Missouri v. Frye

(Slip Opinion) OCTOBER TERM, 2011 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

MISSOURI v. FRYE

CERTIORARI TO THE COURT OF APPEALS OF MISSOURI, WEST-

ERN DISTRICT

No. 10–444. Argued October 31, 2011—Decided March 21, 2012

Respondent Frye was charged with driving with a revoked license. Be-

cause he had been convicted of the same offense three times before,

he was charged, under Missouri law, with a felony carrying a maxi-

mum 4-year prison term. The prosecutor sent Frye’s counsel a letter,

offering two possible plea bargains, including an offer to reduce the

charge to a misdemeanor and to recommend, with a guilty plea, a 90-

day sentence. Counsel did not convey the offers to Frye, and they ex-

pired. Less than a week before Frye’s preliminary hearing, he was

again arrested for driving with a revoked license. He subsequently

pleaded guilty with no underlying plea agreement and was sentenced

to three years in prison. Seeking postconviction relief in state court,

he alleged his counsel’s failure to inform him of the earlier plea offers

denied him the effective assistance of counsel, and he testified that

he would have pleaded guilty to the misdemeanor had he known of

the offer. The court denied his motion, but the Missouri appellate

court reversed, holding that Frye met both of the requirements for

showing a Sixth Amendment violation under Strickland v. Washing-

ton, 466 U. S. 668. Specifically, the court found that defense counsel

had been ineffective in not communicating the plea offers to Frye and

concluded that Frye had shown that counsel’s deficient performance

caused him prejudice because he pleaded guilty to a felony instead of

a misdemeanor.

Held:

1. The Sixth Amendment right to effective assistance of counsel ex-

tends to the consideration of plea offers that lapse or are rejected.

That right applies to “all ‘critical’ stages of the criminal proceedings.”

Montejo v. Louisiana, 556 U. S. 778, 786. Hill v. Lockhart, 474 U. S.

52, established that Strickland’s two-part test governs ineffective-

2 MISSOURI v. FRYE

Syllabus

assistance claims in the plea bargain context. There, the defendant

had alleged that his counsel had given him inadequate advice about

his plea, but he failed to show that he would have proceeded to trial

had he received the proper advice. 474 U. S., at 60. In Padilla v.

Kentucky, 559 U. S. ___, where a plea offer was set aside because

counsel had misinformed the defendant of its immigration conse-

quences, this Court made clear that “the negotiation of a plea bargain

is a critical” stage for ineffective-assistance purposes, id., at ___, and

rejected the argument made by the State in this case that a knowing

and voluntary plea supersedes defense counsel’s errors. The State

attempts to distinguish Hill and Padilla from the instant case. It

notes that Hill and Padilla concerned whether there was ineffective

assistance leading to acceptance of a plea offer, a process involving a

formal court appearance with the defendant and all counsel present,

while no formal court proceedings are involved when a plea offer has

lapsed or been rejected; and it insists that there is no right to receive

a plea offer in any event. Thus, the State contends, it is unfair to

subject it to the consequences of defense counsel’s inadequacies when

the opportunities for a full and fair trial, or for a later guilty plea al-

beit on less favorable terms, are preserved. While these contentions

are neither illogical nor without some persuasive force, they do not

suffice to overcome the simple reality that 97 percent of federal con-

victions and 94 percent of state convictions are the result of guilty

pleas. Plea bargains have become so central to today’s criminal jus-

tice system that defense counsel must meet responsibilities in the

plea bargain process to render the adequate assistance of counsel

that the Sixth Amendment requires at critical stages of the criminal

process. Pp. 3–8.

2. 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. Any exceptions to this rule

need not be addressed here, for the offer was a formal one with a

fixed expiration date. Standards for prompt communication and con-

sultation recommended by the American Bar Association and adopt-

ed by numerous state and federal courts, though not determinative,

serve as important guides. The prosecution and trial courts may

adopt measures to help ensure against late, frivolous, or fabricated

claims. First, a formal offer’s terms and processing can be document-

ed. Second, States may require that all offers be in writing. Third,

formal offers can be made part of the record at any subsequent plea

proceeding or before trial to ensure that a defendant has been fully

advised before the later proceedings commence. Here, as the result of

counsel’s deficient performance, the offers lapsed. Under Strickland,

the question then becomes what, if any, prejudice resulted from the

Cite as: 566 U. S. ____ (2012) 3

Syllabus

breach of duty. Pp. 8–11.

3. To show prejudice where a plea offer has lapsed or been rejected

because of counsel’s deficient performance, defendants must demon-

strate a reasonable probability both that they would have accepted

the more favorable plea offer had they been afforded effective assis-

tance of counsel and that the plea would have been entered without

the prosecution’s canceling it or the trial court’s refusing to accept it,

if they had the authority to exercise that discretion under state law.

This application of Strickland to uncommunicated, lapsed pleas does

not alter Hill’s standard, which requires a defendant complaining

that ineffective assistance led him to accept a plea offer instead of go-

ing to trial to show “a reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty and would have insisted on

going to trial.” 474 U. S., at 59. Hill correctly applies in the context

in which it arose, but it does not provide the sole means for demon-

strating prejudice arising from counsel’s deficient performance dur-

ing plea negotiations. Because Frye argues that with effective assis-

tance he would have accepted an earlier plea offer as opposed to

entering an open plea, Strickland’s inquiry into whether “the result

of the proceeding would have been different,” 466 U. S., at 694, re-

quires looking not at whether the defendant would have proceeded to

trial but at whether he would have accepted the earlier plea offer.

