Deal or no deal? Remedying ineffective assistance of counsel during plea bargaining.

• Author: Perez, David A.

NOTE CONTENTS INTRODUCTION I. OVERVIEW OF THE RIGHT TO COUNSEL DURING PLEA BARGAINING II. NO HARM, NO FOUL: THE CASE AGAINST PREJUDICE A. The Difficulties of Determining Prejudice B. The Leading "No Remedy" Decisions: State v. Greuber and State v. Taccetta III. THE CASE FOR REINSTATING THE PLEA A. Reinstating the Plea, with No Option for a New Trial B. Reinstating the Plea, with the Option for a New Trial C. Reinstating the Plea Is Often Impossible and Violates Several Constitutional Principles IV. TURNING BACK THE CLOCK: A NEW TRIAL TO BALANCE PREJUDICE AGAINST COMPETING INTERESTS A. State and Federal Decisions that Have Embraced the Retrial Remedy B. The Right Claimed Here Is Not the Right to a Plea Bargain, but Rather the Procedural Right To Be Effectively Represented During Plea Negotiations C. Disallowing Defendants, Who at One Point May Have Declared Their Innocence, from Later Claiming that They Would Have Accepted a Plea Is an Unworkable Rule V. INEFFECTIVE ASSISTANCE OF COUNSEL DURING PLEA BARGAINING IS A STRUCTURAL ERROR IN THE TRIAL PROCESS ITSELF, WHICH REQUIRES AN AUTOMATIC REVERSAL AND RETRIAL A. The Current Framework for Determining When an Error Is Structural or Trial Error B. Applying the Fulminante Test to Ineffective Assistance of Counsel During Plea Bargaining C. The "No Harm, No Foul" Decisions Adopt a Flawed Results-Oriented Approach CONCLUSION INTRODUCTION

A bank is robbed, and the police accuse two brothers of the heist. The older brother is arrested for the robbery itself, while his younger brother is arrested for aiding and abetting. They are charged separately, and each hires his own attorney. Given the mountain of evidence against them, they are both eager to begin plea negotiations, and the State offers both brothers the same deal: ten years, if they plead guilty to their respective charges.

The younger brother's attorney erroneously advises his client that he faces a maximum sentence of fifteen years for aiding and abetting a bank robbery, five more than the plea offer, if he is found guilty at trial. Pursuant to his attorney's advice, the younger brother accepts the offer, pleads guilty, and waives his right to trial when, in fact, ten years is the maximum sentence that the younger brother faced for aiding and abetting the robber. But for the attorney's deficient counsel, the younger brother would have proceeded to trial and risked nothing. Had he been convicted he would have received a sentence no worse than the plea bargain.

The older brother's counsel is also deficient, but in a different way. His attorney misreads the relevant criminal statute and advises his client that ten years is the maximum sentence that the older brother faces for bank robbery. Actually, the older brother faces a maximum sentence of twenty-five years for the bank robbery. Relying on his attorney's erroneous advice, this brother rejects the offer, pleads not guilty, and proceeds to trial, at which he is found guilty. Pursuant to his conviction, he is given the maximum sentence--more than double the original plea offer. But for the attorney's deficient counsel, the older brother would have accepted the offer of ten years, pied guilty, and waived his right to trial. Instead, he risked fifteen additional years in prison for a slim chance at acquittal.

Both brothers immediately challenge their convictions based on ineffective assistance of counsel because each attorney committed an error when calculating his or her respective client's sentence exposure. But what is the remedy for each? The younger brother's remedy is clear: he waived his right to trial because of defective counsel, and so a court would simply vacate his conviction and restore his rights by ordering a new trial. (1) But what about his older brother? Although the older brother also received ineffective assistance of counsel during plea bargaining, he received a fair trial. Ordering a new trial to replace the fair proceeding that just took place appears both inappropriate and redundant. But how else should a court remedy the older brother's ineffective assistance of counsel, if at all?

This Note discusses the proper remedy for a criminal defendant who, as a result of ineffective assistance of counsel, rejects a favorable plea bargain, proceeds to trial, and ultimately receives a higher sentence than he would have under the plea.

