Whether courts will be able to fashion more ambitious remedies as suggested by the Supreme Court remains to be seen.

Collateral Proceedings

The third case decided by the court, Martinez v. Ryan,18 addresses the right of counsel in a different context—the right to effective assistance of counsel in collateral state post-conviction proceedings. The Supreme Court has always drawn a bright line between direct appeals, in which the right to counsel has been recognized, and collateral challenges, in which no right to counsel has been recognized.19  Martinez presented the court with an opportunity to determine whether there is a constitutional right to effective counsel in collateral proceedings when it is the first occasion to raise a claim of ineffective assistance at trial. The court chose not to answer that question. It held instead that when states, such as New York, do not provide counsel for an initial-review collateral proceeding involving ineffective assistance of trial counsel, i.e. CPL 440.10, or when an attorney is ineffective in such a proceeding, the defendant can establish "cause" in a federal habeas proceeding to excuse the defendant's failure to challenge the ineffectiveness of trial counsel.  The court made clear that its holding was equitable rather than constitutional in nature. By permitting a federal habeas court to hear a claim of ineffective assistance of trial counsel, under these circumstances, the court acknowledged that, as an equitable matter, an initial-review collateral proceeding without the benefit of counsel may not be sufficient to ensure that proper consideration was given to a substantial claim.  The court noted that the nature of its equitable ruling afforded states a choice. First, they could choose to appoint counsel in initial-review collateral proceedings. This would eliminate many claims in federal court that trial counsel was ineffective because, if appointed counsel does not properly raise the claim in state court, it would be procedurally barred in federal court. In the alternative, states could choose not to appoint counsel but would be required to defend the ineffective assistance of counsel claims on the merits in federal habeas proceedings.

What effect, if any, will Martinez have upon New York proceedings? From a constitutional perspective, the decision will have no effect. Twenty years ago, the Supreme Court held that the federal constitution does not mandate that states appoint counsel to indigent defendants in collateral proceedings.20 Nor is there a state constitutional right to counsel in a CPL 440 proceeding.21 The Supreme Court has now also made it clear in Martinez that it was not creating a constitutional right to effective assistance of counsel in collateral proceedings in which a defendant can raise for the first time a claim of ineffective assistance at trial.  Notwithstanding the lack of any constitutional foundation, Martinez may still have an impact in New York from a public policy perspective. Indeed, Scalia, in his dissent, makes such a prediction. He opines that the decision in Martinez will have the practical effect of forcing states to appoint counsel in all cases lest, "the State be propelled into federal habeas review of the adequacy of trial-court representation that occurred many years ago."22  Whether that happens in New York, of course, remains to be seen. But, clearly, Martinez will stimulate a dialogue on when attorneys should be assigned in New York to handle ineffective-assistance claims in collateral proceedings. As the court in Martinez noted, there are three systems in place by which states assign attorneys to these claims. New York utilizes the most restrictive method: appointing counsel only if a claim requires an evidentiary hearing.  Some have argued that New York should utilize a less restrictive system: appointing counsel if the claims have some merit to them or the court deems the record worthy of further development. The New York City Bar Association has recommended amending County Law §722(5) to authorize compensation to attorneys who are already assigned to handle the direct judgment appeal pursuant to Section 18-B of the County Law. Under the amendment, these attorneys would also be paid to investigate meritorious post-conviction CPL 440 motions and file papers in support of such motions.  As part of the dialogue that will take place, a number of issues will need to be discussed. For example, will the new "equitable rule" announced in Martinez be limited to ineffective assistance of trial counsel cases or will the rule include other cases in which the initial-review proceeding will be the first opportunity for a particular claim to be raised, e.g. Brady issues, prosecutorial misconduct, etc.?23 Economically, would it be more feasible for New York to assign attorneys at the initial-review hearing rather than expend the time, energy and resources to defend more of such claims on the merits in federal district court?  In its trio of recent decisions, the Supreme Court has focused on areas of the criminal justice system that had escaped the attention of the court until now. It is fair to say that New York courts will be grappling with the numerous procedural and policy issues that these decisions have raised.  Barry Kamins is an acting Supreme Court Justice, Administrative Judge, Criminal Court of the City of New York, and Administrative Judge for Criminal Matters in Brooklyn Supreme and Criminal Courts.

Endnotes:

1. Missouri v. Frye, 566 US—,132 SCt 1399 (2012).
2. Lafler v. Cooper, 566 US—,132 S Ct 1376 (2012).
3. Martinez v. Ryan, 566 US—,132 S Ct 1309 (2012).
4. Blackledge v. Allison, 431 US 63, 71 (1977); Brady v. United States, 397 US 742, 752 (1970).
5. Padilla v. Kentucky, 559 US—, 130 SCt 1473 (2010).
6. Missouri v. Frye, 132 SCt at 1402.
7. Strickland v. Washington, 466 US 668 (1984).
8. The court remanded the case to the Missouri appellate court to determine whether the plea offer would be adhered to by the prosecution and accepted by the trial court since the appellate court did not address this issue in the first instance. Missouri v. Frye, 132 SCt at 1403.
9. Lafler v. Cooper, 132 SCt at 1392 (Scalia, J., dissenting).
10. Id. at 1390 (Alito, J., dissenting).
11. However, the court has held that the failure to give correct advice about the immigration consequences of a guilty plea does constitute ineffectiveness of counsel. To establish prejudice, the defendant must establish a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have proceeded to trial. People v. McDonald, 1 NY3d 109 (2003). See also, People v. Perron, 287 AD2d 808 (3d Dept 2001).
12. People v. Reed, 152 AD2d 481 (1st Dept. 1989); People v. Sherk, 269 AD2d 755 (4th Dept 2000); People v. Howard, 12 AD3d 1127 (4th Dept. 2004).
13. People v. Fernandez, 5 NY3d 813 (2005).
14. 99 F3d 492 (2d Cir. 1996).
15. 173 Misc. 2d 529 (Cattaraugus County Ct 1997).
16. Id. at 531.
17. Hoffman v. Herbert, 2006 US Dist Lexis 46186 (WDNY 2006).
18. 132 S Ct. 1309 (2012).
19. Pennsylvania v. Finley, 481 US 551 (1987).
20. Id.
21. People v. Richardson, 159 Misc 2d 167 (Sup Ct Kings Co 1993).
22. Martinez v. Ryan,132 SCt at 1322 (Scalia, J., dissenting).
23. See Id. at 1321 (Scalia, J., dissenting).