Missouri v. Frye (10-444)

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LII note: The U.S. Supreme Court has now decided Missouri v. Frye (10-444).

Oral argument: 
October 31, 2011

Oral argument: Oct. 31, 2011

Appealed from: Missouri Court of Appeals, Western District (Sept. 27, 2010)

After being charged with a felony for driving with a revoked license, Respondent Galin E. Frye was offered two plea bargain options: one, plead guilty to the felony with a recommended three years of imprisonment, or two, plead guilty to a misdemeanor with a recommended 90 days in jail. However, Frye’s counsel never informed him of the plea options, and he subsequently pled guilty to the original felony charge. Frye now appeals, arguing that his counsel’s failure to inform him of the plea bargain violated his Sixth Amendment right to effective assistance of counsel. The State of Missouri, as Petitioner, argues that Frye’s situation falls outside of Sixth Amendment protections, and that, even if he was wronged, there is no available remedy. The Supreme Court’s decision in this case will determine whether courts can relieve defendants convicted pursuant to constitutionally adequate procedures if their lawyer made an error during plea negotiations.

1. Contrary to the holding in Hill v. Lockhart, 474 U.S. 52 (1985) - which held that a defendant must allege that, but for counsel's error, the defendant would have gone to trial - can a defendant who validly pleads guilty successfully assert a claim of ineffective assistance of counsel by alleging instead that, but for counsel's error in failing to communicate a plea offer, he would have pleaded guilty with more favorable terms?

2. What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures?


Whether a criminal defendant who was not informed of all of his plea bargain options had his Sixth Amendment right to effective assistance of counsel violated, and whether there is a remedy available for such an individual if the rest of his trial was free of procedural or substantive violations.


The State of Missouri charged Galin E. Frye for driving with a revoked license. While the offense is usually a misdemeanor, Missouri charged Frye with a felony because Frye had three prior convictions for the same offense.

Prior to Frye’s preliminary hearing, Missouri offered Frye’s attorney a plea bargain, giving Frye two options if he agreed to plead guilty. . Under the first option, Frye could plead guilty to a felony charge. The prosecutor would then recommend three years of imprisonment and defer to the court on the issue of probation, with the condition that Frye serve 10 days of “shock time” in the county jail. Under the second option, Missouri would lower the charge to a misdemeanor, if Frye pled guilty to the lesser charge. The prosecutor would then recommend that Frye serve 90 days in the county jail.

However, Frye’s trial counsel never notified him of the State of Missouri’s offer. Only forty-five days after Missouri extended its offer, Frye drove again without a license and received a misdemeanor charge. By the time of Frye’s preliminary hearing, the offer had expired. Still unaware of the lapsed offer, Frye pled guilty to the original felony charge. Missouri then recommended the same sentence it offered under option one of its initial plea offer. The court rejected the prosecutor’s recommendation and sentenced Frye to three years of imprisonment.

While in prison, Frye learned about the lapsed plea offer and filed a motion to vacate his conviction, alleging that he had been denied effective assistance of counsel because his attorney failed to inform him of the plea offer. The trial court denied Frye’s motion, holding that Frye did not establish prejudice because he did not allege that he would have gone to trial if his attorney had informed him of Missouri’s plea offer.

Frye appealed the decision and the Missouri Court of Appeals reversed, holding that Frye could establish prejudice if he demonstrated that there was a reasonable probability of a different outcome had he known of Missouri’s plea offer. According to the Missouri Court of Appeals, Frye’s outcome would have differed because he would have pled guilty to the misdemeanor charge with a maximum one year sentence, as opposed to the three-year prison sentence he actually received for pleading guilty to a felony. However, the Missouri Court of Appeals noted that it could not order that Frye be charged under the lapsed plea offer and remanded, essentially giving Frye the option to re-enter a guilty plea to the felony charge or stand trial.

On September 27, 2010, Missouri petitioned the Supreme Court for a writ of certiorari to address the question whether, in light of its decision in Hill v. Lockhart, defendant counsel’s failure to communicate a plea offer violated Frye’s Sixth Amendment rights. . On January 7, 2011, the Supreme Court granted certiorari and directed the parties to also discuss what remedies should be provided to a defendant who successfully proves ineffective assistance of counsel for failure to communicate a plea offer, where the defendant later pled guilty to less favorable terms.


Petitioner Missouri argues that defendants alleging ineffective assistance of counsel for failure to communicate a plea offer should not be entitled to any remedies, if the defendant later pled guilty to less favorable terms, where the defendant had access to a constitutionally adequate proceeding. On other hand, Respondent Frye argues that the defendant should be entitled to the benefit of the original offer: subsequent proceedings cannot undo the harm suffered, and the traditional remedy for ineffective counsel is to put the defendant in the same position he would have been in had the violation not occurred.

