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SUPREME COURT OF THE UNITED STATES
_________________
No. 10–444
_________________
MISSOURI, PETITIONER
v. GALIN E.
FRYE
on writ of certiorari to the court of appeals
of missouri, western district
[March 21, 2012]
Justice Kennedy delivered the opinion of the
Court.
The Sixth Amendment, applicable to the States by
the terms of the Fourteenth Amendment, provides that the ac- cused
shall have the assistance of counsel in all criminal prosecutions.
The right to counsel is the right to effective assistance of
counsel. See
Strickland v.
Washington,
466 U.S.
668, 686 (1984). This case arises in the context of claimed
ineffective assistance that led to the lapse of a prosecution offer
of a plea bargain, a proposal that offered terms more lenient than
the terms of the guilty plea entered later. The initial question is
whether the consti- tutional right to counsel extends to the
negotiation and consideration of plea offers that lapse or are
rejected. If there is a right to effective assistance with respect
to those offers, a further question is what a defendant must dem-
onstrate in order to show that prejudice resulted from
counsel’s deficient performance. Other questions relating to
ineffective assistance with respect to plea offers, including the
question of proper remedies, are considered in a second case
decided today. See
Lafler v.
Cooper,
post, at
3–16.
I
In August 2007, respondent Galin Frye was
charged with driving with a revoked license. Frye had been
convicted for that offense on three other occasions, so the State
of Missouri charged him with a class D felony, which carries a
maximum term of imprisonment of four years. See Mo. Rev. Stat.
§§302.321.2, 558.011.1(4) (2011).
On November 15, the prosecutor sent a letter to
Frye’s counsel offering a choice of two plea bargains.
App. 50. The prosecutor first offered to recommend a 3-year
sentence if there was a guilty plea to the felony charge, without a
recommendation regarding probation but with a recommendation that
Frye serve 10 days in jail as so-called “shock” time.
The second offer was to reduce the charge to a misdemeanor and, if
Frye pleaded guilty to it, to recommend a 90-day sentence. The
misdemeanor charge of driving with a revoked license carries a
maximum term of imprisonment of one year. 311 S.W.3d 350, 360 (Mo.
App. 2010). The letter stated both offers would expire on December
28. Frye’s attorney did not advise Frye that the offers had
been made. The offers expired.
Id., at 356.
Frye’s preliminary hearing was scheduled
for January 4, 2008. On December 30, 2007, less than a week before
the hearing, Frye was again arrested for driving with a re- voked
license. App. 47–48, 311 S. W. 3d, at
352–353. At the January 4 hearing, Frye waived his right to a
preliminary hearing on the charge arising from the August 2007
arrest. He pleaded not guilty at a subsequent arraignment but then
changed his plea to guilty. There was no underlying plea agreement.
App. 5, 13, 16. The state trial court accepted Frye’s guilty
plea.
Id., at 21. The prosecutor recommended a 3-year
sentence, made no recommendation regarding probation, and requested
10 days shock time in jail.
Id., at 22. The trial judge
sentenced Frye to three years in prison.
Id., at 21, 23.
Frye filed for postconviction relief in state
court.
Id., at 8, 25–29. He alleged his
counsel’s failure to inform him of the prosecution’s
plea offer denied him the effective assistance of counsel. At an
evidentiary hearing, Frye testified he would have entered a guilty
plea to the misdemeanor had he known about the offer.
Id.,
at 34.
A state court denied the postconviction motion,
id., at 52–57, but the Missouri Court of Appeals
reversed, 311 S.W.3d 350. It determined that Frye met both of the
requirements for showing a Sixth Amendment violation under
Strickland. First, the court determined Frye’s
counsel’s performance was deficient because the “record
is void of any evidence of any effort by trial counsel to
communicate the Offer to Frye during the Offer window.” 311
S. W. 3d, at 355, 356 (emphasis deleted). The court next
concluded Frye had shown his counsel’s deficient performance
caused him prejudice because “Frye pled guilty to a felony
instead of a misdemeanor and was subject to a maximum sentence of
four years instead of one year.”
Id., at 360.
To implement a remedy for the violation, the
court deemed Frye’s guilty plea withdrawn and remanded to
allow Frye either to insist on a trial or to plead guilty to any
offense the prosecutor deemed it appropriate to charge. This Court
granted certiorari. 562 U. S. ___ (2011).
