Preventing Ineffective Assistance of Counsel: Advice Regarding Plea Offers - Articles

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Posted by: Wade Davies on Mar 1, 2013

Journal Issue Date: Mar 2013

Journal Name: March 2013 - Vol. 49, No. 3

Whether to accept or reject a plea offer is one of the decisions the client, rather than counsel, must make.[1] The criminal defense lawyer, however, faces a heavy responsibility to make sure that decision is made knowingly, voluntarily and intelligently. Both the Tennessee Supreme Court and the United States Supreme Court have noted ways in which counsel can fall short of providing constitutionally effective assistance of counsel during the pre-trial stages of criminal cases. A constitutional deprivation occurs when counsel fails to advise a criminal defendant of direct consequences either of accepting or rejecting a plea, or provides erroneous advice. That seems simple enough, but because of the many changes and additions to the criminal statutes in Tennessee over the past 20 years, it is not always easy to figure out the potential sentences and thus the potential consequences of either accepting or rejecting a potential guilty plea. The purpose of this article is to outline some of the most important statutory provisions counsel may need to consider in advising a client pre-trial regarding the potential consequences of accepting or rejecting a plea offer.

The Right to Effective Assistance of Counsel Pre-Trial

Last year, the United States Supreme Court ruled in companion cases that the constitutional right to the effective assistance of counsel applies pre-trial during the plea negotiation stage.[2]

In Missouri v. Frye, the court found ineffective assistance of counsel where defense counsel had not explained a plea offer to the client, and the offer lapsed. The defendant accepted a less favorable plea agreement later. The court affirmed that there is a right to effective assistance of counsel based on its ruling and its description of the modern criminal justice system:

Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. … The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages.[3]

The court had previously found a constitutional violation where defense counsel improperly advised the client regarding immigration consequences, in Padilla v. Kentucky.[4]
Frye dealt with a situation in which defense counsel failed to inform the defendant of a plea offer. The companion case, Lafler v. Cooper, addressed a situation that probably happens more often: defense counsel misadvised the defendant of the consequences of the proposed plea. In Lafler, the defendant was offered a favorable plea deal. The defendant was charged with assault with intent to murder and other felonies. He was offered a plea agreement in which the prosecution would recommend a 51-85 month sentence. The defendant rejected the offer after his attorney erroneously told him that the state would be unable to prove an intent to murder because the victim was shot below the waist. There is no such rule or defense. The defendant went to trial, was convicted, and received a sentence of 185 to 360 months imprisonment.[5] While the attorney’s advice in Lafler seems outrageous, erroneous advice regarding sentencing consequences of a plea or of refusing a plea could cause a client just as much trouble as the unusual advice given in Lafler.

The prosecution took the position that the fact that the defendant received a fair trial before being convicted precluded the argument that the defendant was prejudiced by the ineffective assistance of counsel. The government argued that the purpose of the right to counsel is to protect the right to a fair trial and since the defendant had gotten a fair trial there was no harm done. The majority rejected that contention:

The Sixth Amendment requires effective assistance of counsel at critical stages of a criminal proceeding. Its protections are not designed simply to protect the trial, even though “counsel’s absence [in these stages] may derogate from the accused’s right to a fair trial.”[6] The constitutional guarantee applies to pretrial critical stages that are part of the whole course of a criminal proceeding, a proceeding in which defendants cannot be presumed to make critical decisions without counsel’s advice.[7]

The reason that Lafler is the more significant decision for Tennessee practitioners is that, given the patchwork of statutes we have, it is not difficult to misadvise a defendant about the sentencing consequences of accepting a plea or of rejecting it.

Tennessee Case Law

Two recent cases emphasize the importance of adequately explaining the potential consequences of a plea agreement. The Tennessee Supreme Court has held that the fact that a sex offender would be subject to the imposition of a sentence of community supervision for life pursuant to Tenn. Code Ann. § 39-13-524 is a direct consequence of a plea and that failure to warn the defendant of that possibility rendered the plea unconstitutional.[8] In Ward v. State, the Supreme Court dealt with a failure of the trial court to warn (and noted that the claim of ineffective assistance of counsel was mooted by its holding).[9] The court held that failure to advise about sex offender registration was not a direct consequence and did not create a constitutional violation.

In State v. Nagele, the court confirmed that accurate advice regarding community supervision for life is required and found that counsel’s general discussion about the possibility that the mandatory penalty of lifetime supervision would apply was not sufficient to cure the trial court’s failure to warn the defendant at the time of the plea.[10]

While these cases make clear that defense counsel must ensure that the client is accurately informed of the potential consequences of pleading guilty or of rejecting a plea, figuring out those consequences is challenging.

