2. The court acknowledged that it is difficult to define the scope of defense
counsel’s duties concerning plea bargaining. It was unnecessary to resolve that
issue here, however, where defense counsel failed to advise defendant of two plea
offers, one of which would have allowed him to plead to a lesser charge and receive
a lower sentence than was ultimately imposed on his open plea to the original
charge. “[A]s a general rule, defense counsel has a duty to communicate formal
offers from the prosecution to accept a plea on terms and conditions that may be
favorable to the accused.”
Because counsel failed to communicate a more favorable plea offer until
after it had expired, his representation was objectively unreasonable under the
first prong of Strickland. The court added that to prevent frivolous or fabricated
claims that more advantageous plea offers were made but not communicated to
defendants, the prosecution and trial courts may adopt measures such as
requiring that plea offers be in writing, that the negotiation process be
documented, and that formal offers be made part of the record in order to ensure
that the defendant has been adequately advised.
3. To establish prejudice under the second prong of Strickland, a defendant
who claims that a plea offer lapsed or was rejected because of counsel’s deficient
performance must demonstrate a reasonable probability that: (1) had counsel
been effective, defendant would have accepted a plea offer which would have
resulted in a more favorable outcome, and (2) the plea would have been entered
without the prosecution cancelling the offer or the trial court refusing to accept
the plea. Where defense counsel did not inform defendant of two plea offers before
they expired, one of the plea offers would have allowed defendant to plead to a
misdemeanor and serve a 90-day sentence, and defendant subsequently entered
an open plea to the original felony charge and received a three-year sentence,
defendant made an adequate showing that he would have accepted the plea offer
had he been made aware of it. The state court erred, however, by failing to require
defendant to show that the prosecution would have gone through with the plea
and the judge would have accepted it. Because these questions are matters of
state law, the court remanded the cause to Missouri courts to determine whether:
(1) either the prosecution or trial court is authorized under Missouri law to refuse
to accept a defendant’s attempt to accept a plea offer, and (2) there is a reasonable
probability the prosecutor and judge would have adhered to the offer in this case.
87