He must also show that, if the prosecution had the discretion to can-

cel the plea agreement or the trial court had the discretion to refuse

to accept it, there is a reasonable probability neither the prosecution

nor the trial court would have prevented the offer from being accept-

ed or implemented. This further showing is particularly important

because a defendant has no right to be offered a plea, see Weatherford

v. Bursey, 429 U. S. 545, 561, nor a federal right that the judge accept

it, Santobello v. New York, 404 U. S. 257, 262. Missouri, among other

States, appears to give the prosecution some discretion to cancel a

plea agreement; and the Federal Rules of Criminal Procedure, some

state rules, including Missouri’s, and this Court’s precedents give tri-

al courts some leeway to accept or reject plea agreements. Pp. 11–13.

4. Applying these standards here, the Missouri court correctly con-

cluded that counsel’s failure to inform Frye of the written plea offer

before it expired fell below an objective reasonableness standard, but

it failed to require Frye to show that the plea offer would have been

adhered to by the prosecution and accepted by the trial court. These

matters should be addressed by the Missouri appellate court in the

first instance. Given that Frye’s new offense for driving without a li-

cense occurred a week before his preliminary hearing, there is reason

to doubt that the prosecution would have adhered to the agreement

or that the trial court would have accepted it unless they were re-

4 MISSOURI v. FRYE

Syllabus

quired by state law to do so. Pp. 13–15.

311 S. W. 3d 350, vacated and remanded.

KENNEDY, J., delivered the opinion of the Court, in which GINSBURG,

BREYER, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., filed a dissent-

ing opinion, in which ROBERTS, C. J., and THOMAS and ALITO, JJ.,

joined.

Cite as: 566 U. S. ____ (2012) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–444

_________________

MISSOURI, PETITIONER v. GALIN E. FRYE

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF

MISSOURI, WESTERN DISTRICT

[March 21, 2012]

JUSTICE KENNEDY delivered the opinion of the Court.

The Sixth Amendment, applicable to the States by the

terms of the Fourteenth Amendment, provides that the ac-

cused shall have the assistance of counsel in all criminal

prosecutions. The right to counsel is the right to effective

assistance of counsel. See Strickland v. Washington, 466

U. S. 668, 686 (1984). This case arises in the context of

claimed ineffective assistance that led to the lapse of a

prosecution offer of a plea bargain, a proposal that offered

terms more lenient than the terms of the guilty plea en-

tered later. The initial question is whether the consti-

tutional right to counsel extends to the negotiation and

consideration of plea offers that lapse or are rejected. If

there is a right to effective assistance with respect to those

offers, a further question is what a defendant must dem-

onstrate in order to show that prejudice resulted from

counsel’s deficient performance. Other questions relating

to ineffective assistance with respect to plea offers, includ-

ing the question of proper remedies, are considered in a

second case decided today. See Lafler v. Cooper, post, at

3–16.

2 MISSOURI v. FRYE

Opinion of the Court

I

In August 2007, respondent Galin Frye was charged

with driving with a revoked license. Frye had been con-

victed for that offense on three other occasions, so the

State of Missouri charged him with a class D felony, which

carries a maximum term of imprisonment of four years.

See Mo. Rev. Stat. §§302.321.2, 558.011.1(4) (2011).

On November 15, the prosecutor sent a letter to Frye’s

counsel offering a choice of two plea bargains. App. 50.

The prosecutor first offered to recommend a 3-year sen-

tence if there was a guilty plea to the felony charge, with-

out a recommendation regarding probation but with a

recommendation that Frye serve 10 days in jail as so-

called “shock” time. The second offer was to reduce the

charge to a misdemeanor and, if Frye pleaded guilty to it,

to recommend a 90-day sentence. The misdemeanor

charge of driving with a revoked license carries a maxi-

mum term of imprisonment of one year. 311 S. W. 3d 350,

360 (Mo. App. 2010). The letter stated both offers would

expire on December 28. Frye’s attorney did not advise

Frye that the offers had been made. The offers expired.

Id., at 356.

Frye’s preliminary hearing was scheduled for January 4,

2008. On December 30, 2007, less than a week before

the hearing, Frye was again arrested for driving with a re-

voked license. App. 47–48, 311 S. W. 3d, at 352–353. At

the January 4 hearing, Frye waived his right to a prelimi-

nary hearing on the charge arising from the August 2007

arrest. He pleaded not guilty at a subsequent arraign-

ment but then changed his plea to guilty. There was no

underlying plea agreement. App. 5, 13, 16. The state trial

court accepted Frye’s guilty plea. Id., at 21. The prosecu-

tor recommended a 3-year sentence, made no recommen-

dation regarding probation, and requested 10 days shock

time in jail. Id., at 22. The trial judge sentenced Frye to

three years in prison. Id., at 21, 23.

