1 (Slip Opinion) OCTOBER TERM, 2011

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

, WESTERN DISTRICT

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

Respondent Frye was charged with dr iving with a revoked license. Be

cause he had been convicted of th e same offense three times before, he was charged, under Missouri la w, with a felony carrying a maxi

mum 4-year prison term. The prosec utor 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 po stconviction relief in state court, he alleged his counsel’s failure to in form 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 communica ting the plea offers to Frye and concluded that Frye had shown that counsel’s deficient performance caused him prejudice because he plea ded guilty to a felony instead of
a misdemeanor.

Held : 1. The Sixth Amendment right to e ffective assistance of counsel ex

tends to the consideration of plea o ffers that lapse or are rejected. That right applies to “all ‘critical’ st ages 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 defe nse 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 insist s 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 in adequacies when the opportunities for a full and fair trial, or for a later guilty plea al

beit on less favorable terms, are pr eserved. While these contentions are neither illogical nor without so me persuasive force, they do not suffice to overcome the simple reality that 97 percent of federal con

victions and 94 percent of state co nvictions are the result of guilty pleas. Plea bargains have become so central to today’s criminal jus

tice system that defense counsel mu st meet responsibilities in the plea bargain process to render th e 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 accuse d. 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 co urts, though not determinative, serve as important guides. The prosecution and trial courts may adopt measures to help ensure agai nst 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 the3 Cite as: 566 U. S. ____ (2012)

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 perf ormance, 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 reasonabl e 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 no t 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 pr osecution 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 Ru les of Criminal Procedure, some state rules, including Missouri’s, an d 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 info rm 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 a ccepted by the trial court. These
matters should be addr essed 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 pre liminary hearing, there is reason to doubt that the prosecution woul d 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.

K ENNEDY
, J., delivered the opinion of the Court, in which G INSBURG
, B REYER , S OTOMAYOR
, and K AGAN
, JJ., joined. S CALIA
, J., filed a dissent

ing opinion, in which R OBERTS
, C. J., and T HOMAS and A LITO
, JJ., joined._________________

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

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]

J USTICE K ENNEDY delivered the opinion of the Court.
The Sixth Amendment, applicable to the States by theterms of the Fourteenth Amendment, provides that the accused shall have the assistance of counsel in all criminal prosecutions. The right to couns el 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 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 a ssistance with respect to thoseoffers, a further question is what a defendant must demonstrate in order to show t hat prejudice resulted from counsel’s deficient performance. Other questions relating
to ineffective assistance with re spect 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 seco nd 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 beforethe hearing, Frye was again arrested for driving with a revoked 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 se ntence, 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, 23.3 Cite as: 566 U. S. ____ (2012)

Opinion of the Court

Frye filed for postconvicti on 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 ‘critica l’ 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 couns el 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 el ected 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

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

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 incorre ct 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 accu rate 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 differen t 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 overcomea simple reality. Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. See Dept. of Justice, Bureauof Justice Statistics, Sourcebook of Criminal Justice Statistics 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) (recognizing pleas account for nearly 95% of all criminal convictions). The reality is that plea bargains have become socentral 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,” Lafler

, post , at 11

, 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 criminaljustice system.” Scott & Stuntz, Plea Bargaining as Contract, 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 evenCongress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for8 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 neithe r 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 defe nse counsel in those respects,9 Cite as: 566 U. S. ____ (2012)

Opinion of the Court

however. Here the question is whether defense counsel has the duty to communicate th e 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 expi ration 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 comm unicate 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. 2d10 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 ne gotiations. 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 th e 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 re port 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)11 Cite as: 566 U. S. ____ (2012)

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 re sulted 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 assi stance led him to accept a plea offer as opposed to proceeding to trial, the defendant will have to show “a reasonable probability that, but for12 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 discre tion 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 Federal13 Cite as: 566 U. S. ____ (2012)

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 prosecution14 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 acce ptance 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 rejecting15 Cite as: 566 U. S. ____ (2012)

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 extent of the trial court’s dis cretion 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 pr osecutor 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

S CALIA
, 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]

J USTICE S CALIA , with whom T HE C HIEF J USTICE

, J USTICE T HOMAS , and J USTICE A LITO 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 th e 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 procedur al right; only of the oppor

-2 MISSOURI v. FRYE

S CALIA
, 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, mor eover, 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 inadequacy deprived Frye of hi s constitutional right to a fair trial. In other cases, ho wever, 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 to3 Cite as: 566 U. S. ____ (2012)

S CALIA
, 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-bargain ing 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 ot her 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 infraction4 MISSOURI v. FRYE

S CALIA
, 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 withdr awal 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 retrospective 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, a5 Cite as: 566 U. S. ____ (2012)

S CALIA
, 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 Co nstitution . . . is not an all

purpose tool for judicial cons truction 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) (S CALIA , J., dissenting) (slip op., at 1). In this case and its companion, the Court’s sledge may require the reversal of perfectly valid, em inently 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.