Massachusetts Law Review

Case & Statute Comments - Effective Assistance of Counsel During Plea Negotiations

Commonwealth v. Mahar, 442 Mass. 11 (2004).

Introduction

The Supreme Judicial Court’s (“SJC”) majority and concurring opinions in Commonwealth v. Mahar1 call to mind a famous New Yorker cartoon. The (perhaps apocryphal) cartoon, which evokes the difficult issue the case raised, showed counsel table after a guilty verdict had been returned. As the court officer approached from behind with cuffs at the ready, the obviously unhappy defendant said to his attorney, “Where do we go from here?,” and was told, “Me? I go back to the office. You go to jail.”

Richard Mahar had unsuccessfully moved for a new trial, alleging that, but for the poor legal advice of his trial counsel, he would have accepted the commonwealth’s plea offer instead of standing trial.2 Although the SJC upheld the denial of that motion, the majority, in a decision by Justice Cordy, recognized and embraced other jurisdictions’ conclusion that, when a defendant rejects a plea offer because of the constitutionally inadequate advice of trial counsel, the subsequent receipt of a fair trial “does not ameliorate the constitutional harm that occurred in the plea consideration process.”3 Although concurring with the court’s denial of the new trial motion, Justice Sosman, in a lengthy opinion, argued that it was “unnecessary” and “unadvisable” for the court to endorse the theory that poor advice that leads to rejection of a plea offer is a constitutional infirmity that might justify relief from a later conviction after a fair trial.4

The Factual Setting

Mahar was indicted on charges including armed home invasion (which carries a minimum 20-year sentence),5 armed assault with intent to rob, assault by means of a dangerous weapon, and other offenses.6 The commonwealth alleged that, armed with a machete, he entered a residence his girlfriend was visiting and assaulted people inside.7 Prior to trial, Mahar rejected the commonwealth’s offer to dismiss the armed home invasion charge and recommend a 6-year sentence in exchange for guilty pleas to the other indictments.8 A jury convicted Mahar of all but two of the charges, and he received a sentence of 20 to 25 years imprisonment.9 With one exception, his convictions were affirmed on direct review.10 The primary issue on direct appeal was the trial judge’s rejection of Mahar’s theory that, because he had purportedly been invited into the house, he could not, as a matter of law, have been guilty of home “invasion.”11 The trial judge had refused Mahar’s request for a jury instruction that he could not be convicted if the jury found he had been invited into the home by a lawful occupant.12 The SJC concluded that, even if he had been invited into the home, the occupants were unaware that he was armed and intended to commit an assault, so any consent was not legally significant.13

Mahar’s eventual response to that rebuff was to seek a new trial based on ineffectiveness of counsel’s advice in connection with his rejection of the pretrial plea offer.14 He alleged in an affidavit that his trial counsel had advised him that for a conviction on the home invasion charge, the prosecution would have to prove the occupants did not consent to his entry and that, if he had known that consent was not a defense to home invasion, he would have accepted the plea offer.15 His trial counsel filed an affidavit agreeing that she had believed the commonwealth had to prove lack of consent, that she had so advised Mahar, and that, if she had advised him in advance of trial of the jury instruction actually given (which eliminated the consent issue), he would “probably” have accepted the plea offer.16 The trial judge denied the motion for a new trial, and the SJC transferred Mahar’s appeal to itself on its own motion.17

The Legal Background

It is beyond dispute that Mahar had a constitutional right to the assistance of counsel in defending himself against the commonwealth.18 The right to counsel applies not only at trial but also at the prior stage at which a defendant decides whether to plead guilty or proceed to trial.19 The point at which a defendant decides whether to plead guilty or to stand trial is a “critical stage in [the] criminal proceeding.”20 Furthermore, a defendant is entitled to competent counsel and may seek relief after trial if he can show that his counsel was constitutionally inadequate.21

To obtain such relief he must satisfy a well-established, two-factor test: (1) counsel must have shown “serious incompetency,” that is, behavior well below that expected from an ordinary, fallible lawyer; and (2) prejudice resulted from that incompetence, that is, a probability that with competent counsel the result of the proceeding “would have been different.”22 Typically, claims of ineffective assistance of counsel challenge counsel’s preparation for or performance at trial or in connection with counsel’s accepted advice to plead guilty.23

