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been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms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, __ M.J. __, 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.