Plea Bargain Error

Missouri argues that Frye’s proposed rule encourages attorneys to strategically use plea offers as insurance policies against unpredictable trial results. Missouricontends that,under Frye’s rule, an attorney could allow a plea offer to lapse without communicating it to the defendant, advising the defendant to stand trial in hopes of an acquittal. If convicted, the defendant could then move to vacate on the basis of ineffective assistance of counsel, requesting the benefit of the lapsed offer. Missouri asserts that prosecutors’ willingness to plea bargain will diminish if the state bears the burden for defense attorney error or fraud. Therefore, Missouri suggests that, in order to maintain a functioning plea bargaining system under Frye’s proposal, the judicial system would be burdened with supervising plea negotiations to ensure that defense attorneys have fully communicated plea offers to defendants.

Frye counters that defense attorneys will not behave unethically. The National Association of Criminal Defense Lawyers contends that attorneys will not use plea offers as insurance policies, since the possible consequences are disbarment, malpractice suits and disciplinary proceedings. The Constitution Project notes that public defense underfunding results in overwhelming burdens on public defenders, preventing them from performing basic duties, such as consulting with the defendant on important decisions, and causing them to pressure defendants into accepting guilty pleas to expedite caseloads. The Constitution Project claims that indigent defendants would suffer disproportionately under Missouri’s proposed rule, since they are represented by public defenders and are statistically more likely to accept plea offers.

Finality of Convictions

Missouri argues that Frye’s rule will undermine the concept of conviction finality, inundating the judicial system with post-conviction litigation. Moreover, Missouri contends that exceptions to conviction finality undermine societal confidence in the integrity of judicial procedures. Missouri also points out that maintaining conviction finality is particularly important in the context of guilty pleas; more than 95% of Missouri’s felony convictions in 2010 were resolved by guilty pleas.

In contrast, Frye argues that his rule will not undermine the concept of conviction finality, or inundate the judicial system with post-conviction litigation. Frye asserts that an attorney’s failure to communicate a plea offer is a very rare occurrence. Frye also argues that trial courts use the high threshold requirements set by the Supreme Court’s Strickland test to eliminate hollow claims. Frye points out that courts have been applying the Stickland test to ineffective counsel claims for over twenty-seven years, and are already immersed in whatever flood of post-conviction litigation Missouri fears.

Separation of Powers

The United States argues that Frye’s proposal would improperly grant to the judiciary the executive's authority to determine whether to prosecute a case; giving Frye the benefit of the lapsed plea offer would require dismissing an old count and charging a new one. . The United States notes that, while courts may reject a plea agreement, courts cannot compel a prosecutor to plea bargain.

However, Frye argues that the judiciary would not encroach on the executive branch’s exclusive authority because a court would simply be remedying the harm suffered from a constitutional violation. Frye points out that the court could opt to dismiss the charges against the defendant unless the prosecutor chooses to extend the lapsed offer.


Under the Sixth Amendment of the U.S. Constitution, a criminal defendant is guaranteed the right to a fair trial. This protection has been extended to the plea process, where a criminal defendant is entitled to effective assistance of counsel in order to protect him during “critical confrontations” with the prosecution. ; Whether Respondent Frye’s Sixth Amendment rights were infringed depends on the interpretation of both Strickland and Hill, and on whether the plea negotiations constituted a “critical confrontation.”

Does Hill v. Lockhart Apply?

In reversing the trial court’s decision, the Missouri Court of Appeals relied on the two-pronged test set out in Strickland v. Washington. Under the Strickland test, ineffective counsel is established when (1) the representation fell below the objective standard of “reasonableness,” and (2) it can be established that, but for these errors, the result of the proceeding would have been different. Determining that Frye would have selected the better plea offer, but for his attorney withholding information, the court determined that the Strickland standard had been satisfied.

In reaching this conclusion, however, the Missouri Court of Appeals distinguished Hill v. Lockhart, a case used by the trial court in finding no prejudice. According to Petitioner Missouri, Hill alters the prejudice prong of the Strickland test: ineffective counsel is established when a party shows that, but for the ineffective counsel, the individual would not have pleaded guilty and would instead have gone to trial. However, the Court of Appeals held that the trial court erred in interpreting Hill to modify the Strickland test in all cases, deciding that prejudice could be established in other ways.

Frye argues that the Court of Appeals correctly interpreted Hill because, but for his counsel’s error, Frye would not have chosen to go to trial, but would have selected the better plea offer, thus creating a situation outside the bounds of Hill. , Frye argues that the Hill standard’s application in “trial-based” situations leaves room for other non-“trial-based” situations (such as plea negotiations), and that a close reading of Hill implies that the Supreme Court recognized that certain ineffective assistance of counsel claims would not be covered. Frye further supports his argument by examining the seemingly open-ended wording of Hill, which suggests that there are other areas that are not covered by its narrow holding.