II
A
It is well settled that the right to the
effective assistance of counsel applies to certain steps before
trial. The “ Sixth Amendment guarantees a defendant the right
to have counsel present at all ‘critical’ stages of the
criminal proceedings.”
Montejo v.
Louisiana,
556 U.S.
778, 786 (2009) (quoting
United States v.
Wade,
388 U.S.
218, 227–228 (1967)). Critical stages include
arraignments, postindictment interrogations, postindictment
lineups, and the entry of a guilty plea. See
Hamilton v.
Alabama,
368 U.S.
52 (1961) (arraignment);
Massiah v.
United
States,
377 U.S.
201 (1964) (postindictment interrogation);
Wade,
supra (postindictment lineup);
Argersinger v.
Hamlin,
407 U.S.
25 (1972) (guilty plea).
With respect to the right to effective counsel
in plea negotiations, a proper beginning point is to discuss two
cases from this Court considering the role of counsel in advising a
client about a plea offer and an ensuing guilty plea:
Hill
v.
Lockhart,
474 U.S.
52 (1985); and
Padilla v.
Kentucky, 559
U. S. ___(2010).
Hill established that claims of
ineffective assistance of counsel in the plea bargain context are
governed by the two-part test set forth in
Strickland. See
Hill,
supra, at 57. As noted above, in Frye’s
case, the Missouri Court of Appeals, applying the two part test of
Strickland, determined first that defense counsel had been
ineffective and second that there was resulting prejudice.
In
Hill, the decision turned on the
second part of the
Strickland test. There, a defendant who
had entered a guilty plea claimed his counsel had misinformed him
of the amount of time he would have to serve before he became
eligible for parole. But the defendant had not alleged that, even
if adequate advice and assistance had been given, he would have
elected to plead not guilty and proceed to trial. Thus, the Court
found that no prejudice from the inadequate advice had been shown
or alleged.
Hill,
supra, at 60.
In
Padilla, the Court again discussed the
duties of counsel in advising a client with respect to a plea offer
that leads to a guilty plea.
Padilla held that a guilty
plea, based on a plea offer, should be set aside because counsel
misinformed the defendant of the immigration consequences of the
conviction. The Court made clear that “the negotiation of a
plea bargain is a critical phase of litigation for purposes of the
Sixth Amendment right to effective assistance of counsel.”
559 U. S., at ___ (slip op., at 16). It also rejected the
argument made by petitioner in this case that a knowing and
voluntary plea supersedes errors by defense counsel. Cf. Brief for
Respondent in
Padilla v.
Kentucky, O. T. 2009,
No. 08–651, p. 27 (arguing Sixth Amendment’s
assurance of effective assistance “does not extend to
collateral aspects of the prosecution” because
“knowledge of the consequences that are collateral to the
guilty plea is not a prerequisite to the entry of a knowing and
intelligent plea”).
In the case now before the Court the State, as
petitioner, points out that the legal question presented is
different from that in
Hill and
Padilla. In those
cases the claim was that the prisoner’s plea of guilty was
invalid because counsel had provided incorrect advice pertinent to
the plea. In the instant case, by contrast, the guilty plea that
was accepted, and the plea proceedings concerning it in court, were
all based on accurate advice and information from counsel. The
challenge is not to the advice pertaining to the plea that was
accepted but rather to the course of legal representation that
preceded it with respect to other potential pleas and plea
offers.
To give further support to its contention that
the instant case is in a category different from what the Court
considered in
Hill and
Padilla, the State urges that
there is no right to a plea offer or a plea bargain in any event.
See
Weatherford v.
Bursey,
429
U.S. 545, 561 (1977). It claims Frye therefore was not deprived
of any legal benefit to which he was entitled. Under this view, any
wrongful or mistaken action of counsel with respect to earlier plea
offers is beside the point.
The State is correct to point out that
Hill and
Padilla concerned whether there was
ineffective assistance leading to acceptance of a plea offer, a
process involving a formal court appearance with the defendant and
all counsel present. Before a guilty plea is entered the
defendant’s understanding of the plea and its consequences
can be established on the record. This affords the State
substantial protection against later claims that the plea was the
result of inadequate advice. At the plea entry proceedings the
trial court and all counsel have the opportunity to establish on
the record that the defendant understands the process that led to
any offer, the advantages and disadvantages of accepting it, and
the sentencing consequences or possibilities that will ensue once a
conviction is entered based upon the plea. See,
e.g., Fed.