Cite as: 566 U. S. ____ (2012) 3

Opinion of the Court

Frye filed for postconviction relief in state court. Id., at

8, 25–29. He alleged his counsel’s failure to inform him of

the prosecution’s plea offer denied him the effective assis-

tance of counsel. At an evidentiary hearing, Frye testified

he would have entered a guilty plea to the misdemeanor

had he known about the offer. Id., at 34.

A state court denied the postconviction motion, id., at

52–57, but the Missouri Court of Appeals reversed, 311

S. W. 3d 350. It determined that Frye met both of the

requirements for showing a Sixth Amendment violation

under Strickland. First, the court determined Frye’s

counsel’s performance was deficient because the “record is

void of any evidence of any effort by trial counsel to com-

municate the Offer to Frye during the Offer window.” 311

S. W. 3d, at 355, 356 (emphasis deleted). The court next

concluded Frye had shown his counsel’s deficient perfor-

mance caused him prejudice because “Frye pled guilty to

a felony instead of a misdemeanor and was subject to a

maximum sentence of four years instead of one year.” Id.,

at 360.

To implement a remedy for the violation, the court

deemed Frye’s guilty plea withdrawn and remanded to

allow Frye either to insist on a trial or to plead guilty

to any offense the prosecutor deemed it appropriate to

charge. This Court granted certiorari. 562 U. S. ___

(2011).

II

A

It is well settled that the right to the effective assistance

of counsel applies to certain steps before trial. The “Sixth

Amendment guarantees a defendant the right to have

counsel present at all ‘critical’ stages of the criminal pro-

ceedings.” Montejo v. Louisiana, 556 U. S. 778, 786 (2009)

(quoting United States v. Wade, 388 U. S. 218, 227–228

(1967)). Critical stages include arraignments, postindict-

4 MISSOURI v. FRYE

Opinion of the Court

ment interrogations, postindictment lineups, and the

entry of a guilty plea. See Hamilton v. Alabama, 368 U. S.

52 (1961) (arraignment); Massiah v. United States, 377

U. S. 201 (1964) (postindictment interrogation); Wade,

supra (postindictment lineup); Argersinger v. Hamlin, 407

U. S. 25 (1972) (guilty plea).

With respect to the right to effective counsel in plea

negotiations, a proper beginning point is to discuss two

cases from this Court considering the role of counsel in

advising a client about a plea offer and an ensuing guilty

plea: Hill v. Lockhart, 474 U. S. 52 (1985); and Padilla v.

Kentucky, 559 U. S. ___(2010).

Hill established that claims of ineffective assistance of

counsel in the plea bargain context are governed by the

two-part test set forth in Strickland. See Hill, supra, at

57. As noted above, in Frye’s case, the Missouri Court of

Appeals, applying the two part test of Strickland, deter-

mined first that defense counsel had been ineffective and

second that there was resulting prejudice.

In Hill, the decision turned on the second part of the

Strickland test. There, a defendant who had entered a

guilty plea claimed his counsel had misinformed him of

the amount of time he would have to serve before he be-

came eligible for parole. But the defendant had not al-

leged that, even if adequate advice and assistance had

been given, he would have elected to plead not guilty and

proceed to trial. Thus, the Court found that no prejudice

from the inadequate advice had been shown or alleged.

Hill, supra, at 60.

In Padilla, the Court again discussed the duties of

counsel in advising a client with respect to a plea offer

that leads to a guilty plea. Padilla held that a guilty plea,

based on a plea offer, should be set aside because counsel

misinformed the defendant of the immigration conse-

quences of the conviction. The Court made clear that “the

negotiation of a plea bargain is a critical phase of litiga-

Cite as: 566 U. S. ____ (2012) 5

Opinion of the Court

tion for purposes of the Sixth Amendment right to effec-

tive assistance of counsel.” 559 U. S., at ___ (slip op., at

16). It also rejected the argument made by petitioner in

this case that a knowing and voluntary plea supersedes

errors by defense counsel. Cf. Brief for Respondent in

Padilla v. Kentucky, O. T. 2009, No. 08–651, p. 27 (arguing

Sixth Amendment’s assurance of effective assistance “does

not extend to collateral aspects of the prosecution” because

“knowledge of the consequences that are collateral to the

guilty plea is not a prerequisite to the entry of a knowing

and intelligent plea”).

In the case now before the Court the State, as petitioner,

points out that the legal question presented is different

from that in Hill and Padilla. In those cases the claim

was that the prisoner’s plea of guilty was invalid because

counsel had provided incorrect advice pertinent to the

plea. In the instant case, by contrast, the guilty plea that

was accepted, and the plea proceedings concerning it in

court, were all based on accurate advice and information

from counsel. The challenge is not to the advice pertain-

ing to the plea that was accepted but rather to the course

of legal representation that preceded it with respect to

other potential pleas and plea offers.

To give further support to its contention that the instant

case is in a category different from what the Court consid-

ered in Hill and Padilla, the State urges that there is no

right to a plea offer or a plea bargain in any event. See

Weatherford v. Bursey, 429 U. S. 545, 561 (1977). It claims

Frye therefore was not deprived of any legal benefit to

which he was entitled. Under this view, any wrongful or

mistaken action of counsel with respect to earlier plea

offers is beside the point.