In rare cases, however, defendants who were convicted after a fair trial have argued that, if given competent counsel, they would have pleaded guilty.24 Courts have approached such claims “warily.”25 Nonetheless, virtually every court which has directly considered this issue has concluded that, if a defendant rejects a plea offer because of ineffective assistance of counsel, a subsequent fair trial does not ameliorate the constitutional injury that the defendant has suffered.26

The leading case on this issue is In re Alvernaz27 in which the California Supreme Court, although denying relief because the defendant had not met his burden of showing a “reasonable probability” that he would have accepted the plea offer but for trial counsel’s allegedly inaccurate advice, held that, in the future, such claims could be brought.28 The court went on to note that if a defendant were successful in such a case, the state would be required to submit the rejected plea to the trial judge for approval, unless it elected to retry the case and resume plea negotiations.29 Those courts which have followed Alvernaz have uniformly applied an analysis based on Strickland v. Washington,30 requiring a defendant to demonstrate that: (1) counsel’s behavior fell measurably below the level that might have been expected from an ordinary, fallible lawyer; and (2) prejudice, i.e., a “reasonable probability” that, but for counsel’s error, the result would have been different.31 In light of the high standard set by Strickland and the “wary” approach noted above, relatively few cases have gone beyond announcing the existence of a potential remedy.32 Those that have reached it have differed on the quantum and nature of the prejudice that must be shown33 and the kinds of remedies available.34 Until Mahar, the SJC had not addressed this issue.35

The Court’s Holding

Writing for a six-justice majority, Justice Cordy affirmed the trial judge’s denial of Mahar’s motion for a new trial.36 He began with the straightforward proposition that the decision whether to plead guilty or go to trial is a “critical stage” at which a defendant is constitutionally entitled to counsel.37 He then stated, “That right plainly includes counsel’s effective assistance in connection with the defendant’s decision whether to accept or reject a plea bargain offer made by the Commonwealth.”38 Finally, he announced that the SJC would join “nearly every other appellate court” to conclude that, if an offer is rejected because of the ineffective assistance of counsel, a subsequent fair trial “does not ameliorate the constitutional harm that occurred in the plea consideration process.”39 After announcing that general rule, Justice Cordy noted that in considering a claim based on incompetence of legal advice bearing on the likelihood of acquittal, “[the] court must be acutely aware of the temptation of a defendant to second guess his decision and counsel’s advice in light of subsequent adverse events.”40

Justice Cordy recognized that “assessments of the likelihood of acquittal involve layers of judgment and a highly uncertain element of prognostication, and it is extremely difficult to assess with hindsight the soundness of the earlier judgments.”41 Consequently, he cautioned, “[a] simple misjudgment as to the strength of the prosecution’s case, the chances of acquittal, or the sentence a defendant is likely to receive upon conviction, among other matters involving the exercise of counsel’s judgment, will not, without more, give rise to a claim of ineffective assistance of counsel.”42 Justice Cordy noted that the court would consider whether counsel’s advice was “‘within the range of competence demanded of attorneys in criminal cases,’” and that such advice would not be evaluated “retrospectively through the lens of subsequent events that may have proved it wrong.”43 Finally, he applied this new rule to Mahar’s case and concluded, with relatively little difficulty, that counsel’s belief that the prosecution would be required to prove a lack of consent was “reasonable.”44 Accordingly, as counsel’s performance did not fall measurably below that which might be expected from an ordinary fallible lawyer, the court affirmed the denial of the motion for new trial.45

Having found counsel was not ineffective, Justice Cordy went no further except to note that the “difficulties entailed in determining whether a defendant has been prejudiced by incompetent advice, and, if so, the problematic process of fashioning a fair and adequate remedy [were] not before us.”46 Conceding those were difficult issues to resolve, he pointed out that they have been “extensively discussed, considered, and weighed by courts in other jurisdictions . . . [and] are best resolved in the context of the facts and circumstances of specific cases.”47

Justice Sosman’s Concurrence

Justice Sosman concurred with the majority’s holding that a new trial was properly denied because counsel’s performance had not been shown to be constitutionally inadequate.48 She wrote separately, however, to explain why the majority’s use of such a case as a springboard for endorsement of the theory that poor advice that led to rejection of a plea offer would justify relief from a later conviction after a fair trial was both “unadvisable” and “unnecessary.”49

