ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT Court Below: 376 Fed. Appx. 563
Respondent was charged under Michigan law with assault with intent to murder and three other offenses. The prosecution offered to dis miss two of the charges and to recommend a 51-to-85-month sentence on the other two, in exchange for a guilty plea. In a communication with the court, respondent admitted his guilt and expressed a will ingness to accept the offer. But he rejected the offer, allegedly after his attorney convinced him that the prosecution would be unable to establish intent to murder because the victim had been shot below the waist. At trial, respondent was convicted on all counts and re ceived a mandatory minimum 185-to-360-month sentence. In a sub sequent hearing, the state trial court rejected respondent's claim that his attorney's advice to reject the plea constituted ineffective assis tance. The Michigan Court of Appeals affirmed, rejecting the ineffec tive-assistance claim on the ground that respondent knowingly and intelligently turned down the plea offer and chose to go to trial. Re spondent renewed his claim in federal habeas. Finding that the state appellate court had unreasonably applied the constitutional effective assistance standards laid out in Strickland v. Washington, 466 U. S. 668, and Hill v. Lockhart, 474 U. S. 52, the District Court granted a conditional writ and ordered specific performance of the original plea offer. The Sixth Circuit affirmed. Applying Strickland, it found that counsel had provided deficient performance by advising respondent of an incorrect legal rule, and that respondent suffered prejudice be cause he lost the opportunity to take the more favorable sentence of fered in the plea.
1. Where counsel's ineffective advice led to an offer's rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable proba bility that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the actual judgment and sentence imposed. Pp. 3-11.
(a) Because the parties agree that counsel's performance was de ficient, the only question is how to apply Strickland's prejudice test where ineffective assistance results in a rejection of the plea offer and the defendant is convicted at the ensuing trial. Pp. 3-4.
(b) In that context, the Strickland prejudice test requires a de fendant to show a reasonable possibility that the outcome of the plea process would have been different with competent advice. The Sixth Circuit and other federal appellate courts have agreed with the Strickland prejudice test for rejected pleas adopted here by this Court. Petitioner and the Solicitor General propose a narrow view--that Strickland prejudice cannot arise from plea bargaining if the de fendant is later convicted at a fair trial--but their reasoning is un persuasive. First, they claim that the Sixth Amendment's sole pur pose is to protect the right to a fair trial, but the Amendment actually requires effective assistance at critical stages of a criminal proceed ing, including pretrial stages. This is consistent with the right to ef fective assistance on appeal, see, e.g., Halbert v. Michigan, 545 U. S. 605, and the right to counsel during sentencing, see, e.g., Glover v. United States, 531 U. S. 198, 203-204. This Court has not followed a rigid rule that an otherwise fair trial remedies errors not occurring at trial, but has instead inquired whether the trial cured the particular error at issue. See, e.g., Vasquez v. Hillery, 474 U. S. 254, 263. Se cond, this Court has previously rejected petitioner's argument that Lockhart v. Fretwell,
The opinion of the court was delivered by: Justice Kennedy
In this case, as in Missouri v. Frye, ante, p. ___, also decided today, a criminal defendant seeks a remedy when inadequate assistance of counsel caused nonacceptance of a plea offer and further proceedings led to a less favorable outcome. In Frye, defense counsel did not inform the defendant of the plea offer; and after the offer lapsed the defendant still pleaded guilty, but on more severe terms. Here, the favorable plea offer was reported to the client but, on advice of counsel, was rejected. In Frye there was a later guilty plea. Here, after the plea offer had been rejected, there was a full and fair trial before a jury. After a guilty verdict, the defendant received a sentence harsher than that offered in the rejected plea bargain. The instant case comes to the Court with the concession that counsel's advice with respect to the plea offer fell below the stand ard of adequate assistance of counsel guaranteed by the Sixth Amendment, applicable to the States through the Fourteenth Amendment.
On the evening of March 25, 2003, respondent pointed a gun toward Kali Mundy's head and fired. From the record, it is unclear why respondent did this, and at trial it was suggested that he might have acted either in self defense or in defense of another person. In any event the shot missed and Mundy fled. Respondent followed in pursuit, firing repeatedly. Mundy was shot in her buttock, hip, and abdomen but survived the assault.