When a defendant receives ineffective assistance of counsel during plea bargaining, he almost always pleads guilty, waiving his right to trial. There are, however, occasions when a defendant proceeds to trial although in reality his best option would have been to plead guilty pursuant to a plea arrangement. (2) Does a defendant suffer remedial prejudice if he is denied effective assistance of counsel during plea bargaining but subsequently receives a fair trial? Courts have answered this question in three ways. The first two ways involve courts finding that the defendant does suffer prejudice and therefore deserves a remedy: one orders another trial, (3) while the second orders specific performance of the plea bargain. (4) Unlike the first two, the third approach finds no prejudice, orders no remedy, and simply affirms the conviction and sentence. (5) Various state and federal courts have adopted each path. In 2008, the United States Supreme Court was finally set to decide this question in Arave v. Hoffman, (6) before both parties withdrew the case.7 Given its interest in resolving this nationwide split, the Supreme Court will likely answer this question soon. This Note seeks to inform that decision.

Despite the extensive and conflicting case law, as well as the Supreme Court's demonstrated interest, academic literature has not kept pace. Until recently the last scholarly piece to discuss this topic was a student note from 1992, published in the California Western Law Review. (8) The author concluded that defendants suffer prejudice in these cases and that the only appropriate remedy is to order specific performance of the plea bargain. (9) Unfortunately, that piece would not help a court resolve this issue today, as it does not discuss federal and state case law since 1992. (10) Second, it concludes that specific performance of the plea bargain is appropriate without addressing the other constitutional principles implicated by that remedy, such as double jeopardy, (11) the abstention principle, (12) and the separation of powers. (13) A proliferating number of student notes has appeared in the last few years, but none discusses in detail how to remedy the error, while some argue against any remedy at all. (14)

To close this gap, this Note discusses the three paths and the case law associated with each. For instance, even among states that have ordered a new trial, those states have done so for different reasons. (15) Several federal court decisions have played out the same way. (16) But although these cases have applied identical remedies, they have not followed the same line of argument. Similarly, the courts that have ordered specific performance of the plea bargain have done so for different reasons, (17) and those that have ordered no remedy at all have also differed in their analyses. (18)

The conflicting judicial decisions discussed in this review demonstrate that none of these approaches is perfect. Decisions that order no remedy ignore process so long as the "correct result" is achieved. Although specific performance of the plea offer is the most intuitive remedy, it is also the most complex; expired deals are sometimes impossible to enforce because of changed circumstances. Even if the deal is still possible, it is unclear whether a member of the judicial branch can order a member of the executive branch to reoffer a deal without violating the separation of powers. The new trial remedy is redundant and risks awarding the defendant a windfall chance at acquittal.

This Note proceeds as follows. Part I presents an overview of the right to counsel during plea bargaining. Part II discusses the difficulty of determining prejudice and the "no remedy" approach. Part III then outlines those decisions that favor specific performance of the plea and the problems associated with this remedy.

This Note then offers a new way forward. Part IV examines those decisions that have ordered a retrial, explaining why this remedy is the most appropriate solution. The Part then responds to the leading cases that support granting no remedy. This response is unique in two ways. First, this Note shows that the courts that have denied a remedy for this constitutional violation have relied upon several arguments that have never been directly answered, either in judicial opinions or in academic articles. (19) Second, Part V of this Note argues that the courts that find no prejudice because the ensuing trial was "fair" obscure the dichotomy between trial errors and structural errors. (20) Ineffective assistance of counsel during plea bargaining that leads to a defendant proceeding to trial is a structural error because it defies analysis by traditional harmless error standards and affects "the framework within which the trial proceeds," (21) or even "whether it proceeds at all." (22) Because structural errors must be automatically reversed, and given the logistical hurdles involved in reinstating the original plea, this Note concludes that the only workable solution is to order a new trial.

1. OVERVIEW OF THE RIGHT TO COUNSEL DURING PLEA BARGAINING

   When considering claims of ineffective assistance of counsel, state and federal courts must adhere to the standards set forth in Strickland v. Washington, which require that defense counsel perform in such a way as will render the trial a reliable adversarial testing process. (23) To succeed on a Sixth Amendment claim of ineffective assistance of counsel, a defendant must satisfy both prongs of the Strickland test. A defendant first must demonstrate that defense counsel's...