The State is correct to point out that Hill and Padilla

concerned whether there was ineffective assistance lead-

ing to acceptance of a plea offer, a process involving a

formal court appearance with the defendant and all coun-

6 MISSOURI v. FRYE

Opinion of the Court

sel present. Before a guilty plea is entered the defendant’s

understanding of the plea and its consequences can be

established on the record. This affords the State substan-

tial protection against later claims that the plea was the

result of inadequate advice. At the plea entry proceedings

the trial court and all counsel have the opportunity to

establish on the record that the defendant understands

the process that led to any offer, the advantages and

disadvantages of accepting it, and the sentencing conse-

quences or possibilities that will ensue once a conviction is

entered based upon the plea. See, e.g., Fed. Rule Crim.

Proc. 11; Mo. Sup. Ct. Rule 24.02 (2004). Hill and Padilla

both illustrate that, nevertheless, there may be instances

when claims of ineffective assistance can arise after the

conviction is entered. Still, the State, and the trial court

itself, have had a substantial opportunity to guard against

this contingency by establishing at the plea entry proceed-

ing that the defendant has been given proper advice or, if

the advice received appears to have been inadequate, to

remedy that deficiency before the plea is accepted and the

conviction entered.

When a plea offer has lapsed or been rejected, however,

no formal court proceedings are involved. This under-

scores that the plea-bargaining process is often in flux,

with no clear standards or timelines and with no judicial

supervision of the discussions between prosecution and

defense. Indeed, discussions between client and defense

counsel are privileged. So the prosecution has little or no

notice if something may be amiss and perhaps no capacity

to intervene in any event. And, as noted, the State insists

there is no right to receive a plea offer. For all these

reasons, the State contends, it is unfair to subject it to the

consequences of defense counsel’s inadequacies, especially

when the opportunities for a full and fair trial, or, as here,

for a later guilty plea albeit on less favorable terms, are

preserved.

Cite as: 566 U. S. ____ (2012) 7

Opinion of the Court

The State’s contentions are neither illogical nor without

some persuasive force, yet they do not suffice to overcome

a simple reality. Ninety-seven percent of federal con-

victions and ninety-four percent of state convictions are

the result of guilty pleas. See Dept. of Justice, Bureau

of Justice Statistics, Sourcebook of Criminal Justice Sta-

tistics Online, Table 5.22.2009, http://www.albany.edu/

sourcebook/pdf/t5222009.pdf (all Internet materials as

visited Mar. 1, 2012, and available in Clerk of Court’s case

file); Dept. of Justice, Bureau of Justice Statistics, S.

Rosenmerkel, M. Durose, & D. Farole, Felony Sentences in

State Courts, 2006-Statistical Tables, p. 1 (NCJ226846,

rev. Nov. 2010), http://bjs.ojp.usdoj.gov/content/pub/pdf/

fssc06st.pdf; Padilla, supra, at ___ (slip op., at 15) (recog-

nizing pleas account for nearly 95% of all criminal convic-

tions). The reality is that plea bargains have become so

central to the administration of the criminal justice sys-

tem that defense counsel have responsibilities in the plea

bargain process, responsibilities that must be met to

render the adequate assistance of counsel that the Sixth

Amendment requires in the criminal process at critical

stages. Because ours “is for the most part a system of

pleas, not a system of trials,” Lafler, post, at 11, it is insuf-

ficient simply to point to the guarantee of a fair trial as a

backstop that inoculates any errors in the pretrial process.

“To a large extent . . . horse trading [between prosecutor

and defense counsel] determines who goes to jail and for

how long. That is what plea bargaining is. It is not some

adjunct to the criminal justice system; it is the criminal

justice system.” Scott & Stuntz, Plea Bargaining as Con-

tract, 101 Yale L. J. 1909, 1912 (1992). See also Barkow,

Separation of Powers and the Criminal Law, 58 Stan. L.

Rev. 989, 1034 (2006) (“[Defendants] who do take their

case to trial and lose receive longer sentences than even

Congress or the prosecutor might think appropriate, be-

cause the longer sentences exist on the books largely for

8 MISSOURI v. FRYE

Opinion of the Court

bargaining purposes. This often results in individuals

who accept a plea bargain receiving shorter sentences

than other individuals who are less morally culpable but

take a chance and go to trial” (footnote omitted)). In to-

day’s criminal justice system, therefore, the negotiation of

a plea bargain, rather than the unfolding of a trial, is

almost always the critical point for a defendant.

To note the prevalence of plea bargaining is not to criti-

cize it. The potential to conserve valuable prosecutorial

resources and for defendants to admit their crimes and

receive more favorable terms at sentencing means that a

plea agreement can benefit both parties. In order that

these benefits can be realized, however, criminal defend-

ants require effective counsel during plea negotiations.

“Anything less . . . might deny a defendant ‘effective repre-

sentation by counsel at the only stage when legal aid and

advice would help him.’ ” Massiah, 377 U. S., at 204 (quot-

ing Spano v. New York, 360 U. S. 315, 326 (1959) (Doug-

las, J., concurring)).

B

The inquiry then becomes how to define the duty and

responsibilities of defense counsel in the plea bargain

process. This is a difficult question. “The art of negotia-

tion is at least as nuanced as the art of trial advocacy and

it presents questions farther removed from immediate

judicial supervision.” Premo v. Moore, 562 U. S. ___, ___

(2011) (slip op., at 8–9). Bargaining is, by its nature,

defined to a substantial degree by personal style. The

alternative courses and tactics in negotiation are so indi-

vidual that it may be neither prudent nor practicable to

try to elaborate or define detailed standards for the proper

discharge of defense counsel’s participation in the process.

