Plea bargain failures are one element in Connecticut habeas corpus cases. Learn more on this page.

Practice Book § 39-3 provides that, “[d]efense counsel…shall insure that the decision to dispose of the case or to proceed to trial is ultimately made by the defendant.” While clear, there is issue here. The provision doesn’t indicate whether counsel has an obligation to specifically recommend the acceptance or rejection of a particular plea bargain. The ABA Standards for Criminal Justice, for their part, while emphasizing that no recommendation should happen without, “appropriate investigation and study of the case,” see ABA Standards for Criminal Justice, Defense Function (3^rd Ed. 1993), Standard 4-6.1(b); Pleas of Guilty (3rd Ed. 1999), Standard 14-3.2(b), fall short of obligating counsel in the first instance to make a recommendation.

Plea Bargain Discussions

Consequently, whether defense counsel, in fully discussing a plea bargain with the defendant, must also tell the defendant what decision to make, is a thorny issue. In Purdy v. United States, 208 F.3d 41 (2^nd Cir. 2000), the Second Circuit observed that there is no, “per se rule that defense counsel must always expressly advise the defendant whether to take a plea offer.” Id. at 48. The Court concluded that counsel is not deficient if he or she informs the client “of the strength of the government’s case against him, together with the nature of the government’s plea offer, without specifically advising [the client] to take the plea.” Id. Purdy got cited with approval in Edwards v. Commissioner, 87 Conn. App. 517, 523-25 (2005).

There, defense counsel thoroughly discussed the plea negotiations with the defendant. They expressed an opinion on what the defendant should do. But, told the defendant he would have to make his own decision. The Connecticut Appellate Court found that counsel’s assistance was not deficient. Id. at 520-25. Subsequently, in Vazquez v. Commissioner, 123 Conn. App. 424 (2010), cert. denied, 302 Conn. 901 (2011), the Appellate Court made clear that there is no requirement that counsel advise the defendant to accept a plea bargain. Id. at 437.

Defense Counsel and Strickland Issues

More recently, in Barlow v. Commissioner, 150 Conn. App. 781 (2014), where defense counsel was found deficient under Strickland for failing to give any advice whatsoever on the plea bargain, the Appellate Court stated: “Counsel should not make the decision for the defendant or in any way pressure the defendant to accept or reject the offer, but counsel should give the defendant his or her professional advice on the best course of action given the facts of the particular case and the potential total sentence exposure.” Id. at 800 (emphasis in original). Barlow was distinguished on its facts in Andrews v. Commissioner, 155 Conn. App. 548, 553 -55, cert. denied, 316 Conn. 911 (2015).

There, the habeas record revealed that trial counsel advised the petitioner of the strengths and weaknesses of the prosecution’s case. It also advised of the charges the petitioner was facing and the maximum penalties if convicted at trial. Also, it advised of the strong likelihood of receiving a sentence in excess of the plea offer. The record further revealed that trial counsel told the petitioner that the State’s case was strong and that it would be difficult for the petitioner to win. Id. at 554-55. The Appellate Court found that, “[a]lthough trial counsel left the ultimate decision of whether to accept or to reject the offer to the petitioner, he provided the petitioner with adequate professional advice on the options and best course of action…” Id. at 555.

Connecticut Law

Accordingly, Connecticut law suggests, if not indicates, that while defense counsel need not tell the defendant what decision to make, counsel should discuss with the defendant the risks and benefits of a trial and the decision that appears to be in his or her best interest. This will require counsel to explain the strengths and weaknesses of the State’s case, the likelihood of a conviction at trial, the potential penalties at stake, and the benefits, if any, offered by a plea bargain. The failure to do this may give rise to a claim of ineffective assistance of counsel. Strickland prejudice must be proven with regard to any such claim. See Barlow v. Commissioner, 150 Conn. App. at 802-05.

The failure to recommend an exceptional offer by the prosecution is ripe for collateral attack. See Barlow, 150 Conn. App. at 795 (“The cases which have found defense counsel wanting for failure to recommend acceptance of a plea offer have typically involved hopeless cases where going to trial was ‘suicidal’ and where the disparity between the plea offer and the potential sentence after trial was enormous”); see, e.g. Turner v. Tennessee, 664 F.Supp. 1113 (M.D.Tenn. 1987)(petitioner, who was convicted at trial and received life imprisonment, was denied effective assistance of counsel by trial counsel’s failure to advise petitioner to accept the prosecution’s offer of two- years jail), aff’d 858 F.2d 1201, 1204-08 (6^th Cir. 1988), rev’d & remanded 492 U.S. 902 (1989), orig. op. aff’d on remand 940 F.2d 1000 (1991).