Rule Crim. Proc. 11; Mo. Sup. Ct. Rule 24.02 (2004).
Hill and
Padilla both illustrate that, nevertheless,
there may be instances when claims of ineffective assistance can
arise after the conviction is entered. Still, the State, and the
trial court itself, have had a substantial opportunity to guard
against this contingency by establishing at the plea entry
proceeding that the defendant has been given proper advice or, if
the advice received appears to have been inadequate, to remedy that
deficiency before the plea is accepted and the conviction
entered.
When a plea offer has lapsed or been rejected,
however, no formal court proceedings are involved. This underscores
that the plea-bargaining process is often in flux, with no clear
standards or timelines and with no judicial supervision of the
discussions between prosecution and defense. Indeed, discussions
between client and defense counsel are privileged. So the
prosecution has little or no notice if something may be amiss and
perhaps no capacity to intervene in any event. And, as noted, the
State insists there is no right to receive a plea offer. For all
these reasons, the State contends, it is unfair to subject it to
the consequences of defense counsel’s inadequacies,
especially when the opportunities for a full and fair trial, or, as
here, for a later guilty plea albeit on less favorable terms, are
preserved.
The State’s contentions are neither
illogical nor without some persuasive force, yet they do not
suffice to overcome a simple reality. Ninety-seven percent of
federal con- victions and ninety-four percent of state convictions
are the result of guilty pleas. See Dept. of Justice, Bureau of
Justice Statistics, Sourcebook of Criminal Justice Sta- tistics
Online, Table 5.22.2009, http://www.albany.edu/
sourcebook/pdf/t5222009.pdf (all Internet materials as visited Mar.
1, 2012, and available in Clerk of Court’s case file); Dept.
of Justice, Bureau of Justice Statistics, S. Rosenmerkel, M.
Durose, & D. Farole, Felony Sentences in State Courts,
2006-Statistical Tables, p. 1 (NCJ226846, rev. Nov. 2010),
http://bjs.ojp.usdoj.gov/content/pub/pdf/ fssc06st.pdf;
Padilla,
supra, at ___ (slip op., at 15) (recognizing
pleas account for nearly 95% of all criminal convictions). The
reality is that plea bargains have become so central to the
administration of the criminal justice system that defense counsel
have responsibilities in the plea bargain process, responsibilities
that must be met to render the adequate assistance of counsel that
the Sixth Amendment requires in the criminal process at critical
stages. Because ours “is for the most part a system of pleas,
not a system of trials,”
Lafler,
post, at
11
, it is insufficient simply to point to the guarantee of a
fair trial as a backstop that inoculates any errors in the pretrial
process. “To a large extent . . . horse trading
[between prosecutor and defense counsel] determines who goes to
jail and for how long. That is what plea bargaining is. It is not
some adjunct to the criminal justice system; it
is the
criminal justice system.” Scott & Stuntz, Plea Bargaining
as Contract, 101 Yale L. J. 1909, 1912 (1992). See also
Barkow, Separation of Powers and the Criminal Law, 58 Stan. L. Rev.
989, 1034 (2006) (“[Defendants] who do take their case to
trial and lose receive longer sentences than even Congress or the
prosecutor might think appropriate, because the longer sentences
exist on the books largely for bargaining purposes. This often
results in individuals who accept a plea bargain receiving shorter
sentences than other individuals who are less morally culpable but
take a chance and go to trial” (footnote omitted)). In
today’s criminal justice system, therefore, the negotiation
of a plea bargain, rather than the unfolding of a trial, is almost
always the critical point for a defendant.
To note the prevalence of plea bargaining is not
to criticize it. The potential to conserve valuable prosecutorial
resources and for defendants to admit their crimes and receive more
favorable terms at sentencing means that a plea agreement can
benefit both parties. In order that these benefits can be realized,
however, criminal defendants require effective counsel during plea
negotiations. “Anything less . . . might deny a
defendant ‘effective representation by counsel at the only
stage when legal aid and advice would help him.’ ”
Massiah, 377 U. S., at 204 (quoting
Spano v.
New York,
360 U.S.
315, 326 (1959) (Douglas, J., concurring)).
