Friday, December 28, 2012
CCA Judge Thomas Dissent on failure to advise state of defendant's acceptance of plea
In State v. Pye, Judge Kelly Thomas disagrees "with the majority’s conclusion that trial counsel’s actions regarding the Petitioner’s acceptance of the plea agreement did not amount to ineffective assistance of counsel. With respect to the Petitioner’s remaining issue, I concur with the majority’s decision."
As a general rule, “defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.” Missouri v. Frye, --- U.S. ---, 132 S. Ct. 1399, 1408 (2012). By allowing a plea agreement offer “to expire without advising the defendant or allowing him to consider it,” defense counsel renders constitutionally ineffective assistance to the defendant. Id. The converse had also been held to be true, “that defense counsel does have a duty to communicate an accepted plea to the State in a timely manner, i.e., before the plea offer expires.” Randle v. State, 847 S.W.2d 576, 580 (Tex. Crim. App. 1993); see also United States v. Gonzalez-Vazquez, 219 F.3d 37, 41-42 (1st Cir. 2000) (finding that the defendant likely had a claim for ineffective assistance of counsel where his defense counsel failed to accept a plea offer as instructed, allowing the offer to lapse); cf. Nichols v. State, 683 S.E.2d 610, 613 (Ga. 2009) (concluding that defense counsel was not ineffective in failing to communicate the defendant’s decision to accept a plea agreement where defendant did not make decision until after the offer had lapsed). To hold otherwise would mean that defense counsel’s duty to communicate plea offers to the defendant “would have no point if the duty to communicate the acceptance of the plea offer to the State is not also in place.”