(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, WESTERN DISTRICT 

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

Respondent Frye was charged with driving with a revoked license. Because he had been convicted of the same offense three times before, 

he was charged, under Missouri law, with a felony carrying a maximum 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 expired. 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. Washington, 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 extends 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 consequences, 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 albeit 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 convictions and 94 percent of state convictions are the result of guilty

pleas. Plea bargains have become so central to today’s criminal justice 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 consultation recommended by the American Bar Association and adopted 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 documented. 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 demonstrate a reasonable probability both that they would have accepted

the more favorable plea offer had they been afforded effective assistance 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 going 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 demonstrating prejudice arising from counsel’s deficient performance during plea negotiations. Because Frye argues that with effective assistance 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, requires 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 cancel 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 accepted 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 trial courts some leeway to accept or reject plea agreements. Pp. 11–13.

4. Applying these standards here, the Missouri court correctly concluded 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 license 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 dissenting 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, Washington, 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 accused 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 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. Other questions relating 

to ineffective assistance with respect to plea offers, including 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 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.

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 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 socalled “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. 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 revoked license. App. 47–48, 311 S. W. 3d, at 352–353. 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. App. 5, 13, 16. The state trial

court accepted Frye’s guilty plea. Id., at 21. The prosecutor recommended a 3-year sentence, made no recommendation 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 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. 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 communicate 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 performance 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 proceedings.” 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, 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. 

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 consequences 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 effective 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 pertaining 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 considered 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 leading 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 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. 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 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. 

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

no formal court proceedings are involved. This underscores 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 convictions 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 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 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,” 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 criminal 

justice 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 even 

Congress or the prosecutor might think appropriate, because 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 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.’” Massiah, 377 U. S., at 204 (quoting Spano v. New York, 360 U. S. 315, 326 (1959) (Douglas, 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 negotiation 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 individual 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 defense counsel “promptly communicate and explain to the 

defendant all plea offers made by the prosecuting attorney,” ABA Standards for Criminal Justice, Pleas of Guilty 

14–3.2(a) (3d ed. 1999), and this standard has been adopted 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. Rodriguez Rodriguez, 929 F. 2d 747, 752 (CA1 1991) (per curiam); 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 communication and consultation is also set out in state bar professional standards for attorneys. See, e.g., Fla. Rule Regulating 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 fabricated 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 documented 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 fabricated 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 ensure 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 conducted 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 including 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 Administration 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 performance, the offers lapsed. Under Strickland, the question 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 demonstrate 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 probability 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 deficient performance of counsel during plea negotiations.

Unlike the defendant in Hill, Frye argues that with effective assistance he would have accepted an earlier plea 

offer (limiting his sentence to one year in prison) as opposed to entering an open plea (exposing him to a maximum sentence of four years’ imprisonment). In a case, 

such as this, where a defendant pleads guilty to less favorable 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 pursuant 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 defendant 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. Alabama, 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 withdrawal or judicial nonapproval of a plea bargain. The 

determination that there is or is not a reasonable probability 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 evidence 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 representation 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 reasonable 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, because he pleaded guilty to a more serious charge, with no

promise of a sentencing recommendation from the prosecutor. It may be that in some cases defendants must show 

more than just a guilty plea to a charge or sentence harsher than the original offer. For example, revelations between 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 defendant would have pleaded guilty to an earlier, more generous 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 earlier (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 recourse” by the prosecution. 311 S. W. 3d, at 359. The extent 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 consider these state-law questions, because they bear on the 

federal question of Strickland prejudice. If, as the Missouri 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 probability the trial court would have accepted the plea, there is no 

Strickland prejudice. In this case, given Frye’s new offense 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 judgment 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 established 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 entitlement 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 conviction 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 information from counsel.” Ante, at 5. Given the “ultimate 

focus” of our ineffective-assistance cases on “the fundamental 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 possibility 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 Solicitor General argued that counsel’s performance here was

adequate. Ante, at 9. The only issue was whether the inadequacy 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 “personal style” now violate the Sixth Amendment? The Court 

ignores such difficulties, however, since “[t]his case presents 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 confronting the serious difficulties that will be created by constitutionalization 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 process. 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 demonstrate 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 jurisdictions 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 standards 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 reliance 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 consideration” (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 pleabargaining 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 defendant’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 regulation, since it is the means by which most criminal convictions 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 concerned not with the fairness of bargaining but with the

fairness of conviction. “The Constitution . . . is not an allpurpose 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 hammer 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 subconstitutional 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.