Defense Counsel’s Obligations to Convey Plea Offers – Commonwealth v. Moss

By Cailin Campbell

Does defense counsel have a constitutional obligation to initiate plea negotiations when no formal plea offer has been made by the prosecutor? In Commonwealth v. Mosso, 496 Mass. 768 (2025), the Supreme Judicial Court (“SJC”) answered: it depends.

Facts

In 1984, after a joint jury trial, Gary E. Mosson and his co-defendant were convicted of joint venture first-degree murder. More than 20 years later, the defendant filed a motion for a new trial, alleging his trial counsel was ineffective for failing to convey to the prosecutor prior to trial that the defendant was willing to plead guilty to the lesser-included offense of second-degree murder.

The defendant, a defense expert, and the trial prosecutor testified at a subsequent evidentiary hearing on the defendant’s motion. The defendant testified that, prior to his trial, he asked his attorney about the possibility of a plea and told his attorney that he was willing to plead guilty to second-degree murder. The trial prosecutor testified that the defendant’s attorney never came to him with this plea offer. The trial prosecutor also testified that, while he would have considered a second-degree murder plea, the acceptance of a second-degree murder plea offer would have had to include both the defendant and his co-defendant. The co-defendant had not indicated a willingness to plead guilty to second-degree murder prior to the trial. The co-defendant did express a willingness to plead guilty to manslaughter pre-trial, which was rejected by the trial prosecutor. Two weeks into trial, the co-defendant eventually offered to plead guilty to second-degree murder, but the prosecutor was unwilling to even entertain the offer, because the victim’s family had already been subjected to the trauma of trial.

The motion judge denied the defendant’s motion for new trial, reasoning that there was no realistic probability that the defendant could have pleaded guilty to second-degree murder, as defense counsel never sought such a plea deal, and the prosecutor would have only considered such a deal if both defendants had agreed to it prior to trial.

Holding

Under the Sixth Amendment to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights, a criminal defendant is constitutionally entitled to effective assistance of counsel in negotiating and entering a plea pre-trial. While effective assistance of counsel is a recognized constitutional right, a criminal defendant has no constitutional right to receive a plea offer, to have a plea offer accepted by a prosecutor, or to have a plea offer accepted by a judge.

Never previously considered by the SJC was whether a constitutionally effective attorney must convey a defendant’s offer to plea to a lesser offense when the prosecutor has not first made a plea offer. The SJC answered that, while defense counsel does not have “an absolute duty to engage in plea negotiations,” a constitutionally effective attorney must inform a prosecutor of a defendant’s plea offer if the offer is “reasonable in the circumstances.” Mosso, 496 Mass. at 778. Whether an offer is reasonable depends on the desired disposition in light of the nature of the underlying crime and the strength of the Commonwealth’s case. Id. The SJC reiterated that plea discussions should be considered the norm and that failure to engage in such discussions should be the exception. Id. at 778-79. Moreover, the SJC ruled that an attorney may not reject a defendant’s reasonable request to begin such discussions based on a belief that the prosecutor will not be open to or accept the defendant’s offer. Id.

Turning to the case at bar, the SJC applied the standard test for ineffective assistance of counsel established under Commonwealth v. Saferian, 366 Mass. 89, 96 (1974), which requires a defendant to prove first, that defense counsel’s performance was constitutionally deficient, and second, that the defendant was prejudiced by this deficiency. Where counsel’s deficiency occurs in the context of a plea negotiation, a defendant must show that “counsel’s constitutionally ineffective performance affected the outcome of the plea process.” Id.

As to the first prong, the SJC held that defense counsel offered constitutionally deficient representation for failing to inform the prosecutor of the defendant’s willingness to plead guilty to second-degree murder. Mosso, 496 Mass. at 780. However, the SJC held that the defendant failed to satisfy the second prong—that he was prejudiced by this deficiency. Id. at 781–82. The SJC reasoned that although the trial prosecutor would have considered a pre-trial second-degree murder plea offer, the prosecutor’s willingness to accept the plea was conditioned upon both defendants agreeing to plead guilty, a scenario that never presented itself given the co-defendant’s pre-trial unwillingness to plead guilty to second-degree murder. Id. Thus, the defendant failed to establish that the outcome of the plea process was affected by his counsel’s performance, and the defendant’s motion was properly denied. Id.

Takeaways

• An attorney should explore all alternatives to trial, including a negotiated plea deal.
• An attorney may not ignore a client’s reasonable request to open or pursue plea negotiations based on a belief that the offer will not be accepted by the prosecutor.
• Such an obligation exists even when the prosecutor has made no formal offer.
• Whether the failure to convey an offer to plea amounts to ineffective assistance of counsel depends on whether the plea offer is reasonable under the circumstances, a standard that considers the plea offer, the nature of the crime, and the strength of the Commonwealth’s case.
• To prevail on a post-conviction claim on this issue, a defendant must show not only that his counsel’s performance was deficient but also that the defendant was prejudiced, meaning that the offer would have been accepted by the prosecutor and presented to and accepted by the Court, and that the plea sentence would have been less severe than the judgment and sentence imposed after trial.

Cailin Campbell is an Assistant District Attorney at the Suffolk County District Attorney’s Office. She is currently the Chief of Ethics and Compliance, as well as a member of the Homicide Unit. Prior to that, she was Chief Legal Counsel for Ethics, Integrity, and Policy for the Plymouth County District Attorney’s Office. Before that, she was Chief of Appeals for the Suffolk County District Attorney’s Office, and prior to becoming Chief, she spent over a decade in the Appeals Unit. Cailin clerked for the Honorable Joseph A. Grasso, Jr. at the Massachusetts Appeals Court and is a graduate of Suffolk University Law School and the University of Massachusetts Amherst.