Attacking the Guilty Plea: The Ineffective Assistance of Counsel Standard

More than 95% of state and federal convictions are by way of a guilty plea, and almost all of them are the result of counsel’s advice to plead guilty. A successful attack on a guilty plea would then depend on showing that counsel’s bad advice to plead guilty rendered the plea not “knowing and voluntary.” Let’s take a look at the standard for showing ineffective assistance of counsel (IAC) in the guilty plea context.

The Negotiation of a Guilty Plea is a Critical Phase of a Criminal Case

Criminal defendants are expected to rely on their lawyer’s advice in deciding to plead guilty. And the U.S. Supreme Court has recognized as much. In Padilla v. Kentucky, 559 U.S. 356 (2010), the Court reaffirmed its longstanding position that “the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel.”

The Court’s statement was hardly a surprise. For over 70 years, the Court has said that lawyers are required to give clients their “informed opinion as to what plea should be entered.” Von Moltke v. Gillies, 332 U.S. 708 (1948). The Court has further said that the decision whether to plead guilty is “impossible” without counsel’s advice. Brady v. United States, 397 U.S. 742 (1970). In short, counsel’s advice is a critical factor when deciding to plead guilty.

IAC Implicates the Voluntariness of a Guilty Plea

IAC has rendered countless guilty pleas constitutionally invalid because it calls into question the voluntary nature of the plea. “A guilty plea can be involuntary as a result of the ineffective assistance of counsel,” the U.S. Court of Appeals for the Sixth Circuit said in United States v. Gardner, 417 F.3d 541 (2005). Have you ever wondered why this is true? Sure, bad advice to plead guilty can be “prejudicial” because the outcome of your case could have been significantly different had you made a different choice. But that’s only part of why IAC makes a guilty plea involuntary.

Your decision to plead guilty stems from the information and advice you received from your lawyer. The amount of prison time you faced, any fallout from the conviction (e.g., deportation), and any rights you waived by pleading guilty are all affected by the decision to plead guilty. All of this formed your understanding of the guilty plea — or the “knowing and voluntary nature” of the plea.

In other words, bad advice to plead guilty taints the voluntariness of your guilty plea because it affects your understanding of the plea.

This reasoning was the basis of the Supreme Court’s decision in Tollett v. Henderson, 411 U.S. 258 (1973). In that case, the Court held that a defendant who pleads guilty “may only attack the voluntary and intelligent [knowing] character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in [the Court’s decisions on the IAC standard].” It’s all about the advice to plead guilty, when it comes to attacking a guilty plea.

Counsel’s Bad Acts Can Taint A Guilty Plea

Not only can your lawyer’s bad advice taint a guilty plea but so can counsel’s bad acts that led up to the plea. In Missouri v. Frye, 566 U.S. 135 (2012), the Supreme Court noted that it wasn’t so much counsel’s bad advice that led to an invalid plea, but the “course of the legal representation that preceded it.”

The Court held in that case that counsel’s failure to advise the defendant of a more favorable plea offer exposed the defendant to a harsher sentence than if he had taken the better offer that he never knew about.

Strickland v. Washington in the Guilty Plea Context

The Supreme Court said in Hill v. Lockhart, 474 U.S. 52 (1985), that “defendants facing felony charges are entitled to the effective assistance of competent counsel.” But how do you measure whether counsel was “competent?” The answer lies in Strickland v. Washington, 466 U.S. 668 (1984), where the Supreme Court established a two-part test for testing whether counsel’s assistance was constitutionally sound.

In Hill, the Court extended the Strickland IAC test to claims in the guilty plea context. In other words, the Hill Court established the IAC standard for guilty plea challenges by adapting Strickland to those cases (Strickland was about counsel’s deficient performance at trial).

The familiar Strickland IAC test requires showing:

(1) “that counsel’s representation fell below an objective standard of reasonableness,” and
(2) “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

The Supreme Court has recognized that the American Bar Association rules for attorney conduct provide a guide as to what’s an “objective standard of reasonableness” for a lawyer’s performance.

A “reasonable probability” under Strickland simply means to “undermine the confidence in the outcome.” This is a significantly lower bar than the “beyond a reasonable doubt” standard and even lower than the “more likely than not” burden of proof.

“Strickland asks if a different result is ‘reasonably probable,’ not if it is possible.”
Brown v. United States, 729 F.3d 1316 (11th Cir. 2013).

Thus, showing “prejudice” is the key here. It’s all about a difference in the outcome. The Supreme Court has recognized three different prejudices in the guilty plea context:

(1) A defendant’s acceptance of a guilty plea that wouldn’t have been accepted but for IAC;
(2) Rejecting a favorable plea offer because of IAC; and
(3) IAC that led to the failure to communicate a plea offer or option to plead guilty.

Understanding these three different methods of showing prejudice in the guilty plea context is crucial. I go over these in more detail in my post Attacking the Guilty Plea: Establishing Prejudice in the Guilty Plea Context.