Justice Sosman noted that despite the “admittedly wide acceptance of the proposition by other courts,” it had never been adopted by the United States Supreme Court.50 She pointed out that the Supreme Court not only has not held that the Sixth Amendment to the United States Constitution guarantees effective assistance in connection with a plea, but has held that “the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial.”51 A defendant who rejects a plea offer because of bad legal advice and is later convicted after trial has lost “an opportunity, not a ‘right to which the law entitles him.’”52 Justice Sosman firmly rejected the majority’s conclusion that the right to counsel “plainly” applies equally to decisions to accept or to reject plea bargains.53 A defendant who ill-advisedly goes to trial is not in the same position as one who ill-advisedly pleads guilty.54 The former retains the entire panoply of constitutional protections, while the later has irrevocably lost them.55

Justice Sosman said that Mahar offered a particularly weak basis for adopting a rule permitting inadequate assistance challenges to plea offer rejections. Most of the jurisdictions which have reached that result have done so on allegations that counsel failed to inform the client of a plea offer or made an equally obvious error in calculating sentencing exposure.56 Such errors are, in Justice Sosman’s words, “so blatant, and so fundamental” that they readily meet the first prong of inadequate assistance — markedly subcompetent performance — and, where the error is sufficiently large and the evidence against the defendant is very strong, might even be persuasive on the second prong, prejudice, since the defendant could demonstrate that, but for counsel’s failure, he would likely have accepted the plea offer.57 Justice Sosman conceded that, in such “drastic” cases, of which she felt Mahar was not one, there is understandable temptation to turn back the clock to allow a defendant to escape the consequences of a trial he should have been able to avoid, a temptation, however, which she characterized as an “erroneous” elevation of the “buzzwords of ‘ineffective assistance of counsel’ over the concepts that underlie the right to counsel.”58

Even in the most sympathetic cases, Justice Sosman saw an inescapable problem: the remedy. As she noted, when ineffective assistance causes a defendant to waive his right to a trial, the remedy is to allow him to retract the waiver and give him the trial to which he is constitutionally entitled.59 When ineffective assistance results in an unfair trial, the remedy again is simple: grant a second, fair trial. But cases such as Mahar present a “virtually insurmountable” problem since the defendant has already had his fair trial.60 Justice Sosman canvassed and rejected the possible remedies. First, she concluded it would be a clear violation of separation of powers to order the prosecution to dismiss a valid charge where (as in Mahar) that would be necessary to reconstruct the plea offer, at least where there was no prosecutorial misconduct and there was sufficient evidence to warrant the verdict on that charge.61 The parties “cannot recreate the balance of risks and incentives on both sides that existed prior to trial.”62

Second, Justice Sosman effectively showed that the normal remedy for constitutional errors, granting retrial, would be inappropriate. The defendant has already had a fair trial and “[n]o matter how many fair trials the defendant is given, those trials will not restore . . . the lost opportunity to plead guilty to lesser charges with lesser sentences.”63 Granting a retrial would be no more than a “not-so-subtle means of pressuring” the prosecution into putting the deal back on the table, which Justice Sosman considered to be as much a violation of separation of powers as ordering charges to be dropped.64 Even if the prosecution succumbs to pressure and reoffers the plea, there is no guarantee that the defendant will choose to accept it if his alternative is a new trial. If the retrial goes forward, either the defendant will be reconvicted after an “utterly pointless” retrial or, if the passage of time has weakened the case, retrial will result in outright acquittal, a remedy totally out of proportion for the injury that the defendant suffered in mistakenly rejecting the plea offer.65 Finally, as in Mahar, where the defendant was acquitted of some of the lesser charges he was to have pleaded guilty to, changed circumstances may make the plea offer impossible to resurrect.66 As Justice Sosman noted, the appellate cases addressing this issue have either ignored the remedy issue or graciously punted the problem to the trial court, relying on its creative discretion.67

Finally, Justice Sosman concluded, judges have long been advised to stay out of the plea bargaining process,68 advice regularly given to new trial judges upon entry to the bench. She noted that prior to the start of trial a judge does not and should not ask a defendant if “[his] plea of not guilty is well informed or well advised.”69 The majority’s decision will require judges who have provided defendants with constitutionally fair trials to “polic[e,]” long after the fact, unsuccessful plea negotiations, a prospect that, she suggested, should give the court pause.70