Respondent was charged under Michigan law with as- sault with intent to murder, possession of a firearm by a felon, possession of a firearm in the commission of a fel- ony, misdemeanor possession of marijuana, and for being a habitual offender. On two occasions, the prosecution offered to dismiss two of the charges and to recommend a sentence of 51 to 85 months for the other two, in exchange for a guilty plea. In a communication with the court re spondent admitted guilt and expressed a willingness to accept the offer. Respondent, however, later rejected the offer on both occasions, allegedly after his attorney con vinced him that the prosecution would be unable to estab lish his intent to murder Mundy because she had been shot below the waist. On the first day of trial the prosecu tion offered a significantly less favorable plea deal, which respondent again rejected. After trial, respondent was convicted on all counts and received a mandatory mini mum sentence of 185 to 360 months' imprisonment.
In a so-called Ginther hearing before the state trial court, see People v. Ginther, 390 Mich. 436, 212 N. W. 2d 922 (1973), respondent argued his attorney's advice to reject the plea constituted ineffective assistance. The trial judge rejected the claim, and the Michigan Court of Ap peals affirmed. People v. Cooper, No. 250583, 2005 WL 599740 (Mar. 15, 2005) (per curiam), App. to Pet. for Cert. 44a. The Michigan Court of Appeals rejected the claim of ineffective assistance of counsel on the ground that re- spondent knowingly and intelligently rejected two plea offers and chose to go to trial. The Michigan Supreme Court denied respondent's application for leave to file an appeal. People v. Cooper, 474 Mich. 905, 705 N. W. 2d 118 (2005) (table).
Respondent then filed a petition for federal habeas relief under 28 U. S. C. §2254, renewing his ineffective assistance-of-counsel claim. After finding, as required by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), that the Michigan Court of Appeals had un- reasonably applied the constitutional standards for effective assistance of counsel laid out in Strickland v. Washington, 466 U. S. 668 (1984), and Hill v. Lockhart, 474 U. S. 52 (1985), the District Court granted a conditional writ. Cooper v. Lafler, No. 06-11068, 2009 WL 817712, *10 (ED Mich., Mar. 26, 2009), App. to Pet. for Cert. 41a-42a. To remedy the violation, the District Court ordered "specific performance of [respondent's] original plea agreement, for a minimum sentence in the range of fifty-one to eighty-five months." Id., at *9, App. to Pet. for Cert. 41a.
The United States Court of Appeals for the Sixth Circuit affirmed, 376 Fed. Appx. 563 (2010), finding "[e]ven full deference under AEDPA cannot salvage the state court's decision," id., at 569. Applying Strickland, the Court of Appeals found that respondent's attorney had provided deficient performance by informing respondent of "an incorrect legal rule," 376 Fed. Appx., at 570-571, and that respondent suffered prejudice because he "lost out on an opportunity to plead guilty and receive the lower sentence that was offered to him." Id., at 573. This Court granted certiorari. 562 U. S. ___ (2011).
Defendants have a Sixth Amendment right to counsel, a right that extends to the plea-bargaining process. Frye, ante, at 8; see also Padilla v. Kentucky, 559 U. S. ___, ___ (2010) (slip op., at 16); Hill, supra, at 57. During plea negotiations defendants are "entitled to the effective assistance of competent counsel." McMann v. Richardson, 397 U. S. 759, 771 (1970). In Hill, the Court held "the two part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel." 474 U. S., at 58. The performance prong of Strickland requires a defendant to show "'that counsel's representa tion fell below an objective standard of reasonableness.'" 474 U. S., at 57 (quoting Strickland, 466 U. S., at 688). In this case all parties agree the performance of respondent's counsel was deficient when he advised respondent to reject the plea offer on the grounds he could not be convicted at trial. In light of this concession, it is unnecessary for this Court to explore the issue.
The question for this Court is how to apply Strickland's prejudice test where ineffective assistance results in a rejection of the plea offer and the defendant is convicted at the ensuing trial.
To establish Strickland prejudice a defendant must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceed ing would have been different." Id., at 694. In the context of pleas a defendant must show the outcome of the plea process would have been different with competent advice. See Frye, ante, at 12 (noting that Strickland's inquiry, as applied to advice with respect to plea bargains, turns on "whether 'the result of the proceeding would have been different'" (quoting Strickland, supra, at 694)); see also Hill, 474 U. S., at 59 ("The . . . 'prejudice,' requirement . . . focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process"). In Hill, when evaluating the petitioner's claim that ineffec tive assistance led to the improvident acceptance of a guilty plea, the Court required the petitioner to show "that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial." Ibid.