B
The inquiry then becomes how to define the
duty and responsibilities of defense counsel in the plea bargain
process. This is a difficult question. “The art of
negotiation is at least as nuanced as the art of trial advocacy and
it presents questions farther removed from immediate judicial
supervision.”
Premo v.
Moore, 562 U. S.
___, ___ (2011) (slip op., at 8–9). Bargaining is, by its
nature, defined to a substantial degree by personal style. The
alternative courses and tactics in negotiation are so individual
that it may be neither prudent nor practicable to try to elaborate
or define detailed standards for the proper discharge of defense
counsel’s participation in the process. Cf.
ibid.
This case presents neither the necessity nor the
occasion to define the duties of defense counsel in those respects,
however. Here the question is whether defense counsel has the duty
to communicate the terms of a formal offer to accept a plea on
terms and conditions that may result in a lesser sentence, a
conviction on lesser charges, or both.
This Court now holds that, as a general rule,
defense counsel has the duty to communicate formal offers from the
prosecution to accept a plea on terms and conditions that may be
favorable to the accused. Any exceptions to that rule need not be
explored here, for the offer was a formal one with a fixed
expiration date. When defense counsel allowed the offer to expire
without advising the defendant or allowing him to consider it,
defense counsel did not render the effective assistance the
Constitution requires.
Though the standard for counsel’s
performance is not determined solely by reference to codified
standards of professional practice, these standards can be
important guides. The American Bar Association recommends defense
counsel “promptly communicate and explain to the defendant
all plea offers made by the prosecuting attorney,” ABA
Standards for Criminal Justice, Pleas of Guilty 14–3.2(a) (3d
ed. 1999), and this standard has been adopted by numerous state and
federal courts over the last 30 years. See,
e.g., Davie v.
State, 381 S. C. 601, 608–609, 675 S.E.2d 416,
420 (2009);
Cottle v.
State, 733 So. 2d 963,
965–966 (Fla. 1999);
Becton v.
Hun, 205
W. Va. 139, 144, 516 S.E.2d 762, 767 (1999);
Harris v.
State,
875 S.W.2d 662, 665 (Tenn. 1994);
Lloyd v.
State,
258 Ga. 645, 648,
373 S.E.2d 1, 3 (1988);
United States v.
Rodriguez
Rodriguez, 929 F.2d 747, 752 (CA1 1991)
(per curiam);
Pham v.
United States,
317 F.3d 178, 182 (CA2 2003);
United States ex rel.
Caruso v.
Zelinsky, 689 F.2d 435, 438 (CA3 1982);
Griffin v.
United States,
330 F.3d 733, 737 (CA6 2003);
Johnson v.
Duckworth, 793 F.2d 898, 902 (CA7 1986);
United
States v.
Blaylock,
20 F.3d 1458, 1466 (CA9 1994); cf.
Diaz v.
United
States, 930 F.2d 832, 834 (CA11 1991). The standard for prompt
communication and consultation is also set out in state bar
professional standards for attorneys. See,
e.g., Fla. Rule
Regulating Bar 4–1.4 (2008); Ill. Rule Prof. Conduct 1.4
(2011); Kan. Rule Prof. Conduct 1.4 (2010); Ky. Sup. Ct. Rule
3.130, Rule Prof. Conduct 1.4 (2011); Mass. Rule Prof. Conduct 1.4
(2011–2012); Mich. Rule Prof. Conduct 1.4 (2011).
The prosecution and the trial courts may adopt
some measures to help ensure against late, frivolous, or fabricated
claims after a later, less advantageous plea offer has been
accepted or after a trial leading to conviction with resulting
harsh consequences. First, the fact of a formal offer means that
its terms and its processing can be documented so that what took
place in the negotiation process becomes more clear if some later
inquiry turns on the conduct of earlier pretrial negotiations.
Second, States may elect to follow rules that all offers must be in
writing, again to ensure against later misunderstandings or
fabricated charges. See N. J. Ct. Rule 3:9–1(b) (2012)
(“Any plea offer to be made by the prosecutor shall be in
writing and forwarded to the defendant’s attorney”).