The Tennessee Statutory Framework

In 1989, the General Assembly revamped the criminal code and sentencing provisions. The idea behind the Sentencing Reform Act was fairly simple. To figure out the potential consequences for a given offense, you needed to know the class of the offense and the range of the offender based on criminal history. Then you knew the potential sentences for a given offense.[11] The Tenn. Code Ann. even contained a simple chart setting out the potential sentences for a given class of offense within each range.[12]

Since 1989, however, there have been so many additions to the criminal code that reliance on that chart to advise clients may be malpractice. The problem is that there are now sentencing provisions in several different places. You have to do a thorough search before you can be at all confident in advising a client about potential sentences and other consequences.

Sentencing Provisions Within the Substantive Definition of the Offense

First you have to look at the substantive definition of the offense. It used to be that Title 39 defined the elements of the offenses and set out the class of offense and Title 40 contained the punishment for offenses of that class.[13] Some substantive statutes now contain sentencing provisions that do not apply to other offenses of the same class. A recent example is the domestic assault statute. Unlike other Class A misdemeanors, it contains recitivist provisions that set out mandatory jail time and other requirements.[14]

Driving under the influence is another example. Unlike other Class A misdemeanors, it carries mandatory jail time and a host of other sentencing provisions unique to DUI. These sentencing provisions are found within the substantive provision of the statute.

So, you cannot assume that because you know the class of an offense you know the sentences that can be imposed.

Sex Offender Registration

When the Sentencing Reform Act was passed, there was no sex offender registration requirment. It is crucial to examine the sex offender registration provisions before advising a client on the consequences of either accepting or rejecting a plea.

Whether a convicted defendant will have to register is generally defined at Tenn. Code Ann. 40-39-202(20). Be careful here because there are some offenses such as kidnapping or false imprisonment where the victim is a minor that do not sound like sexual offenses but that impose a registration requirement.[1]5

There is also a huge difference between statutes that require at least 10 years of registration and those that carry lifetime registration.[16]

As if that were not complicated enough, there is now a statute that has sex offender registration possibilities listed in the substantive provisions of Title 39 rather than the registration act. As of 2012, the statutory rape statute gives discretion to the trial court to require registration.[17]

You need to recheck this every time you have a case. The standards change regularly. In 2010, the Tennessee Supreme Court noted that the General Assembly had amended the registration act at least 15 times since 2005.[18]

Meth Registry

Tenn. Code Ann. § 39-17-436 requires the registry of any person convicted after March 30, 2005, of certain meth-related violations. While the Tennessee Supreme Court might not think this a direct consequence of the plea giving rise to potential ineffective assistance claims, your clients might think so.

Community Supervision for Life

In addition to registration, some sexual offenses carry community supervision for life, which is different from and in addition to parole and sex offender registration.[19] This provision has caused many people to receive bad advice. Community supervision for life is mandatory for listed offenses, but after the statute was passed, many judgments went down without the requirement, leading lawyers and judges to fail to advise defendants that it is mandatory.[20]

Offenses for Which There Is No Parole

Always check to see whether the offense with which the defendant is charged or any proposed plea renders the defendant ineligible for parole. A 20-year sentence means something entirely different depending on whether a defendant is eligible for parole after 30 percent or is never eligible. The list is found at Tenn. Code Ann. Section 40-35-501. No matter what your clients’ friends in jail say, this statute has not been repealed, nor is it likely to be repealed. Application of these provisions makes the old sentencing chart incorrect. The chart contains release eligibility dates. For example, a Range I offender would be eligible for release after 30 percent of the sentence. If the statute is listed in section 40-35-501, that release eligibility does not apply.

No Sentencing Credits

Sometimes even if there is no release eligibility date, the defendant can still get out after serving 85 percent of the sentence; however, sometimes even the 15 percent credit is not available:

… a child sexual predator, aggravated rapist, multiple rapist or a child rapist shall be required to serve the entire sentence imposed by the court undiminished by any sentence reduction credits the person may be eligible for or earn.[21]

Consecutive Sentencing

Rule 32 of the Tennessee Rules of Criminal Procedure and several Tennessee statutes govern when consecutive sentencing is either appropriate or required.[22] One common occurrence requiring consecutive sentencing is when a defendant picks up new charges while on release from other charges.[23]


The courts are undoubtedly correct that a defendant should be properly advised about the possible direct consequences of accepting a guilty plea or not accepting one. In Tennessee, making sure you give clients proper advice requires searching high and low in the Tenn. Code Ann. Refering to the statute defining the crime as well as the sentencing provisions listed above should assist you in giving the client some degree of confidence in your advice. While not an exhaustive list, the following might help:

  • Read every word of the statute defining the offense to find special sentencing provisions.
  • Determine the Class of offense and the Range of the offender.
  • Are there provisions prohibiting probation or diversion?
  • Is this an offense for which there is no parole?
  • Is this an offense for which there are no sentencing credits?
  • Is it a registry offense?
  • Lifetime registration?
  • Immigration consequences?[24]
  • Community supervision for life?