In contrast to Hill, here the ineffective advice led not to an offer's acceptance but to its rejection. Having to stand trial, not choosing to waive it, is the prejudice alleged. In these circumstances a defendant must show that but for the ineffective advice of counsel there is a reasonable prob- ability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed. Here, the Court of Appeals for the Sixth Circuit agreed with that test for Strickland preju dice in the context of a rejected plea bargain. This is consistent with the test adopted and applied by other appellate courts without demonstrated difficulties or systemic disruptions. See 376 Fed. Appx., at 571-573; see also, e.g., United States v. Rodriguez Rodriguez, 929 F. 2d 747, 753, n. 1 (CA1 1991) (per curiam); United States v. Gordon, 156 F. 3d 376, 380-381 (CA2 1998) (per curiam); United States v. Day, 969 F. 2d 39, 43-45 (CA3 1992); Beckham v. Wainwright, 639 F. 2d 262, 267 (CA5 1981); Julian v. Bartley, 495 F. 3d 487, 498-500 (CA7 2007); Wanatee v. Ault, 259 F. 3d 700, 703-704 (CA8 2001); Nunes v. Mueller, 350 F. 3d 1045, 1052-1053 (CA9 2003); Williams v. Jones, 571 F. 3d 1086, 1094-1095 (CA10 2009) (per curiam); United States v. Gaviria, 116 F. 3d 1498, 1512-1514 (CADC 1997) (per curiam).
Petitioner and the Solicitor General propose a different, far more narrow, view of the Sixth Amendment. They contend there can be no finding of Strickland prejudice arising from plea bargaining if the defendant is later convicted at a fair trial. The three reasons petitioner and the Solicitor General offer for their approach are unper suasive.
First, petitioner and the Solicitor General claim that the sole purpose of the Sixth Amendment is to protect the right to a fair trial. Errors before trial, they argue, are not cognizable under the Sixth Amendment unless they affect the fairness of the trial itself. See Brief for Petitioner 12- 21; Brief for United States as Amicus Curiae 10-12. The Sixth Amendment, however, is not so narrow in its reach. Cf. Frye, ante, at 11 (holding that a defendant can show prejudice under Strickland even absent a showing that the deficient performance precluded him from going to trial). The Sixth Amendment requires effective assistance of counsel at critical stages of a criminal proceeding. Its protections are not designed simply to protect the trial, even though "counsel's absence [in these stages] may derogate from the accused's right to a fair trial." United States v. Wade, 388 U. S. 218, 226 (1967). The constitu tional guarantee applies to pretrial critical stages that are part of the whole course of a criminal proceeding, a pro ceeding in which defendants cannot be presumed to make critical decisions without counsel's advice. This is con sistent, too, with the rule that defendants have a right to effective assistance of counsel on appeal, even though that cannot in any way be characterized as part of the trial. See, e.g., Halbert v. Michigan, 545 U. S. 605 (2005); Evitts v. Lucey, 469 U. S. 387 (1985). The precedents also estab lish that there exists a right to counsel during sentencing in both non-capital, see Glover v. United States, 531 U. S. 198, 203-204 (2001); Mempa v. Rhay, 389 U. S. 128 (1967), and capital cases, see Wiggins v. Smith, 539 U. S. 510, 538 (2003). Even though sentencing does not concern the defendant's guilt or innocence, ineffective assistance of counsel during a sentencing hearing can result in Strick- land prejudice because "any amount of [additional] jail time has Sixth Amendment significance." Glover, supra, at 203.
The Court, moreover, has not followed a rigid rule that an otherwise fair trial remedies errors not occurring at the trial itself. It has inquired instead whether the trial cured the particular error at issue. Thus, in Vasquez v. Hillery, 474 U. S. 254 (1986), the deliberate exclusion of all African-Americans from a grand jury was prejudicial be- cause a defendant may have been tried on charges that would not have been brought at all by a properly constituted grand jury. Id., at 263; see Ballard v. United States, 329 U. S. 187, 195 (1946) (dismissing an indictment returned by a grand jury from which women were excluded); see also Stirone v. United States, 361 U. S. 212, 218-219 (1960) (reversing a defendant's conviction because the jury may have based its verdict on acts not charged in the indictment). By contrast, in United States v. Mechanik, 475 U. S. 66 (1986), the ...