Cf. ibid.

This case presents neither the necessity nor the occasion

to define the duties of defense counsel in those respects,

Cite as: 566 U. S. ____ (2012) 9

Opinion of the Court

however. Here the question is whether defense counsel

has the duty to communicate the terms of a formal offer to

accept a plea on terms and conditions that may result in a

lesser sentence, a conviction on lesser charges, or both.

This Court now holds 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. Any exceptions to

that rule need not be explored here, for the offer was a

formal one with a fixed expiration date. When defense

counsel allowed the offer to expire without advising the

defendant or allowing him to consider it, defense counsel

did not render the effective assistance the Constitution

requires.

Though the standard for counsel’s performance is not

determined solely by reference to codified standards of

professional practice, these standards can be important

guides. The American Bar Association recommends de-

fense counsel “promptly communicate and explain to the

defendant all plea offers made by the prosecuting attor-

ney,” ABA Standards for Criminal Justice, Pleas of Guilty

14–3.2(a) (3d ed. 1999), and this standard has been adopt-

ed by numerous state and federal courts over the last 30

years. See, e.g., Davie v. State, 381 S. C. 601, 608–609,

675 S. E. 2d 416, 420 (2009); Cottle v. State, 733 So. 2d

963, 965–966 (Fla. 1999); Becton v. Hun, 205 W. Va. 139,

144, 516 S. E. 2d 762, 767 (1999); Harris v. State, 875

S. W. 2d 662, 665 (Tenn. 1994); Lloyd v. State, 258 Ga.

645, 648, 373 S. E. 2d 1, 3 (1988); United States v. Rodri-

guez Rodriguez, 929 F. 2d 747, 752 (CA1 1991) (per curi-

am); Pham v. United States, 317 F. 3d 178, 182 (CA2

2003); United States ex rel. Caruso v. Zelinsky, 689 F. 2d

435, 438 (CA3 1982); Griffin v. United States, 330 F. 3d

733, 737 (CA6 2003); Johnson v. Duckworth, 793 F. 2d

898, 902 (CA7 1986); United States v. Blaylock, 20 F. 3d

1458, 1466 (CA9 1994); cf. Diaz v. United States, 930 F. 2d

10 MISSOURI v. FRYE

Opinion of the Court

832, 834 (CA11 1991). The standard for prompt communi-

cation and consultation is also set out in state bar profes-

sional standards for attorneys. See, e.g., Fla. Rule Regu-

lating Bar 4–1.4 (2008); Ill. Rule Prof. Conduct 1.4 (2011);

Kan. Rule Prof. Conduct 1.4 (2010); Ky. Sup. Ct. Rule

3.130, Rule Prof. Conduct 1.4 (2011); Mass. Rule Prof.

Conduct 1.4 (2011–2012); Mich. Rule Prof. Conduct 1.4

(2011).

The prosecution and the trial courts may adopt some

measures to help ensure against late, frivolous, or fabri-

cated claims after a later, less advantageous plea offer has

been accepted or after a trial leading to conviction with

resulting harsh consequences. First, the fact of a formal

offer means that its terms and its processing can be docu-

mented so that what took place in the negotiation process

becomes more clear if some later inquiry turns on the

conduct of earlier pretrial negotiations. Second, States

may elect to follow rules that all offers must be in writing,

again to ensure against later misunderstandings or fabri-

cated charges. See N. J. Ct. Rule 3:9–1(b) (2012) (“Any

plea offer to be made by the prosecutor shall be in writing

and forwarded to the defendant’s attorney”). Third, formal

offers can be made part of the record at any subsequent

plea proceeding or before a trial on the merits, all to en-

sure that a defendant has been fully advised before those

further proceedings commence. At least one State often

follows a similar procedure before trial. See Brief for

National Association of Criminal Defense Lawyers et al.

as Amici Curiae 20 (discussing hearings in Arizona con-

ducted pursuant to State v. Donald, 198 Ariz. 406, 10 P. 3d

1193 (App. 2000)); see also N. J. Ct. Rules 3:9–1(b), (c)

(requiring the prosecutor and defense counsel to discuss

the case prior to the arraignment/status conference includ-

ing any plea offers and to report on these discussions in

open court with the defendant present); In re Alvernaz, 2

Cal. 4th 924, 938, n. 7, 830 P. 2d 747, 756, n. 7 (1992)

Cite as: 566 U. S. ____ (2012) 11

Opinion of the Court

(encouraging parties to “memorialize in some fashion prior

to trial (1) the fact that a plea bargain offer was made, and

(2) that the defendant was advised of the offer [and] its

precise terms, . . . and (3) the defendant’s response to the

plea bargain offer”); Brief for Center on the Administra-

tion of Criminal Law, New York University School of Law

as Amicus Curiae 25–27.

Here defense counsel did not communicate the formal

offers to the defendant. As a result of that deficient per-

formance, the offers lapsed. Under Strickland, the ques-

tion then becomes what, if any, prejudice resulted from

the breach of duty.

