If there was failure to recommend a plea bargain in a Connecticut habeas corpus case due to incompetence, a person may use this as a factor in a habeas corpus petition. You can learn more about how to rectify this failure here.

Casework

The Strickland standard also applies when a defendant has rejected a plea bargain due to the erroneous advice of defense counsel. Lafler v. Cooper, 566 U.S. , 132 S.Ct. 1376 (2012). Under the performance prong, the petitioner must establish, “‘that counsel’s representation fell below an objective standard of reasonableness.’” See Lafler v. Cooper, 566 U.S. at , 132 S.Ct at 1384 (quoting Strickland, 466 U.S. at 688). Put differently, the petitioner must show that defense counsel’s assistance was not, “reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law” and but for the erroneous advice, the petitioner would have accepted the plea bargain, thus avoiding trial and the harsher punishment which followed.

See Ebron v. Commissioner, 307 Conn. 342, 351-52 (2012), cert. denied in part on other grounds sub. nom., Arnone v. Ebron, U.S., 133 S.Ct. 1726 44 (2013); see also Myers v. Manson, 192 Conn. 383, 394 (1984); Buckley v. Warden, 177 Conn. 538, 542-43 (1979)(there must be “an interrelationship” between the ineffective assistance and the petitioner’s decision); Perez v. Commissioner, 80 Conn. App. 96, 99, cert. denied , 266 Conn. 954 (2003); Baillargeon v. Commissioner, 67 Conn. App. 716, 721-22 (2002).

Prejudice Prong

Under the prejudice prong, the petitioner must establish, “‘that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” Lafler , 566 U.S. at , 132 S.Ct at 1384 (quoting Strickland, 466 U.S. at 694).

“In the context of pleas [the petitioner] must show the outcome of the pleas process would have been different with competent advice.” Id. , 132 S.Ct at 1384. More specifically, the petitioner, “must show that but for the ineffective advice of counsel there is a reasonable probability 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 judgment and sentence that in fact were imposed.” Id. at , 132 S.Ct. at 1385; see also Ebron v. Commissioner, 307 Conn. at 351-57.

Remedy

The remedies enunciated in Missouri v. Frye, supra, 566 U.S. , 132 S.Ct. 1399, and Lafler v. Cooper, supra, 566 U.S. , 132 S.Ct. 1376, when both Strickland prongs have been met, are less than crystal clear. See Ebron, 307 Conn. at 354-56. Where the petitioner was convicted at trial of the same charge that was embodied in the plea bargain, the trial court, upon remand and after consideration of the offense and the petitioner’s character, background and history, see Practice Book §§ 39-7 to 39-9 (conditional acceptance of plea bargain).

Practice Book § 43-3, et seq. (PSI), can either let the sentence stand, impose the sentence contained in the plea bargain, or fix the sentence somewhere in between the two. Where the petitioner was convicted at trial of a charge more serious than that embodied in the plea bargain, the trial court, upon remand and after consideration of the offense and the petitioner’s character, background and history, see Practice Book §§ 39-7 to 39-9 (conditional acceptance of plea bargain).

Practice Book § 43-3, et seq. (PSI), can either accept a plea to the charge embodied in the plea bargain and sentence in accordance with the plea bargain, or refuse the plea bargain and place the case on the trial list. Lafler, 566 U.S. at , 132 S.Ct. at 1388-89; see also Ebron, 307 Conn. at 357-59; H.P.T. v. Commissioner, 310 Conn. 606, 611-16 (2013); McMillion v. Commissioner, 151 Conn. App. 861, 872-76 (2014).