Ineffective assistance of counsel - attorney does not convey plea offer to client
In Davie v. State, decided this month, the S.C. Supreme Court held that it is ineffective assistance of counsel when an attorney does not convey a plea offer to his client. In this case, counsel testified at the PCR hearing that he did not convey the state's plea offer of 15 years to his client because he was not aware of the plea offer until after it had expired. His testimony was that he was moving to a new office and the plea offer was lost in the mail.
Without ever hearing the original plea offer of 15 years, the defendant ended up pleading guilty to trafficking crack cocaine, third offense; distribution of crack cocaine, third offense; distribution of crack cocaine within proximity of a public park; conspiracy to violate the South Carolina drug laws; unlawful conduct toward a child; failure to stop for a blue light; driving under suspension, third offense; and child endangerment, and received a sentence of 27 years in prison.
The SCSCt held that the failure to communicate the original plea offer was deficient performance by the trial lawyer, and that under the facts of this case there was prejudice to the petitioner, the test being "whether but for counsel’s deficient performance a defendant would have accepted the State’s proposed plea bargain and that he would have benefited from the offer." In this case, Davie testified that he would have accepted the plea offer and, well, 15 instead of 27 is certainly a considerable benefit. The Court held that the remedy, rather than granting a new trial, was to remand the case for a new sentencing hearing. Although the Court cannot force the state to extend its original offer of 15 years, the petitioner's sentence cannot exceed 27 years.
I am curious as to whether on resentencing the solicitor's office will correct Davies' attorney's mistake and re-extend the original offer of 15 years. And, if they do not, isn't Davies' attorney now liable for 12 years of Davies' life? Although malpractice/ civil liability is certainly not my area of expertise, I think the answer is that he would not be liable - but should he be?
