Missouri v. Frye (2012)

Supreme Court of the United States

Missouri v. Galin E. Frye

Decided March 21, 2012 – 566 U.S. 134


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 accused shall have the assistance of counsel in all criminal prosecutions. The right to counsel is the right to effective assistance of counsel. 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 entered later. The initial question is whether the constitutional 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 demonstrate in order to show that prejudice resulted from counsel’s deficient performance. 


In August 2007, respondent Galin Frye was charged with driving with a revoked license. Frye had been convicted 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. 

On November 15, the prosecutor sent a letter to Frye’s counsel offering a choice of two plea bargains. The prosecutor first offered to recommend a 3-year sentence if there was a guilty plea to the felony charge, without 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 maximum term of imprisonment of one year. 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. 

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 revoked license. At the January 4 hearing, Frye waived his right to a preliminary hearing on the charge arising from the August 2007 arrest. He pleaded not guilty at a subsequent arraignment but then changed his plea to guilty. There was no underlying plea agreement. The state trial court accepted Frye’s guilty plea. The prosecutor recommended a 3-year sentence, made no recommendation regarding probation, and requested 10 days shock time in jail. The trial judge sentenced Frye to three years in prison. 

Frye filed for postconviction relief in state court. He alleged his counsel’s failure to inform him of the prosecution’s plea offer denied him the effective assistance of counsel. At an evidentiary hearing, Frye testified he would have entered a guilty plea to the misdemeanor had he known about the offer. 

A state court denied the postconviction motion, but the Missouri Court of Appeals reversed. 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.



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 proceedings.” Critical stages include arraignments, postindictment interrogations, postindictment lineups, and the entry of a 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. 356 (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. As noted above, in Frye’s case, the Missouri Court of Appeals, applying the two part test of Strickland, determined 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 became eligible for parole. But the defendant had not alleged 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. 

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 consequences of the conviction. The Court made clear that “the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel.” It also rejected the argument made by petitioner in this case that a knowing and voluntary plea supersedes errors by defense counsel.

The State is correct to point out 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. 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 substantial 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 consequences or possibilities that will ensue once a conviction is entered based upon the plea. 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 proceeding 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.

***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.

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 convictions and ninety-four percent of state convictions are the result of guilty pleas. The reality is that plea bargains have become so central to the administration of the criminal justice system 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,” it is insufficient 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.” In today’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 criticize 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 defendants require effective counsel during plea negotiations. “Anything less … might deny a defendant ‘effective representation by counsel at the only stage when legal aid and advice would help him.’” 


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.

***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, because he pleaded guilty to a more serious charge, with no promise of a sentencing recommendation from the prosecutor. 

Notes, Comments, and Questions 

In general, courts reviewing claims of ineffective assistance of counsel are deferential to decisions by lawyers that can plausibly be described as “strategy.” Notwithstanding the result in McCoy, lawyers enjoy broad latitude to decide how to achieve a client’s objectives, and judges rarely second guess choices simply because bad results followed. By contrast, ineffective assistance claims have greater success when a lawyer’s action (or inaction) appears driven by laziness rather than by tactics.

For example, a lawyer who interviews a potential alibi witness and chooses not to call her as a trial witness can later explain the strategy behind the choice. Perhaps the witness seemed shifty and counsel feared the jury would think poorly of a defendant who called such a witness. But if a client tells a lawyer of a potential alibi witness, and the lawyer conducts no investigation, the lawyer may have trouble justifying that choice.

Relatedly, defense lawyers have a duty to obtain expert testimony in cases where any reasonable lawyer would do so. An insanity defense, for example, will normally require expert testimony about the client’s mental health.

A few examples help illustrate the sorts of failings that constitute ineffective assistance:

In Hinton v. Alabama, 571 U.S. 263 (2014), the lawyer in a capital case had failed to obtain a qualified expert on “firearms and toolmark” evidence, largely because the lawyer erroneously believed that state law authorized only $1,000 for the cost of an expert. The Court held, “The trial attorney’s failure to request additional funding in order to replace an expert he knew to be inadequate because he mistakenly believed that he had received all he could get under Alabama law constituted deficient performance.” Subsequently, Hinton was exonerated and released after thirty years in prison. He tells his story in The Sun Does Shine: How I Found Life and Freedom on Death Row (2018).

In Wiggins v. Smith, 539 U.S. 510 (2003), the Court found ineffective assistance in the penalty phase of a capital case after trial counsel failed to conduct an adequate investigation into the defendant’s background. “Counsel’s decision not to expand their investigation beyond the [presentence investigation (PSI) report] and the [Baltimore City Department of Social Services (DSS)] records fell short of the professional standards that prevailed in Maryland in 1989.”

In Rompilla v. Beard, 545 U.S. 374 (2005), the Court found ineffective assistance in a lawyer’s failure to examine a capital defendant’s prior case files. “Counsel knew that the Commonwealth intended to seek the death penalty by proving Rompilla had a significant history of felony convictions indicating the use or threat of violence, an aggravator under state law. … [I]t is difficult to see how counsel could have failed to realize that without examining the readily available file they were seriously compromising their opportunity to respond to a case for aggravation.”

Rompilla offers insight on how changes to Court membership can affect constitutional law. Justice Sandra Day O’Connor voted with the majority, and the case was decided 5-4. (She joined the majority opinion and also filed a concurrence.) About two weeks afterward, O’Connor announced her retirement. O’Connor’s seat on the Court was then filled by Justice Samuel Alito, who joined the Court in 2006. As it happens, the Third Circuit judgment reversed by the Supreme Court in Rompilla was explained in an opinion written by then-Circuit Judge Alito. See 355 F.3d 233. Would a case with similar facts be decided the same way today? 


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