Conclusion

The majority’s decision in Mahar is entirely consistent with the conclusions of the overwhelming majority of state and federal courts that have considered this issue. It is not inconsistent with any of the SJC’s own precedents or those of the Supreme Court, and it represents a reasonable extrapolation from existing case law. It creates a superficially complete analytical syllogism — the defendant was entitled to competent representation, he received inadequate representation, therefore he should have a remedy. Finally, and most persuasively, it allows at least the prospect of correction of situations that, at first, seem plainly unjust.71 Nonetheless, as Justice Sosman concluded,72 a trial judge’s job is not to counsel defendants who have asked for trials, but to ensure that defendants who have requested trials receive constitutionally fair ones. Despite the understandable urge to allow the possibility of a remedy for “egregious”73 bad advice that leads to rejection of favorable plea agreements, the majority’s response is both analytically unsound and pragmatically unworkable.

The New Yorker got it right. Sometimes the only answer to an unhappy client is: “Your lawyer was wrong. You go to jail.”

Judge Stephen Ostrach

1. 442 Mass. 11 (2004).[back]

2. Id. at 13.[back]

3. Id. at 15.[back]

4. Id. at 20 (Sosman, J., concurring).[back]

5. Mass. Gen. Laws ch. 265, § 18C (2002 & 2005 Supp.).[back]

6. Mahar, 442 Mass. at 12. [back]

7. Id.[back]

8. Id. [back]

9. See id. at 12-13. The jury acquitted Mahar of two counts of assault by means of a dangerous weapon. Id.; see Commonwealth v. Mahar, 430 Mass. 643, 644 & n.1 (2000).[back]

10. Mahar, 430 Mass. at 644, 653. The SJC reversed Mahar’s conviction for armed assault with intent to rob and remanded that charge for retrial. Id. at 653. The SJC did not address Mahar’s assault and battery conviction, as that conviction had been filed with the defendant’s consent. Id. at 644 n.1.[back]

11. Id. at 646-47.[back]

12. Id. at 644.[back]

13. Mahar, 430 Mass. at 652.[back]

14. Mahar, 442 Mass. at 11-12.[back]

15. Id. at 13.[back]

16. Id.[back]

17. Id. [back]

18. U.S. Const. amend. VI; Mass. Const., pt. 1, art. XII. See generally Argersinger v. Hamlin, 407 U.S. 25 (1972) (federal constitution); Gideon v. Wainwright, 372 U.S. 335 (1963) (same); Lavallee v. Justices in the Hampden Superior Court, 442 Mass. 228 (2004) (state constitution); Commonwealth v. Donlan, 436 Mass. 329 (2002) (same).[back]

19. Mahar, 442 Mass. at 14 (citing, inter alia, Hill v. Lockhart, 474 U.S. 52, 56 (1985), and Commonwealth v. Soffen, 377 Mass. 433, 436 (1979)).[back]

20. Id.[back]

21. See, e.g., Commonwealth v. Gonzalez, 443 Mass. 799, 800, 808-09 (2005); Commonwealth v. Owen, 57 Mass. App. Ct. 538, 538-39.[back]

22. Mahar, 442 Mass. at 15 (citing Strickland v. Washington, 466 U.S. 668, 694 (1984), and Commonwealth v. Saferian, 366 Mass. 89, 96 (1974)).[back]

23. Steven Zeidman, To Plead or Not to Plead: Effective Assistance and Client-Centered Counseling, 39 B. C. L. Rev. 841, 844-45 (1998); see, e.g., Gonzalez, 443 Mass. at 809-11 (the defendant challenged counsel’s decision to call one witness and not to call an expert); Commonwealth v. Walker, 443 Mass. 213, 225-28 (2005) (the defendant challenged counsel’s decision not to investigate a potential mental health defense). [back]

24. Zeidman, supra note 23, at 863. [back]

25. Id.; see Mahar, 442 Mass. at 17 (noting the temptation of a convicted defendant to “second guess” his rejection of a plea offer).[back]

26. See Mahar, 442 Mass. at 14-15 & n.5 (and cases cited); id. at 20 (Sosman, J., concurring) (“admittedly wide acceptance of the proposition”); State v. Donald, 10 P.3d 1193, 1198 (Ariz. Ct. App. 2000), cert. denied, 534 U.S. 825 (2001) (“all other jurisdictions”); People v. Curry, 687 N.E.2d 877, 882 (Ill. 1997) (“well established”).[back]

