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Abstract
In Missouri v. Frye and Lafler v. Cooper, the United States Supreme Court dramatically altered the landscape of the Sixth Amendment guarantee of effective assistance of counsel in the plea bargaining context by extending that right into the plea bargaining process itself. This Article establishes that after Frye and Lafler the failure to participate in the plea bargaining process violates the Sixth Amendment's guarantee of effective assistance of counsel and sets forth the appropriate analytical framework under which such claims should be analyzed.
Introduction
On January 17, 2004, in the City of Philadelphia, Tyrone Lewis was sitting in his car talking on his cell phone when a man named Ronald Smith approached him.1 Smith pointed a gun at Lewis ' s head, instructed him to start the car, and demanded that he get out.2 A few minutes later, Philadelphia Police observed Smith driving Lewis's car.3 After a short chase, during which Smith was observed discarding a loaded handgun, he was arrested.4 Smith was indicted on federal charges of carjacking, carrying a firearm during and in relation to a crime of violence, and being a felon in possession of a firearm.5 He was then appointed counsel.6
The prosecutor never offered a plea bargain, and defense counsel, in turn, never affirmatively initiated any plea bargaining discussions with the prosecutor.7 At this point, Smith had two options. One option was to enter a guilty plea to all of the charges, without the benefit of a plea bargain. A plea bargain could have resulted in either the dismissal of some charges, an agreed upon sentence, or both. Entering a guilty plea to all of the charges would have left his sentence entirely to the discretion of the judge, with the aid of the Federal Sentencing Guidelines.8 The second option was to risk it all and proceed to trial.9 Smith proceeded to trial by jury, and he was found guilty on all counts and sentenced to thirty years of incarceration.10
Following his conviction, Smith claimed that a third option should have been pursued: trial counsel should have sought a plea bargain on his behalf.11 Smith's contention was that his lawyer's failure to pursue a plea bargain essentially left him with two bad choices. Plead guilty to all...