Ineffective Assistance of Counsel: A Plea Bargain Lost

This Note addresses the controversial moral and legal issues presented when ineffective assistance of counsel occurs at the plea bargaining stage of a criminal prosecution.Specifically, this Note focuses on the situation where a criminal defendant lost an opportunity to accept a pre-trial plea bargain offer, due solely to defense counsel's negligence, and later, after a fair trial and a conviction, received a more severe sentence than the sentence contemplated by the lost plea bargain.Two central questions are presented in these situations and addressed in this Note.First, has such a defendant been constitutionally harmed by the loss of the plea bargain?Second, what if any is the appropriate remedy in these cases?This Note concludes that while the law in California is presently unsettled in this area, the United States Constitution, as well as the rulings from various state and federal courts, suggests that such a defendant has indeed been constitutionally harmed, and the only remedy which will adequately compensate the defendant for this injury is the forced reinstatement of the lost plea bargain.People v. Pollard. 2 These two cases presented nearly identical fact patterns.Each involved a claim by the defendant that the ineffective assistance of 1. 282 Cal.Rptr.601 (Cal.Ct.App.1991), cert.granted, 818 P.2d 61 (Cal.Oct. 17, 1991).2. 282 Cal.Rptr.588 (Cal.Ct.App.1991), cert.granted, 818 P.2d 61 (Cal.Oct. 17, 1991).