27. 830 P.2d 747 (Cal. 1992).[back]

28. Id. at 752.[back]

29. Id. at 760. Interestingly, although neither opinion in Mahar mentioned it, Alvernaz was effectively overturned shortly thereafter when a federal district court, considering Alvernaz’s petition for a writ of habeas corpus, found that he would have accepted the plea proffer if he had been competently advised by counsel. Alvernaz v. Ratelle, 831 F. Supp. 790, 792 (S.D. Cal. 1993). Concluding that “a new trial cannot remedy the specific deprivation suffered,” the federal court deemed the California Supreme Court’s proposed remedy “unsatisfactory” and ordered the state to restore the plea offer that the defendant had rejected prior to trial. Id. at 797-98.[back]

30. 466 U.S. 668 (1984).[back]

31. See Tse v. United States, 290 F.3d 462, 464 (1st Cir. 2002); Magana v. Hofbauer, 263 F. 3d 542, 547-48 (6th Cir. 2001); see also Mahar, 442 Mass. at 15.[back]

32. See Mahar, 442 Mass. at 30.[back]

33. Courts disagree on whether a defendant must show objective evidence he would have accepted the offer or whether a simple claim is enough. Compare Tse, 290 F.3d at 464, with Magana, 263 F.3d at 547 n.1. Courts also differ on whether “prejudice” requires showing that a defendant would have accepted the plea offer or whether he must show that the trial judge would have accepted it. See Mahar, 442 Mass. at 27. But see Donald, 10 P.3d at 1202 (“most courts”); Curry, 687 N.E.2d at 889 (“a majority of cases from other jurisdictions do not require a defendant to prove that the trial judge would have accepted the plea agreement”).[back]

34. Potential remedies run to mandated reoffer of the rejected plea, see Alvernaz, 831 F. Supp. at 797-98; Donald, 10 P.3d at 1202, to a rebuttable presumption that refusal to reoffer the plea is “vindictive”, Magana, 263 F.3d at 553, to simply ordering another trial. United States v. Gordon, 156 F.3d 376, 382 (2d Cir. 1998); State v. Lentowski, 569 N.W. 2d 758, 762 (Wisc. Ct. App. 1997).[back]

35. Mahar, 442 Mass. at 14-15. [back]

36. Id. at 11-12.[back]

37. Id. at 14.[back]

38. Id. (citing, inter alia, Hill, 474 U.S. at 58; Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003), and United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992)). But see id. at 22 n.11 (where Justice Sosman noted that Hill, 474 U.S. at 58, and Osborne v. Commonwealth, 378 Mass. 104, 108-13 (1979) which the majority cited, both dealt with acceptances of plea bargains and, thus, did not directly support the majority’s proposition).[back]

39. Id. at 14-15 & n.5 (citing 33 state and federal cases in support of the majority’s view, and noting that only Louisiana and Utah hold to the contrary).[back]

40. Mahar, 442 Mass. at 17.[back]

41. Id.[back]

42. Id.[back]

43. Id. (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)).[back]

44. Id. at 18-19. Justice Cordy noted counsel’s reliance on Commonwealth v. Dunn, 43 Mass. App. Ct. 58, decided five months earlier, in which the Massachusetts Appeals Court suggested that “consensual or privileged entry is not an ‘invasion.’” Id. at 60. And he also rejected Mahar’s argument that trial counsel was incompetent because she did not inquire of the trial judge about his “anticipated legal rulings,” finding it “implausible” that a judge would commit to anticipated rulings before hearing evidence. Mahar, 442 Mass. at 17 n.6. Justice Cordy did not discuss why, before recommending rejection of the plea offer, counsel did not seek a ruling on her proposed instruction on consent, an inquiry which might not have been unusual in a case involving a novel legal issue. See, e.g., Commonwealth v. Isabelle, 444 Mass. 416, 428-29 (2005) (defense counsel filed a motion in limine in an appropriate effort to avoid the erroneous admission of evidence); Commonwealth v. Santiago, 52 Mass. App. Ct. 667, 671 (2001), S.C., 437 Mass. 620 (2002) (defense counsel filed a motion in limine and argued at trial concerning the admissibility of certain evidence).[back]