Third, formal offers can be made part of the record at any
subsequent plea proceeding or before a trial on the merits, all to
ensure that a defendant has been fully advised before those further
proceedings commence. At least one State often follows a similar
procedure before trial. See Brief for National Association of
Criminal Defense Lawyers et al. as
Amici Curiae 20
(discussing hearings in Arizona conducted pursuant to
State
v.
Donald, 198 Ariz. 406, 10 P.3d 1193 (App. 2000)); see
also N. J. Ct. Rules 3:9–1(b), (c) (requiring the
prosecutor and defense counsel to discuss the case prior to the
arraignment/status conference including any plea offers and to
report on these discussions in open court with the defendant
present);
In re Alvernaz,
2 Cal. 4th 924, 938, n. 7,
830 P.2d 747, 756, n. 7 (1992) (encouraging parties to
“memorialize in some fashion prior to trial (1) the fact that
a plea bargain offer was made, and (2) that the defendant was
advised of the offer [and] its precise terms, . . . and
(3) the defendant’s response to the plea bargain
offer”); Brief for Center on the Administration of Criminal
Law, New York University School of Law as
Amicus Curiae
25–27.
Here defense counsel did not communicate the
formal offers to the defendant. As a result of that deficient
performance, the offers lapsed. Under
Strickland, the
question then becomes what, if any, prejudice resulted from the
breach of duty.
C
To show prejudice from ineffective assistance
of counsel where a plea offer has lapsed or been rejected because
of counsel’s deficient performance, defendants must
demonstrate a reasonable probability they would have accepted the
earlier plea offer had they been afforded effective assistance of
counsel. Defendants must also demonstrate a reasonable probability
the plea would have been entered without the prosecution canceling
it or the trial court refusing to accept it, if they had the
authority to exercise that discretion under state law. To establish
prejudice in this instance, it is necessary to show a reasonable
probability that the end result of the criminal process would have
been more favorable by reason of a plea to a lesser charge or a
sentence of less prison time. Cf.
Glover v.
United
States,
531 U.S.
198, 203 (2001) (“[A]ny amount of [additional] jail time
has Sixth Amendment significance”).
This application of
Strickland to the
instances of an uncommunicated, lapsed plea does nothing to alter
the standard laid out in
Hill. In cases where a defendant
complains that ineffective assistance led him to accept a plea
offer as opposed to proceeding to trial, the defendant will have to
show “a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have insisted on
going to trial.”
Hill, 474 U. S., at 59.
Hill was correctly decided and applies in the context in
which it arose.
Hill does not, however, provide the sole
means for demonstrating prejudice arising from the deficient
performance of counsel during plea negotiations. Unlike the
defendant in
Hill, Frye argues that with effective
assistance he would have accepted an earlier plea offer (limiting
his sentence to one year in prison) as opposed to entering an open
plea (exposing him to a maximum sentence of four years’
imprisonment). In a case, such as this, where a defendant pleads
guilty to less favorable terms and claims that ineffective
assistance of counsel caused him to miss out on a more favorable
earlier plea offer,
Strickland’s inquiry into whether
“the result of the proceeding would have been
different,” 466 U. S., at 694, requires looking not at
whether the defendant would have proceeded to trial absent
ineffective assistance but whether he would have accepted the offer
to plead pursuant to the terms earlier proposed.
In order to complete a showing of
Strickland prejudice, defendants who have shown a reasonable
probability they would have accepted the earlier plea offer must
also show that, if the prosecution had the discretion to cancel it
or if the trial court had the discretion to refuse to accept it,
there is a reasonable probability neither the prosecution nor the
trial court would have prevented the offer from being accepted or
implemented. This further showing is of particular importance
because a defendant has no right to be offered a plea, see
Weatherford, 429 U. S., at 561, nor a federal right
that the judge accept it,
Santobello v.
New York,
404 U.S.
257, 262 (1971). In at least some States, including Missouri,
it appears the prosecution has some discretion to cancel a plea
agreement to which the defendant has agreed, see,
e.g., 311
S. W. 3d, at 359 (case below); Ariz. Rule Crim.
Proc. 17.4(b) (Supp. 2011). The Federal Rules, some state
rules including in Missouri, and this Court’s precedents give
trial courts some leeway to accept or reject plea agreements, see
Fed. Rule Crim. Proc. 11(c)(3); see Mo. Sup. Ct. Rule 24.02(d)(4);
Boykin v.
