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from trial undisturbed.” Deficient representation here was stipulated by the parties (counsel “inform[ed] respondent of ‘an incorrect legal rule’” – that he couldn’t be convicted because he shot the victim below the waist – that caused him to reject the State’s offer); the only issue before the Court is the formulation of a remedy, if any. The majority rejects the position of the government and four dissenters here that “there can be no finding of Strickland prejudice arising from plea bargaining if the defendant is later convicted at a fair trial.” Majority recognizes that the appropriate remedy may involve only a lesser sentence; or, if a plea to a lesser offense was offered, “a resentencing based on the conviction at trial may not suffice. … In implementing a remedy in both of these situations, the trial court must weigh various factors; and the boundaries of proper discretion need not be defined here. Principles elaborated over time in decisions of state and federal courts, and in statutes and rules, will serve to give more complete guidance as to the factors that should bear upon the exercise of the judge's discretion. At this point, however, it suffices to note two considerations that are of relevance. First, a court may take account of a defendant's earlier expressed willingness, or unwillingness, to accept responsibility for his or her actions. Second, it is not necessary here to decide as a constitutional rule that a judge is required to prescind (that is to say disregard) any information concerning the crime that was discovered after the plea offer was made. The time continuum makes it difficult to restore the defendant and the prosecution to the precise positions they occupied prior to the rejection of the plea offer, but that baseline can be consulted in finding a remedy that does not require the prosecution to incur the expense of conducting a new trial.” Roberts, Scalia, Thomas and Alito dissent. Scalia, writing for Roberts and Thomas, decries the creation of “a whole new field of constitutionalized criminal procedure: plea-bargaining law,” a predicts that the announcement of constitutional standards for defense counsel’s behavior will “be followed by rules governing the prosecution' s behavior in the plea-bargaining process.” “Is it constitutional, for example, for the prosecution to withdraw a plea offer that has already been accepted? Or to withdraw an offer before the defense has had adequate time to consider and accept it? Or to make no plea offer at all, even though its case is weak—thereby excluding the defendant from ‘the criminal justice system’?” See Maines (October 29, 2014), above (ineffective assistance didn’t require State to reoffer previously-rejected plea deal). Missouri v. Frye, 10-444, ___ U.S. ___, 132 S.Ct. 1399, 182 L.Ed.2d 379, 2012 WL 932020 (March 21, 2012). In prosecution for driving with revoked license, counsel’s representation was deficient where he failed to advise defendant of State’s plea offer to a lesser charge in time to accept that offer. Defendant ultimately pled guilty to the greater charge with no State’s recommendation, and received a much longer jail sentence. 1. “The initial question is whether the constitutional right to counsel extends to the negotiation and consideration of plea offers that lapse or are rejected.” Majority answers in the affirmative, quoting Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (March 31, 2010): “the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel.” Notes that “[n]inety-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.” Without attempting to fully define the obligations of counsel in the plea-bargain process, the “Court now holds that, 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. Any exceptions to that rule need not be explored here, for the offer was a formal one with a fixed expiration date. When defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.” Suggests that prosecutors and courts adopt practices “to help ensure against late, frivolous, or fabricated claims after a later, less advantageous plea offer has been accepted or after a trial leading to conviction with resulting harsh consequences”: document terms and processing of formal offers; enact rules requiring all offers to be in writing; make them part of the record at any plea proceeding or before trial. 2. “ If there is a right to effective assistance with respect to those offers, a further question is what a defendant must demonstrate in order to show that prejudice resulted from counsel's deficient performance.” “To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law. To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.” How to assess likelihood that the offer would have been withdrawn by the State or rejected by the court? “It can be assumed that in most jurisdictions prosecutors and judges are familiar with the boundaries of acceptable plea bargains and sentences. So in most instances it should not be difficult to make an objective assessment as to whether or not a particular fact or intervening circumstance would suffice, in the normal course, to cause prosecutorial