Keys to the South Carolina Plea Process: Timely Communication, Accurate Information and Sound Documentation, 13 SCBJ, SC Lawyer, July 2013, #1

Author:David Aylor

Keys to the South Carolina Plea Process: Timely Communication, Accurate Information and Sound Documentation

Vol. 25 No. 1 Pg. 26

South Carolina Bar Journal

July, 2013

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 David Aylor

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0On its face, a “plea” in criminal court is a fairly simple court process. More than 90 percent of all criminal cases in both federal and state courts are resolved by the accused accepting a plea.1 In South Carolina, thousands of pleas are entered into every year across the state, bringing finality to pending cases for the State, defendant and victims. The plea method is one of the most important functions within the criminal justice system. It conserves “valuable prosecutorial resources” while providing defendants the opportunity “to admit their crimes and receive more favorable terms at sentencing.”2

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0However, issues often develop before and after a defendant accepts or rejects a plea offer. The U.S. Supreme Court has left no doubt that plea negotiations are important elements of client representation for purposes of the Sixth Amendment right to effective counsel.3 This article discusses some of the common pitfalls associated with plea deals and suggests measures that could reduce the risk of pleas being overturned.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Timely communication

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0A simple but fundamental step of any plea deal is communication of the plea offer from defense counsel to his or her client. Defense counsel is ethically obligated to “promptly inform the client” of the substance of a proffered plea bargain “unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer.”4 Moreover, the failure to communicate a plea offer could affect the validity of a sentence from a subsequent plea or trial.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In Missouri v. Frye, the U.S. Supreme Court held that “as a general rule, defense counsel has the duty to communicate formal prosecution offers to accept a plea on terms and conditions that may be favorable to the accused.”5 Frye was a post-conviction relief action from a criminal defendant who had been charged with a felony traffic offense carrying a maximum four- year prison term. The prosecutor made two offers, including an offer to reduce the charge to a misdemeanor and recommend a 90-day sentence. The defendant’s attorney did not advise the defendant of these offers and they expired. The defendant subsequently pled guilty and the prosecutor recommended a three-year sentence, which the plea judge accepted.6 The Court found that the defense attorney’s failure to inform his client of the written plea offer was deficient under the Sixth Amendment.7

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Frye Court did not make a finding as to whether the defendant had shown prejudice as required under the standard set forth in Strickland v. Washington for showing a Sixth Amendment violation.8 In Strickland v. Washington, the Supreme Court articulated a two-part test for establishing ineffective assistance of counsel; the post-conviction relief applicant has the burden of showing (1) deficient conduct by counsel, and (2) resulting prejudice.9 The Frye Court found that there would be no prejudice if the prosecutor could have canceled the plea agreement, unless the defendant shows a reasonable probability the prosecutor would have adhered to the agreement. The Court likewise stated there would be no prejudice if the trial court could have refused to accept the plea agreement, unless the defendant shows a reasonable probability the trial court would have accepted the plea. It remanded to the Missouri Court of Appeals to consider those state law questions.10

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0While the Frye Court did not directly decide the prejudice issue, the S.C. Supreme Court held in Davie v. State that the petitioner was prejudiced by his plea counsel’s deficient performance in failing to convey a 15-year plea offer from the solicitor.11 The petitioner received a sentence of 27 years and only learned of the 15-year plea offer two years after he pled guilty. The Court concluded that the petitioner had established prejudiced because 1) the solicitor and plea counsel both acknowledged the original plea offer, 2) plea counsel admitted that he failed to communicate the offer to petitioner, 3) plea counsel and the petitioner testified that he would have accepted the plea offer had it been communicated to him, and 4) the petitioner would have received a significantly lower sentence had he accepted the original offer.12 The Court found the petitioner was entitled to a new sentencing hearing with the limitation that the petitioner’s sentence would not exceed 27 years.13

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0It remains to be seen what impact Frye has on the Davie Court’s conclusion of prejudice. Regardless, these cases illustrate that the simple step of communicating a plea offer to a client can mean the difference between a plea being finalized and lengthy post-conviction relief proceedings. The breakdown in communication of plea offers to the plea defendant is also a major concern for solicitors who must decide whether to re-extend an expired offer or proceed to trial with the risk that a defendant’s sentence may be overturned because his attorney failed to relay the offer.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Court’s decision in Frye highlighted a crucial step defense counsel must take when competently representing a defendant through the developments of a plea proposal. Many have called for a court system in South Carolina that recognizes a reward for acceptance of responsibility and provides an incentive for defendants to get into court early. If an early plea program were established, defense counsel’s responsibility to timely communicate plea offers would increase.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Proper information

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0To be valid, a plea must be entered into knowingly, voluntarily and intelligently.14 Communicating the proper information to the defendant is critical to an intelligent plea. When counsel advises his client as to any plea offers “on the table, ” his or her guidance and legal conclusions must be...

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