Alabama,
395 U.S.
238, 243–244 (1969). It can be assumed that in most
jurisdictions prosecutors and judges are familiar with the
boundaries of acceptable plea bargains and sentences. So in most
instances it should not be difficult to make an objective
assessment as to whether or not a particular fact or intervening
circumstance would suffice, in the normal course, to cause
prosecutorial withdrawal or judicial nonapproval of a plea bargain.
The determination that there is or is not a reasonable probability
that the outcome of the proceeding would have been different absent
counsel’s errors can be conducted within that framework.
III
These standards must be applied to the instant
case. As regards the deficient performance prong of
Strickland, the Court of Appeals found the “record is
void of
any evidence of
any effort by trial counsel
to communicate the [formal] Offer to Frye during the Offer window,
let alone any evidence that Frye’s conduct interfered with
trial counsel’s ability to do so.” 311 S. W. 3d,
at 356. On this record, it is evident that Frye’s attorney
did not make a meaningful attempt to inform the defendant of a
written plea offer before the offer expired. See
supra, at
2. The Missouri Court of Appeals was correct that
“counsel’s representation fell below an objective
standard of reasonableness.”
Strickland,
supra,
at 688.
The Court of Appeals erred, however, in
articulating the precise standard for prejudice in this context. As
noted, a defendant in Frye’s position must show not only a
reasonable probability that he would have accepted the lapsed plea
but also a reasonable probability that the prosecution would have
adhered to the agreement and that it would have been accepted by
the trial court. Frye can show he would have accepted the offer,
but there is strong reason to doubt the prosecution and the trial
court would have permitted the plea bargain to become final.
There appears to be a reasonable probability
Frye would have accepted the prosecutor’s original offer of a
plea bargain if the offer had been communicated to him, because he
pleaded guilty to a more serious charge, with no promise of a
sentencing recommendation from the prosecutor. It may be that in
some cases defendants must show more than just a guilty plea to a
charge or sentence harsher than the original offer. For example,
revelations between plea offers about the strength of the
prosecution’s case may make a late decision to plead guilty
insufficient to demonstrate, without further evidence, that the
defendant would have pleaded guilty to an earlier, more generous
plea offer if his counsel had reported it to him. Here, however,
that is not the case. The Court of Appeals did not err in finding
Frye’s acceptance of the less favorable plea offer indicated
that he would have accepted the earlier (and more favorable) offer
had he been apprised of it; and there is no need to address here
the showings that might be required in other cases.
The Court of Appeals failed, however, to require
Frye to show that the first plea offer, if accepted by Frye, would
have been adhered to by the prosecution and accepted by the trial
court. Whether the prosecution and trial court are required to do
so is a matter of state law, and it is not the place of this Court
to settle those matters. The Court has established the minimum
requirements of the Sixth Amendment as interpreted in
Strickland, and States have the discretion to add procedural
protections under state law if they choose. A State may choose to
preclude the prosecution from withdrawing a plea offer once it has
been accepted or perhaps to preclude a trial court from rejecting a
plea bargain. In Missouri, it appears “a plea offer once
accepted by the defendant can be withdrawn without re-
course” by the prosecution. 311 S. W. 3d, at 359. The
ex- tent of the trial court’s discretion in Missouri to
reject a plea agreement appears to be in some doubt. Compare
id., at 360, with Mo. Sup. Ct. Rule 24.02(d)(4).
We remand for the Missouri Court of Appeals to
consider these state-law questions, because they bear on the
federal question of
Strickland prejudice. If, as the
Missouri court stated here, the prosecutor could have canceled the
plea agreement, and if Frye fails to show a reasonable probability
the prosecutor would have adhered to the agreement, there is no
Strickland prejudice. Likewise, if the trial court could
have refused to accept the plea agreement, and if Frye fails to
show a reasonable probability the trial court would have accepted
the plea, there is no
Strickland prejudice. In this case,
given Frye’s new offense for driving without a license on
December 30, 2007, there is reason to doubt that the prosecution
would have adhered to the agreement or that the trial court would
have accepted it at the January 4, 2008, hearing, unless they were
required by state law to do so.
It is appropriate to allow the Missouri Court of
Appeals to address this question in the first instance. The
judgment of the Missouri Court of Appeals is vacated, and the case
is remanded for further proceedings not inconsistent with this
opinion.
It is so ordered.