In contrast, Missouri maintains that the underlying aim of both Strickland and Hill is to protect a defendant’s right to a fair trial: the purpose of Strickland was to determine whether errors affected the fact-finder’s ability to rely on the record, while the purpose of Hill was to ensure that the defendant wasn’t deprived of the right to trial in the first place. . Thus, Missouri argues that losing a favorable plea bargain offer is not a situation covered by Strickland and Hill, since losing the offer did not infringe on Frye’s right to a fair trial. Furthermore, Missouri argues that Frye mischaracterizes Hill’s interpretation of prejudice as only applying to “trial-based” errors when, in fact, Hill specifically addressed alleged errors at the pleading stage and must therefore apply to both “trial-based” and “non-trial-based” errors alike. .

What Constitutes a “Critical Confrontation”?

The parties disagree about whether the negotiation stage of a plea bargain constitutes a “critical confrontation” protected by the Sixth Amendment. Missouri argues that courts have never found any constitutional significance attached to plea bargains, and that protection should not be extended to establish a new right to receive a favorable sentence. Indeed, Missouri emphasizes the Supreme Court’s decision in Mabry v. Johnson, where the Court concluded that “[a] plea bargain standing alone is without constitutionally significance.” After an offer is made to a defendant, a prosecutor may revoke the offer at any time, even after a defendant has accepted it. Moreover, even if a defendant does agree to a plea offer, Missouri courts may exercise discretion in deciding whether to abide by the terms of the deal, and, as such, sentencing is limited only by statutes relevant to the pled crime. Thus, Missouri argues that there cannot be a protected right to a plea deal when neither prosecutors nor courts are bound to honor them.

Countering Missouri’s arguments, Frye contends that Sixth Amendment protections extend to all critical stages of prosecution, including plea negotiations. Specifically, Frye argues that Missouri has incorrectly focused on the “guilty plea” and its implications, rather than on the protection necessary during the “plea negotiation process.” Frye supports his claim by analyzing various Supreme Court cases stating that pretrial plea negotiations are “critical” phases of the criminal process, based on the level of expertise and complexity involved in negotiations. ; Frye argues that, despite Missouri’s arguments, it is irrelevant whether a right to plea bargain exists in the first place. Once negotiations begin, Frye contends that a defendant has the right to effective counsel. In this case, counsel engaged in such negotiations with Missouri, triggering Frye’s Sixth Amendment protections.

What is the Proper Remedy?

Even if the Court determines that the error at the plea bargain stage constituted ineffective assistance of counsel, Missouri argues that, because Frye received a trial with no other constitutional violations, Frye has already received the appropriate remedy. First, Missouri contends that the standard remedy for ineffective counsel is grant of a new trial, not, as Frye argues, what might have been had counsel not erred. Second, in accordance with the Court’s ruling in Tollett v. Henderson, Missouri argues that further remedy would be inappropriate, since Frye’s guilty plea constituted a “break in the chain of events” and bars claims related to deprivations that occurred before the plea. According to Missouri, Frye understood the consequences of his guilty plea and was not induced to enter his plea; there was no break in the chain of events depriving him of the option to bring up his current claim.

In response, Frye argues that the proper remedy would be to allow him to select the better plea bargain offered by Missouri. According to Frye, an adequate remedy for a constitutional violation must return the individual to the status he occupied prior to the violation. Frye argues that allowing him to select the better offer would properly correct counsel’s error. Frye further suggests that granting this remedy would be adequate because it would still allow the ruling court to decide whether to accept the terms of the offer. Frye also rejects Missouri’s assertion that his prior guilty plea bars the current suit. Instead, Frye argues that pleading guilty does not vitiate ineffective counsel and that Missouri’s argument—that Frye acknowledged the rights he was waiving and the consequences of doing so—would lead to the conclusion that every guilty plea is necessarily valid. Frye also notes that guilty pleas are often set aside, thus calling Missouri’s legal theory into question.

However, Missouri counters Frye’s suggested remedy by arguing that allowing him to select the better offer would put Frye in a better position than he would have been in but for counsel’s error. Missouri focuses on the discretion of prosecutors to withdraw the offer at any time. Missouri argues that Frye would be put in a better position than he otherwise would be in, even in the absence of any constitutional violation, by being allowed to select an offer that might not have remained open.


In this case, the Supreme Court considers whether the Sixth Amendment’s right to effective assistance of counsel protects a criminal defendant whose attorney has not communicated the available plea bargain options, and the appropriate remedy for such an error. Respondent Frye argues that his counsel’s failure to inform him of his plea offer meets the Court’s Strickland test for ineffective assistance claims: it was unreasonable and it prejudiced him. However, the State of Missouri maintains that Frye fails the prejudice prong because, under Hill, prejudice requires a showing that, in the absence of attorney error, Frye would have pled not guilty and gone to trial.


Prepared by: Heather Byrne and Judah Druck

Edited by: Colin O'Regan


Edited by