not reversible error for defense counsel to reject plea offer
How later courts described this case
- not reversible error for defense counsel to reject plea offer
Written by the judges who cited it.
The opinion
MILLER, Judge,
concurring.
I concur in Judge Conover's opinion, but write separately to address more specifically the first prong of Rose's argument under Issue HI.
Rose contends the prosecutor's plea bargain offer interfered with his sixth amendment right to effective assistance of counsel. He does not contend he was rendered ineffective assistance. Rose's argument is more in the nature of an allegation of pros-ecutorial misconduct. Therefore Judge Conover's reliance on authority that defense counsel's choices made for tactical or strategic reasons do not establish ineffective assistance of counsel does not directly address Rose's argument.
Specifically Rose argues that the prosecutor's plea bargain offer placed defense counsel Shaw in a Catch-22 position. If Shaw advised his client to accept the better offer (in which the prosecutor would recommend a six-year sentence with three years suspended), he would be advising his client to plead guilty before completing discovery *1147 of the state's case. If Shaw completed the discovery by deposing the state's witness, Trooper Banks, he would do so at the cost of rejecting the prosecutor's better plea bargain offer (and, if Rose subsequently pleaded guilty, the prosecutor would recommend suspension of only two years of the six-year sentence). In either situation, Rose posits, the prosecutor's double-edged plea bargain offer would prevent counsel from rendering effective assistance.
Rose's argument might call for closer attention if he had actually entered a plea bargain agreement in this case. While I acknowledge the laudable goals of plea ne-gotations-saving time and expense for all connected with a criminal prosecution-I believe there is some merit to Rose's position that a prosecutor should not be permitted, as a regular negotiating device, to condition a more advantageous plea bargain offer to the defendant on counsel's agreement to forego an investigation of the state's case to determine if the state possesses sufficient evidence to support a con-viection. Such a tactic does not promote the purpose of criminal proceedings as a search for the truth.
Nevertheless, in this particular case, Rose apparently rejected the prosecutor's plea bargain offers. He is thus in no worse position than if he had completed full discovery and investigation of the state's case and decided to proceed with trial. Therefore I fail to see how Rose was prejudiced by the prosecutor's plea bargain offer. Accordingly, I concur with Judge Conover.