In a pair of cases decided in 2012, the Supreme Court held that the Sixth Amendment guarantees criminal defendants a right to effective assistance of counsel during plea negotiations. In Missouri v. Frye, the Court held that “as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” 132 S. Ct. 1399, 1408 (2012). In Lafler v. Cooper, the Court held that when a defendant rejects a plea deal on the advice of counsel, that rejection will not be prejudicial unless there is a showing of “a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.” 132 S. Ct. 1376, 1385 (2012).

In a recent published opinion in United States v. Valmont, 73 M.J. 923, No. 20110644 (A. Ct. Crim. App. Oct. 22, 2014) (link to slip op.), the Army CCA considers a claim of ineffective assistance of counsel (IAC) in the plea negotiation process. The appellant was convicted contrary to his pleas of not guilty, by a general court-martial composed of members with enlisted representation, of premeditated murder in violation of Article 118(a). He was sentenced to confinement for life without the possibility of parole, reduction to E-1, total forfeitures, and a dishonorable discharge. The convening authority approved the sentence as adjudged.

The IAC claim is primarily an assertion that the appellant’s five defense counsel (two military, three civilians) failed to communicate to him plea offers from the Government that would have limited his confinement to a term of years. The court’s recitation of facts is four pages of dense he-said / they-said claims, but it’s clear that the appellant rejected an initial offer that would have limited his confinement to 50 years, that he wanted (but never formally proposed) a deal that limited his confinement to no more than 30 or 40 years, and that there were ongoing informal discussions by email between the appellant’s civilian defense counsel and the trial counsel.

The CCA rejects the IAC claim. This rejection is mostly based on the informality of the discussions between the trial counsel and the defense, noting that Frye only requires communication of formal plea deals.

The CCA’s analysis concludes:

The relatively recent Supreme Court decision in Missouri v. Frye, 132 S. Ct. 1399 (2012), is particularly relevant to appellant’s case. In a 5-4 decision, the Supreme Court held that: “[A]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” Frye, 132 S. Ct. at 1408.

Therefore, appellant’s allegation of ineffective assistance of counsel (IAC) initially fails based on a lack of evidence to find the government made a formal plea offer. E-mails, to include those from government counsel, and statements from multiple defense counsel support a finding that government counsel only engaged in informal discussions with defense counsel concerning a possible PTA. It is also apparent that both defense and government counsel understood that any formal PTA would need to originate with appellant and would not be supported by the staff judge advocate or approved by the CA unless it contained no less than a 50-year limitation on confinement.

Slip op. at 12-13.

Notably, the court does not specifically consider the procedure established by R.C.M. 705(d) that separates the plea deal process into three phases: (1) negotiation, (2) formal submission, and (3) acceptance. Under this military-specific rule, it is the Defense that proposes formal plea deals:

After negotiation, if any, under subsection (d)(1) of this rule, if the accused elects to propose a pretrial agreement, the defense shall submit a written offer.

R.C.M. 705(d)(2) (emphasis added). Considering this, the appellant’s failure to actually submit a written offer to plead guilty in exchange for a lesser term of years is significant.

A separate but related issue is a dispute over whether the appellant’s counsel advised him of the impact of good time credit on his maximum sentence and the potential for parole under the 50-year plea offer. The CCA considers these factors in the context of Frye, but not in the context of Lafler:

In addition, even assuming these informal discussions could be construed as a formal plea offer, appellant concedes his original defense counsel, Mr. WC, discussed with him the possibility of entering into a PTA that included a 50-year limitation on confinement. Appellant’s allegation of IAC does not assert a lack of communication regarding potential plea deals, but rather contends he was not fully informed by Mr. WC on the impact of parole and “good time” on a 50-year sentence to confinement. An IAC finding in this case, when appellant admits he was informed about a potential plea deal but not about collateral parole matters, would necessitate extending Frye well beyond the scope of its narrow holding. Id.

