Anthony Cooper is far from the most sympathetic litigant before the Supreme Court this term.  In 2003, Cooper shot a woman four times as she ran away from him, hitting her twice in the buttocks, once in the hip, and once in the right side of her abdomen.  His victim survived, but required a three-week-long hospital stay.  Cooper was charged with assault with intent to murder, among other offenses.  He was convicted of all charges and sentenced to at least 15 years in prison.

Though Cooper’s behavior was by all accounts egregious, his attorney’s conduct was pretty bad as well.  Before trial, the prosecution offered Cooper a favorable plea deal, recommending a term of years well below that which Cooper would have likely received if convicted at trial.  Cooper’s attorney advised him, however, to turn the deal down because, in his opinion, Cooper could not be convicted of the charged offenses, having shot his victim below the waist.  If that argument seems silly, it’s because it is.  The advice Cooper received was patently false, and as an appellate court later declared, “objectively unreasonable.”  Eschewing the plea deal, Cooper was convicted of assault and sentenced to a term of years greater than the minimum sentence he would have received under the proffered plea.  Cooper appealed, alleging ineffective assistance of counsel.  The Sixth Circuit overturned Cooper’s conviction and ordered the State to either re-offer the plea deal or release Cooper from prison.

Cooper’s case begs the following question: when a criminal defendant turns down a plea deal based on his attorney’s ignorance of the law and subsequently receives a harsher sentence after trial, can he seek to overturn his sentence, alleging ineffective assistance of counsel?

Perhaps not.  To make out a claim for ineffective assistance of counsel, a defendant must show that he was deprived of a “substantial or procedural right to which the law entitles him.” Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).  It is not clear what right Cooper was deprived of.  Cooper had no constitutional right to a plea bargain.  Indeed, even if such a bargain were reached, there was no guarantee that a judge would have accepted it.  In the plea-deal context, the prosecution merely recommends a sentence to the judge, who remains free to impose a harsher sentence if she so chooses.  It is a distinct possibility that Cooper could have accepted the deal only to have the judge impose the very same sentence he is now contesting.

The approach described above, however, may be overly formalistic.  Cooper points out that ineffective counsel can negate a guilty plea, as the Supreme Court ruled in Padilla v. Kentucky, 130 S. Ct. 1473 (2010).  Why then shouldn’t ineffective counsel negate a not-guilty plea?  The State would point to the fact that by pleading guilty, a defendant gives up his constitutional right to a trial.  By pleading not guilty, however, a defendant gives up nothing.  Rather, by pleading not guilty, a defendant is asserting his constitutional right to a trial.  But is that distinction satisfying?  Both Padilla and Cooper received bad advice.  Both Padilla and Cooper would have altered their decision had they been provided with competent advice.  Yet only Padilla gets a do-over?  The result may follow from existing precedent, but a tinge of unfairness remains.  The Supreme Court has the chance to rectify that unfairness by structuring a new rubric for ineffective counsel claims in the coming months.  Many are hoping that they do.