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Effective Assistance of Counsel in the Plea Negotiation Process

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A defendant has the right to effective assistance of counsel during the plea negotiation process.

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By Attorney Elisabeth K.H. Pasqualini, Post Conviction Counsel, Harrisburg, PA

A criminal defendant has the right to effective counsel during a plea process as well as during trial.  In the context of reviewing a claim of ineffective assistance of counsel, certain decisions regarding the exercise or waiver of basic trial rights are of such moment that they cannot be made for the defendant by a surrogate. Thus, a defendant has the ultimate authority to determine whether to plead guilty, and an attorney must both consult with the defendant and obtain consent to the recommended course of action.  There are two U.S. Supreme Court cases on this point.  Lafler v. Cooper and Missouri v. Frye.

The Burden is on the Defendant to show a Manifest Injustice


Allegations of ineffective assistance of counsel in connection with the entry of a guilty plea will serve as a basis of relief only if the ineffectiveness caused the accused to enter an involuntary or unknowing plea.  Central to the question of whether a defendant's plea was entered voluntarily and knowingly is whether the defendant knew and understood the nature of the offenses charged, which should be explained in as plain a fashion as possible.  The law does not require that an appellant be pleased with the outcome of his or her decision to enter a plea of guilty; instead, the defendant must show that counsel's deficient stewardship resulted in a manifest injustice, for example, by facilitating the entry of an unknowing, involuntary, or unintelligent plea.

Any Plea must be made Voluntarily, Intelligently, and Knowingly- Deportation Matters


When the defendant enters a plea on the advice of counsel, the voluntariness of the plea, for purposes of an ineffective assistance claim, depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases.  If trial counsel competently has explained the possible consequences of going to trial, rather than pleading guilty, the decision to plead will be found to be well reasoned and voluntary even if the decision is motivated by a desire to avoid a greater penalty than might be imposed following a trial. Thus, counsel's focusing on the death penalty in advising the defendant to plead guilty does not improperly coerce the plea of guilty to second-degree murder.  Stated otherwise, counsel has a duty to explain the relative advantages and disadvantages of accepting or rejecting a plea offer and the failure to do so may render counsel ineffective.  Given the intimate connection between criminal activity and deportation, deportation cannot be removed from the ambit of the right to counsel, specifically, a counsel's obligation to explain the consequences of a guilty plea.   

There is Authority for the proposition that the Right to Effective Assistance of Counsel begins at the pre-indictment stage

Although the U.S. Supreme Court has established a "bright line" test that the right to counsel begins after indictment, several U.S. circuit courts and district courts have held that the possibility that the right to counsel migh conceivably attach before any formal charges are made.  Roberts v. Maine; U.S. v. Burgess; U.S. v. Moody.

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