What if my lawyer never told me about a plea offer before it expired?

A lawyer’s failure to tell a client about a formal, favorable plea offer before it expired can raise an ineffective-assistance claim. But proving the offer was missed is only part of the analysis. The person must also show a reasonable probability they would have accepted it, the prosecution would have honored rather than withdrawn the offer, the court would have approved the plea, and the result would have been more favorable than what happened. A missed offer does not automatically restore the bargain. (Missouri v. Frye and Lafler v. Cooper)

Reconstruct the offer and what counsel communicated

Look for the written offer, its terms and expiration date, emails or letters with the prosecutor, counsel’s notes, and any messages about the offer. Compare those records with the actual plea, verdict, and sentence. A tentative discussion or negotiation idea may not be the formal favorable offer addressed in Frye. The question is what the prosecutor proposed, whether it was still available, and whether counsel communicated it in time for a decision.

Then assess prejudice separately. In Frye, the Supreme Court recognized counsel’s duty to communicate formal offers and required a case-specific showing of what likely would have happened if the offer had been conveyed. The analysis includes the defendant’s likely acceptance, the prosecution’s adherence to the offer, likely court approval, and whether the disposition would have been more favorable. Intervening events or terms that the prosecutor or court would not have accepted can matter. (Missouri v. Frye)

A later statement alone may not prove willingness to accept

California’s In re Alvernaz involved a defendant who said he would have accepted a plea if counsel had advised him differently. The court required independent, objective evidence corroborating that later assertion in the postconviction setting. Although that case involved advice about rejecting an offer, it helps explain why a later recollection alone may not establish that a defendant would have accepted a deal. Contemporaneous messages, notes, or other conduct may help show what the defendant was prepared to do before the offer expired. (In re Alvernaz)

The remedy depends on the record and case posture

If a claim succeeds, the remedy is tailored to the injury. Lafler describes a possible order requiring the prosecution to reoffer a plea, followed by the trial court’s own decision about whether to accept it and what sentence to impose. A court does not automatically impose the original deal or order immediate release. (Lafler v. Cooper) Whether the case is still pending, on appeal, or final affects what procedure counsel should evaluate; do not assume one universal filing deadline or collateral route.

Gather the offer and deadline, communications, counsel file, later disposition, and evidence of contemporaneous willingness to accept. The Law Offices of David S. Chesley represents people facing California criminal charges. Read about the firm’s plea negotiation representation or call (800) 755-5174 to discuss the offer history and current case posture.