However, this issue is itself mooted based on conversations Mr. MW and Mr. TB had with appellant wherein they discussed parole and “good time” in detail. Appellant has not refuted those accounts. As such, the record reflects appellant was on notice as to the “real time” associated with a 50-year confinement limitation.

Given there is no indication government counsel ever offered support for a PTA that included less than a 50-year confinement limitation, and no indication appellant ever intended to accept a PTA that included a 50-year limitation, the rest of appellant’s allegation concerning internal defense discussions including a 30 or 40 year confinement cap, is irrelevant per Frye. As such, pursuant to Strickland, we find appellant has not established a prima facie case of IAC because he has neither (1) established deficient performance by any of his counsel; nor (2) made a colorable facshowing of possible prejudice.

Slip op. at 13 (emphasis added). The CCA’s conclusion that the appellant was informed about the effect of good time credits and parole on a term of years sentence renders the rest of its analysis dicta, but I feel confident that erroneous advice regarding the actual amount of confinement likely to be served under a plea deal (resulting in that deal’s rejection by an accused) is a basis for relief under the Supreme Court’s holding in Lafler. I also question the CCA’s characterization of these matters as collateral, considering that the amount of confinement to be served is undoubtedly a more direct consequence of a plea than sex-offender registration. See United States v. Riley, 72  M.J. 115 (C.A.A.F. 2013) (CAAFlog case page) (finding sex offender registration to be a direct, not collateral, consequences of a guilty plea).

Notably, the CCA also considers the appellant’s claim that two of his civilian defense counsel erroneously advised him that “if I pled guilty to murder, the statutory minimum was confinement for life with eligibility for parole. Thus, the only deal they could even approach the government with was life with the possibility of parole.” Slip op. at 14. While the CCA rejects the appellant’s claim that his counsel ever gave him this erroneous advice (noting that counsel had negotiated for a term-of-years plea), the CCA acknowledges that this erroneous advice could constitute IAC:

This erroneous advice concerning the unavailability of a PTA that included a term of years to confinement was allegedly a major factor in appellant’s decision not to agree to a PTA and represented deficient performance on the part of his counsel. “[W]here the accused has been grossly misled by a miscalculation or erroneous sentence estimation by defense counsel, such conduct may constitute [IAC].” United States v. St. Blanc, 70 M.J. 424, 428 (C.A.A.F. 2012) (internal citations omitted).

Slip op. at 14. In St. Blanc, CAAF considered a decision to elect trial by judge alone that was partially based on an erroneous maximum sentence computation for possession of what appears to be child pornography. Even though CAAF rejected that appellant’s claim that the erroneous advice rendered his forum selection unknowing or involuntary, the court held that an appellant “should be correctly informed by his defense counsel of the maximum punishment he faces before making fundamental decisions in his case.” St. Blanc, 70 M.J. at 428, slip op. at 12. So even without the Supreme Court’s decision in Lafler, the appellant’s claim in Valmont that he was not informed about the effect of good time and parole on the potential plea could be the basis for an IAC finding under the principle of informed decision-making articulated in St. Blanc.

Nevertheless, there are various aspects of the court-martial system that limit the application of the Supreme Court’s holding in Frye. For instance, while defense counsel typically negotiate with trial counsel or the staff judge advocate, it is the convening authority who must approve any plea deal. Moreover, the trial counsel and the convening authority are very separate – there is no privilege for communications between trial counsel and convening authority, and the convening authority is a “quasi-judicial decision maker.” United States v. Nealy, 71 M.J. 73, 78 (C.A.A.F. 2012) (CAAFlog case page) (Baker, C.J. concurring). This makes “formal offers from the prosecution,” Frye, 132 S. Ct. at 1408, something of a misnomer for court-martial plea discussions. A trial counsel (that is, the prosecution) may support or oppose a proposed plea agreement, but the commander will make the final decision.

The Army CCA’s decision in Valmont is the closest I’ve seen a military court get to considering this significant difference in the way plea agreements are reached in the military and civil justice systems.

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