C

To show prejudice from ineffective assistance of counsel

where a plea offer has lapsed or been rejected because of

counsel’s deficient performance, defendants must demon-

strate a reasonable probability they would have accepted

the earlier plea offer had they been afforded effective

assistance of counsel. Defendants must also demonstrate

a reasonable probability the plea would have been entered

without the prosecution canceling it or the trial court

refusing to accept it, if they had the authority to exercise

that discretion under state law. To establish prejudice in

this instance, it is necessary to show a reasonable proba-

bility that the end result of the criminal process would

have been more favorable by reason of a plea to a lesser

charge or a sentence of less prison time. Cf. Glover v.

United States, 531 U. S. 198, 203 (2001) (“[A]ny amount of

[additional] jail time has Sixth Amendment significance”).

This application of Strickland to the instances of an

uncommunicated, lapsed plea does nothing to alter the

standard laid out in Hill. In cases where a defendant

complains that ineffective assistance led him to accept a

plea offer as opposed to proceeding to trial, the defendant

will have to show “a reasonable probability that, but for

12 MISSOURI v. FRYE

Opinion of the Court

counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial.” Hill, 474 U. S., at

59. Hill was correctly decided and applies in the context

in which it arose. Hill does not, however, provide the sole

means for demonstrating prejudice arising from the defi-

cient performance of counsel during plea negotiations.

Unlike the defendant in Hill, Frye argues that with effec-

tive assistance he would have accepted an earlier plea

offer (limiting his sentence to one year in prison) as op-

posed to entering an open plea (exposing him to a maxi-

mum sentence of four years’ imprisonment). In a case,

such as this, where a defendant pleads guilty to less fa-

vorable terms and claims that ineffective assistance of

counsel caused him to miss out on a more favorable earlier

plea offer, Strickland’s inquiry into whether “the result of

the proceeding would have been different,” 466 U. S., at

694, requires looking not at whether the defendant would

have proceeded to trial absent ineffective assistance but

whether he would have accepted the offer to plead pursu-

ant to the terms earlier proposed.

In order to complete a showing of Strickland prejudice,

defendants who have shown a reasonable probability they

would have accepted the earlier plea offer must also show

that, if the prosecution had the discretion to cancel it or

if the trial court had the discretion to refuse to accept it,

there is a reasonable probability neither the prosecution

nor the trial court would have prevented the offer from

being accepted or implemented. This further showing is of

particular importance because a defendant has no right to

be offered a plea, see Weatherford, 429 U. S., at 561, nor a

federal right that the judge accept it, Santobello v. New

York, 404 U. S. 257, 262 (1971). In at least some States,

including Missouri, it appears the prosecution has some

discretion to cancel a plea agreement to which the defend-

ant has agreed, see, e.g., 311 S. W. 3d, at 359 (case below);

Ariz. Rule Crim. Proc. 17.4(b) (Supp. 2011). The Federal

Cite as: 566 U. S. ____ (2012) 13

Opinion of the Court

Rules, some state rules including in Missouri, and this

Court’s precedents give trial courts some leeway to accept

or reject plea agreements, see Fed. Rule Crim. Proc.

11(c)(3); see Mo. Sup. Ct. Rule 24.02(d)(4); Boykin v. Ala-

bama, 395 U. S. 238, 243–244 (1969). It can be assumed

that in most jurisdictions prosecutors and judges are

familiar with the boundaries of acceptable plea bargains

and sentences. So in most instances it should not be

difficult to make an objective assessment as to whether or

not a particular fact or intervening circumstance would

suffice, in the normal course, to cause prosecutorial with-

drawal or judicial nonapproval of a plea bargain. The

determination that there is or is not a reasonable probabil-

ity that the outcome of the proceeding would have been

different absent counsel’s errors can be conducted within

that framework.

III

These standards must be applied to the instant case. As

regards the deficient performance prong of Strickland, the

Court of Appeals found the “record is void of any evidence

of any effort by trial counsel to communicate the [formal]

Offer to Frye during the Offer window, let alone any evi-

dence that Frye’s conduct interfered with trial counsel’s

ability to do so.” 311 S. W. 3d, at 356. On this record, it

is evident that Frye’s attorney did not make a meaningful

attempt to inform the defendant of a written plea offer

before the offer expired. See supra, at 2. The Missouri

Court of Appeals was correct that “counsel’s representa-

tion fell below an objective standard of reasonableness.”

Strickland, supra, at 688.

The Court of Appeals erred, however, in articulating the

precise standard for prejudice in this context. As noted, a

defendant in Frye’s position must show not only a reason-

able probability that he would have accepted the lapsed

plea but also a reasonable probability that the prosecution

14 MISSOURI v. FRYE

Opinion of the Court

would have adhered to the agreement and that it would

have been accepted by the trial court. Frye can show he

would have accepted the offer, but there is strong reason

to doubt the prosecution and the trial court would have

permitted the plea bargain to become final.

