In its recent decisions in Lafler v. Cooper and Missouri v. Frye, the U.S. Supreme Court held that habeas petitioners can establish a violation of the sixth amendment right to counsel by proving "a reasonable probability [that] they would have accepted the … plea offer had they been afforded effective assistance of counsel." Ahmed Kenyatta Ebron entered an open plea of guilty to various charges, advised by Attorney Richard Silverstein. He received a net effective sentence of 11 years' incarceration. Ebron filed a petition for a writ of habeas corpus, claiming, inter alia, that Silverstein failed to advise him adequately regarding the state's  offer of six years' incarceration and that this failure constituted ineffective assistance of counsel. The habeas court granted the petition and ordered the trial court to vacate the plea and allow Ebron the opportunity to accept the original offer. The Appellate Court affirmed the judgment. The Supreme Court granted the commissioner of correction's petition for certification to appeal.  Before oral argument, the parties were ordered to submit supplemental briefs addressing Lafler and Frye. The commissioner conceded that, contrary to her prior argument, Lafler and Frye established that the failure to advise a client adequately about a plea offer can provide the basis for an ineffective assistance of counsel claim under the sixth amendment. She argued that Ebron could not establish prejudice and contested the remedy. The Supreme Court affirmed and reversed the judgment, in part, concluding that the Appellate Court properly affirmed the habeas court's judgment that Ebron received ineffective assistance of counsel, but, improperly affirmed the order for relief. To establish prejudice, a petitioner need establish only that: 1.) it is reasonably probable that, if not for counsel's deficient performance, the petitioner would have accepted the plea offer; and, 2.) the trial judge would have conditionally accepted the plea agreement if presented. When prejudice is found, generally, the habeas court should order the trial court to determine the proper remedy in light of any information concerning the crime or petitioner that would have come to light between the plea's acceptance and sentence imposition. The habeas court's factual finding that Judge Alexander would have conditionally accepted the plea agreement was sufficient to establish prejudice. The case was remanded for an order directing the trial court to determine the proper remedy as instructed.

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