  1. Rule 1.2(a), Tennessee Rules of Professional Conduct. (“In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial, and whether the client will testify.”)
  2. Missouri v. Frye, ___ U.S. ___, 132 S.Ct. 1399 (2012); Lafler v. Cooper, ___ U.S. ___, 132 S.Ct. 1376 (2012).
  3. Missouri v. Frye,  132 S.Ct. 1399, 1407 (2012).
  4. Padilla v. Kentucky, 559 U.S. ––––, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010).
  5. Lafler v. Cooper,  132 S.Ct. 1376, 1383 (2012).
  6. United States v. Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).
  7. Id. at 1385. In dissent, Justice Scalia made a strong argument that there is no constitutional right to plea bargain and therefore no constitutional right to effective plea bargaining counsel. He argued that this “right” is basically made up because of the majority’s view of the current practices in criminal courts:

    Justice Scalia dissented:

    In many — perhaps most — countries of the world, American-style plea bargaining is forbidden in cases as serious as this one, even for the purpose of obtaining testimony that enables conviction of a greater malefactor, much less for the purpose of sparing the expense of trial.

    In the United States, we have plea bargaining a-plenty, but until today it has been regarded as a necessary evil. It presents grave risks of prosecutorial overcharging that effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense; and for guilty defendants it often—perhaps usually—results in a sentence well below what the law prescribes for the actual crime. But even so, we accept plea bargaining because many believe that without it our long and expensive process of criminal trial could not sustain the burden imposed on it, and our system of criminal justice would grind to a halt. See, e.g., “Alschuler, Plea Bargaining and its History,” 79 Colum. L.Rev. 1, 38 (1979).

    Today, however, the Supreme Court of the United States elevates plea bargaining from a necessary evil to a constitutional entitlement. It is no longer a somewhat embarrassing adjunct to our criminal justice system; rather, as the court announces in the companion case to this one, “ ‘it is the criminal justice system.’ ” Frye, ante, at 1407, 132 S.Ct. 1399 … Thus, even though there is no doubt that the respondent here is guilty of the offense with which he was charged; even though he has received the exorbitant gold standard of American justice — a full-dress criminal trial with its innumerable constitutional and statutory limitations upon the evidence that the prosecution can bring forward, and (in Michigan as in most States) the requirement of a unanimous guilty verdict by impartial jurors; the court says that his conviction is invalid because he was deprived of his constitutional entitlement to plea-bargain.

    Lafler v. Cooper, 132 S.Ct. 1376, 1397 -1398 (2012)(Scalia, J., dissenting).
  8. Ward v. State,  315 S.W.3d 461, 476 (Tenn. 2010).
  9. Id. at 477.
  10. State v. Nagele, 353 S.W.3d 112, 120 (Tenn. 2011)
  11. For a discussion of how the Sentencing Reform Act operates after the significant 2005 amendments, see, David L. Raybin, “The Blakely Fix: New Tennessee Law Restores Judicial Discretion in Criminal Sentencing,” Tennessee Bar Journal, vol. 41, no. 7 (July 2005).
  12. Tenn. Code Ann. § 40-35-101.
  13. There are, of course, criminal provisions in other titles, such as the Driving Under the Influence provisions in Title 55.
  14. Chapter 987, Public Acts 2012, amended Tenn. Code Ann. § 39-13-111 to require minimum mandatory sentences.
  15. Tenn. Code Ann. § 40-39-202(20)(A)(v) & (vi).
  16. Tenn. Code Ann. § 40-39-207.
  17. Tenn. Code Ann. § 39-13-506(d)(2)(B)(“In addition to the punishment provided for a person who commits statutory rape for the first time, the trial judge may order, after taking into account the facts and circumstances surrounding the offense, including the offense for which the person was originally charged and whether the conviction was the result of a plea bargain agreement, that the person be required to register as a sexual offender pursuant to title 40, chapter 39, part 2.”)
  18. Ward v. State,  315 S.W.3d 461, 472 (Tenn. 2010).
  19. Tenn. Code Ann. § 39-13-524.
  20. See, Ward v. State,  315 S.W.3d 461 (Tenn. 2010).
  21. Tenn. Code Ann. § 39-13-523
  22. Hon. W. Mark Ward, Tennessee Criminal Trial Practice, West (2012-13), § 28:36.
  23. Tenn. R. Crim. P. 32(c).
  24. Immigration consequences are beyond the scope of this article, but counsel should determine the citizenship of every client in a criminal case to determine whether an immigration law consultation is required.

Wade Davies WADE DAVIES is the managing partner at Ritchie, Dillard, Davies & Johnson PC in Knoxville. He is a 1993 graduate of the University of Tennessee College of Law. The majority of his practice has always been devoted to criminal defense. Davies is a member of the Tennessee Bar Journal Editorial Board.