There appears to be a reasonable probability Frye would

have accepted the prosecutor’s original offer of a plea

bargain if the offer had been communicated to him, be-

cause he pleaded guilty to a more serious charge, with no

promise of a sentencing recommendation from the prose-

cutor. It may be that in some cases defendants must show

more than just a guilty plea to a charge or sentence harsh-

er than the original offer. For example, revelations be-

tween plea offers about the strength of the prosecution’s

case may make a late decision to plead guilty insufficient

to demonstrate, without further evidence, that the defend-

ant would have pleaded guilty to an earlier, more gener-

ous plea offer if his counsel had reported it to him. Here,

however, that is not the case. The Court of Appeals did

not err in finding Frye’s acceptance of the less favorable

plea offer indicated that he would have accepted the earli-

er (and more favorable) offer had he been apprised of it;

and there is no need to address here the showings that

might be required in other cases.

The Court of Appeals failed, however, to require Frye to

show that the first plea offer, if accepted by Frye, would

have been adhered to by the prosecution and accepted by

the trial court. Whether the prosecution and trial court

are required to do so is a matter of state law, and it is not

the place of this Court to settle those matters. The Court

has established the minimum requirements of the Sixth

Amendment as interpreted in Strickland, and States have

the discretion to add procedural protections under state

law if they choose. A State may choose to preclude the

prosecution from withdrawing a plea offer once it has been

accepted or perhaps to preclude a trial court from rejecting

Cite as: 566 U. S. ____ (2012) 15

Opinion of the Court

a plea bargain. In Missouri, it appears “a plea offer once

accepted by the defendant can be withdrawn without re-

course” by the prosecution. 311 S. W. 3d, at 359. The ex-

tent of the trial court’s discretion in Missouri to reject a

plea agreement appears to be in some doubt. Compare id.,

at 360, with Mo. Sup. Ct. Rule 24.02(d)(4).

We remand for the Missouri Court of Appeals to consid-

er these state-law questions, because they bear on the

federal question of Strickland prejudice. If, as the Mis-

souri court stated here, the prosecutor could have canceled

the plea agreement, and if Frye fails to show a reasonable

probability the prosecutor would have adhered to the

agreement, there is no Strickland prejudice. Likewise, if

the trial court could have refused to accept the plea

agreement, and if Frye fails to show a reasonable probabil-

ity the trial court would have accepted the plea, there is no

Strickland prejudice. In this case, given Frye’s new of-

fense for driving without a license on December 30, 2007,

there is reason to doubt that the prosecution would have

adhered to the agreement or that the trial court would

have accepted it at the January 4, 2008, hearing, unless

they were required by state law to do so.

It is appropriate to allow the Missouri Court of Appeals

to address this question in the first instance. The judg-

ment of the Missouri Court of Appeals is vacated, and the

case is remanded for further proceedings not inconsistent

with this opinion.

It is so ordered.

Cite as: 566 U. S. ____ (2012) 1

SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–444

_________________

MISSOURI, PETITIONER v. GALIN E. FRYE

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF

MISSOURI, WESTERN DISTRICT

[March 21, 2012]

JUSTICE SCALIA, with whom THE CHIEF JUSTICE,

JUSTICE THOMAS, and JUSTICE ALITO join, dissenting.

This is a companion case to Lafler v. Cooper, post, p. ___.

The principal difference between the cases is that the

fairness of the defendant’s conviction in Lafler was estab-

lished by a full trial and jury verdict, whereas Frye’s

conviction here was established by his own admission of

guilt, received by the court after the usual colloquy that

assured it was voluntary and truthful. In Lafler all that

could be said (and as I discuss there it was quite enough)

is that the fairness of the conviction was clear, though a

unanimous jury finding beyond a reasonable doubt can

sometimes be wrong. Here it can be said not only that the

process was fair, but that the defendant acknowledged the

correctness of his conviction. Thus, as far as the reasons

for my dissent are concerned, this is an a fortiori case. I

will not repeat here the constitutional points that I discuss

at length in Lafler, but I will briefly apply those points to

the facts here and comment upon a few statements in the

Court’s analysis.

* * *

Galin Frye’s attorney failed to inform him about a plea

offer, and Frye ultimately pleaded guilty without the

benefit of a deal. Counsel’s mistake did not deprive Frye

of any substantive or procedural right; only of the oppor-

2 MISSOURI v. FRYE

SCALIA, J., dissenting

tunity to accept a plea bargain to which he had no enti-

tlement in the first place. So little entitlement that, had

he known of and accepted the bargain, the prosecution

would have been able to withdraw it right up to the point

that his guilty plea pursuant to the bargain was accepted.

See 311 S. W. 3d 350, 359, and n. 4 (Mo. App. 2010).

The Court acknowledges, moreover, that Frye’s convic-

tion was untainted by attorney error: “[T]he guilty plea

that was accepted, and the plea proceedings concerning it

in court, were all based on accurate advice and infor-

mation from counsel.” Ante, at 5. Given the “ultimate

focus” of our ineffective-assistance cases on “the funda-

mental fairness of the proceeding whose result is being

challenged,” Strickland v. Washington, 466 U. S. 668, 696

(1984), that should be the end of the matter. Instead,

here, as in Lafler, the Court mechanically applies an

outcome-based test for prejudice, and mistakes the possi-

bility of a different result for constitutional injustice. As

I explain in Lafler, post, p. ___ (dissenting opinion), that

approach is contrary to our precedents on the right to

effective counsel, and for good reason.