45. Mahar, 442 Mass. at 19.[back]

46. Id. at 19 n.9.[back]

47. Id.[back]

48. Id. at 20.[back]

49. Id.[back]

50. Mahar, 442 Mass. at 20.[back]

51. Id. (quoting United States v. Cronic, 466 U.S. 648, 658 (1984)). The majority and Justice Sosman agreed that this is solely a federal Sixth Amendment case. See id. at 14, 20. At least one court, however, prospectively dealt with Justice Sosman’s argument that the right to counsel relates only to the ability to secure a “fair trial” by suggesting that the Sixth Amendment right to counsel is distinct from, and broader than, the due process right to a fair trial accorded by the Fifth Amendment to the United States Constitution. See Day, 969 F.2d at 45. [back]

52. Mahar, 442 Mass. at 21 (quoting Lockhart v. Fretwell, 506 U.S. 364, 372 (1993)). [back]

53. Compare id. at 22 & n.11 (Sosman, J., concurring), with id. at 14.[back]

54. Id. at 22.[back]

55. Id.[back]

56. Id. at 23; see, e.g., Curry, 687 N.E. 2d at 884 (after conviction, the trial judge imposed multiple consecutive sentences as required by statute; when both counsel noted that plea negotiations had assumed concurrent sentences were available, the judge responded: “the law is the law is the law and whether or not you knew it at the negotiation stage or not really doesn’t matter since Mr. Curry was given all his rights and had a jury trial”). Apparently the first case in which a defendant sought post-trial relief solely on a theory that counsel simply gave bad advice to reject a plea offer was State v. Kraus, 397 N.W.2d 671, 673 (Iowa 1986).[back]

57. Mahar, 442 Mass. at 23-24.[back]

58. Id. at 24.[back]

59. Id. at 25.[back]

60. Id. at 26.[back]

61. Id. at 26-27 (citing United States v. Papaleo, 853 F.2d 16, 18-20 (1st Cir. 1988) (a court cannot order the prosecution to put a withdrawn offer back on the table)). Courts in other jurisdictions have not felt so constrained. See, e.g., Alvernaz, 831 F. Supp. at 798; Donald, 10 P.3d at 1202; Ex parte Lemke, 13 S.W.3d 791, 798 (Tex. Crim. App. 2000).[back]

62. Mahar, 442 Mass. at 26.[back]

63. Id. at 28; see also Kraus, 397 N.W.2d at 674 (“One more fair trial, or even a series of them[,]” will not restore the lost plea opportunity).[back]

64. Mahar, 442 Mass. at 28. The California Supreme Court candidly noted as much in In re Alvernaz. See 830 P.2d at 760 (the threat of a retrial gives a defendant “leverage” in renewed plea bargaining); Lentowski, 569 N.W. 2d at 762 (noting that the prosecution possesses leverage in that it knows it has secured a conviction against the defendant, but recognizing that a defendant, too, has leverage, because the prosecution will be concerned over the time, expense, and uncertain result of a second trial).[back]

65. Mahar, 442 Mass. at 28; see also Donald, 810 P.3d at 1205 n.7 (noting with concern that a defendant might conclude that the passage of time has so weakened the prosecution’s case that he would be better off to reject the earlier plea offer in favor of a new trial).[back]

66. Mahar, 442 Mass. at 29.[back]

67. Id. at 30 (citing Day, 969 F.2d at 47, in which the court candidly acknowledged the difficulty in formulating a remedy but left the matter to the district court judge’s “considerable discretion”). As noted above, Justice Cordy also recognized the “problematic” and “difficult” issues involved in fashioning a remedy. Mahar, 442 Mass. at 19 n.9.[back]

68. Id. at 30.[back]

69. Id.[back]

70. Id.[back]

71. See, e.g., Turner v. Tennessee, 858 F.2d 1201, 1203 (6th Cir. 1988), vacated and remanded, 492 U.S. 902 (1989) (on the advice of counsel, the defendant rejected an offer of a two-year sentence and, after conviction, was sentenced to life plus forty years); Curry, 687 N.E. 2d at 884 (the prosecution and defense told the trial judge in unsuccessful plea negotiations that they had assumed the defendant faced only concurrent, not consecutive, sentences). [back]

72. Mahar, 442 Mass. at 30.[back]

73. Id.[back]

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