The Court announces its holding that “as a general rule,

defense counsel has the duty to communicate formal offers

from the prosecution” as though that resolves a disputed

point; in reality, however, neither the State nor the Solici-

tor General argued that counsel’s performance here was

adequate. Ante, at 9. The only issue was whether the in-

adequacy deprived Frye of his constitutional right to a

fair trial. In other cases, however, it will not be so clear

that counsel’s plea-bargaining skills, which must now

meet a constitutional minimum, are adequate. “[H]ow to

define the duty and responsibilities of defense counsel in

the plea bargain process,” the Court acknowledges, “is a

difficult question,” since “[b]argaining is, by its nature,

defined to a substantial degree by personal style.” Ante, at

8. Indeed. What if an attorney’s “personal style” is to

Cite as: 566 U. S. ____ (2012) 3

SCALIA, J., dissenting

establish a reputation as a hard bargainer by, for example,

advising clients to proceed to trial rather than accept

anything but the most favorable plea offers? It seems

inconceivable that a lawyer could compromise his client’s

constitutional rights so that he can secure better deals for

other clients in the future; does a hard-bargaining “per-

sonal style” now violate the Sixth Amendment? The Court

ignores such difficulties, however, since “[t]his case pre-

sents neither the necessity nor the occasion to define the

duties of defense counsel in those respects.” Ante, at 8.

Perhaps not. But it does present the necessity of confront-

ing the serious difficulties that will be created by constitu-

tionalization of the plea-bargaining process. It will not do

simply to announce that they will be solved in the sweet

by-and-by.

While the inadequacy of counsel’s performance in this

case is clear enough, whether it was prejudicial (in the

sense that the Court’s new version of Strickland requires)

is not. The Court’s description of how that question is

to be answered on remand is alone enough to show how

unwise it is to constitutionalize the plea-bargaining pro-

cess. Prejudice is to be determined, the Court tells us, by

a process of retrospective crystal-ball gazing posing as

legal analysis. First of all, of course, we must estimate

whether the defendant would have accepted the earlier

plea bargain. Here that seems an easy question, but as

the Court acknowledges, ante, at 14, it will not always be.

Next, since Missouri, like other States, permits accepted

plea offers to be withdrawn by the prosecution (a reality

which alone should suffice, one would think, to demon-

strate that Frye had no entitlement to the plea bargain),

we must estimate whether the prosecution would have

withdrawn the plea offer. And finally, we must estimate

whether the trial court would have approved the plea

agreement. These last two estimations may seem easy in

the present case, since Frye committed a new infraction

4 MISSOURI v. FRYE

SCALIA, J., dissenting

before the hearing at which the agreement would have

been presented; but they assuredly will not be easy in the

mine run of cases.

The Court says “[i]t can be assumed that in most juris-

dictions prosecutors and judges are familiar with the

boundaries of acceptable plea bargains and sentences.”

Ante, at 13. Assuredly it can, just as it can be assumed

that the sun rises in the west; but I know of no basis for

the assumption. Virtually no cases deal with the stand-

ards for a prosecutor’s withdrawal from a plea agreement

beyond stating the general rule that a prosecutor may

withdraw any time prior to, but not after, the entry of a

guilty plea or other action constituting detrimental reli-

ance on the defendant’s part. See, e.g., United States v.

Kuchinski, 469 F. 3d 853, 857–858 (CA9 2006). And cases

addressing trial courts’ authority to accept or reject plea

agreements almost universally observe that a trial court

enjoys broad discretion in this regard. See, e.g., Missouri

v. Banks, 135 S. W. 3d 497, 500 (Mo. App. 2004) (trial

court abuses its discretion in rejecting a plea only if the

decision “is so arbitrary and unreasonable that it shocks

the sense of justice and indicates a lack of careful con-

sideration” (internal quotation marks omitted)). Of course

after today’s opinions there will be cases galore, so the

Court’s assumption would better be cast as an optimistic

prediction of the certainty that will emerge, many years

hence, from our newly created constitutional field of plea-

bargaining law. Whatever the “boundaries” ultimately

devised (if that were possible), a vast amount of discretion

will still remain, and it is extraordinary to make a defend-

ant’s constitutional rights depend upon a series of ret-

rospective mind-readings as to how that discretion, in

prosecutors and trial judges, would have been exercised.

The plea-bargaining process is a subject worthy of regu-

lation, since it is the means by which most criminal con-

victions are obtained. It happens not to be, however, a

Cite as: 566 U. S. ____ (2012) 5

SCALIA, J., dissenting

subject covered by the Sixth Amendment, which is con-

cerned not with the fairness of bargaining but with the

fairness of conviction. “The Constitution . . . is not an all-

purpose tool for judicial construction of a perfect world;

and when we ignore its text in order to make it that, we

often find ourselves swinging a sledge where a tack ham-

mer is needed.” Padilla v. Kentucky, 559 U. S. ___, ___

(2010) (SCALIA, J., dissenting) (slip op., at 1). In this case

and its companion, the Court’s sledge may require the

reversal of perfectly valid, eminently just, convictions. A

legislature could solve the problems presented by these

cases in a much more precise and efficient manner. It

might begin, for example, by penalizing the attorneys

who made such grievous errors. That type of sub-

constitutional remedy is not available to the Court, which

is limited to penalizing (almost) everyone else by reversing

valid convictions or sentences. Because that result is

inconsistent with the Sixth Amendment and decades of

our precedent, I respectfully dissent.