¶38 (dissenting) — At the critical time Darnell Crawford needed effective assistance of counsel to advise him on how to proceed with his defense, he was denied that constitutional right. As a result of his counsel’s deficient performance, he chose to proceed to trial completely unaware that if found guilty, he would be sentenced to life in prison without any possibility of parolé. The majority correctly recognizes, as did the Court of Appeals, Crawford’s counsel’s performance was deficient, yet erroneously concludes that Crawford has not established he was prejudiced by the deficient performance.
C. Johnson, J.¶39 Applying the correct standard of review, Crawford has amply shown prejudice. Crawford established that the deficient performance of counsel denied him any opportunity to attempt to negotiate a plea bargain. The State concedes this opportunity exists. In practice, the State endorses pleas to non-strike offenses in some cases. Furthermore, Crawford has established through testimony that had he known it was a third strike offense, a mitigation package would have been prepared. A “mitigation specialist” from the office of assigned counsel testified she had been successful in all 12 third strike cases in which she had any involvement. Clerk’s Papers (CP) at 291. The specialist testified there are “always” mitigating circumstances. CP at 291. The reasonable probability that the result would have been different has been established. The conviction should be vacated and the case remanded to the trial court to the pretrial stage to begin again.
*104¶40 The facts supporting the charge in this case establish that Crawford shoplifted an MP320 player from a Tacoma Best Buy store, the crime being elevated to first degree robbery and assault when Crawford displayed a firearm to the individuals who chased him into the parking lot. This happened on December 26, 2002, and Crawford was arrested and charged at that time. The State presented its offer sheet on January 15, 2003. The State concedes the offer sheet did not indicate Crawford had two prior “strikes.” The State admits it became aware of the extent of Crawford’s criminal record on February 24, 2003, did no comparability analysis, and did not revise its offer sheet. Nor did defense counsel do a comparability analysis. It was not until a month after trial that the State determined and defense counsel realized the conviction was a third strike. Based on these events, the Court of Appeals and the majority correctly conclude that defense counsel’s performance was deficient for failing to fully investigate Crawford’s criminal history. State v. Crawford, 128 Wn. App. 376, 384, 115 P.3d 387 (2005); majority at 97-98. The only issue centers on whether Crawford suffered prejudice.
¶41 The test for prejudice requires the defendant show “there is a reasonable probability that, but for counsel’s . . . errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) (emphasis added). The majority misapplies this standard in concluding Crawford has not established prejudice. We need not be certain the errors of counsel determined the outcome. In fact, “[t]he result of a proceeding can be rendered unreliable . . . even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome.” Strickland, 466 U.S. at 694 (emphasis added). Instead, a mere reasonable probability of a different outcome is all that is required.
*105¶42 The reasonable probability standard was purposefully constructed to stress the defendant’s constitutional right to counsel and should not be confused with tests that present a higher standard of proof and protect finality of the proceedings. The reasonable probability standard is not as stringent as, for example, the standard for newly discovered evidence claims. For those claims, the court can presume the proceeding was otherwise accurate and fair.21 When presented with an ineffective assistance claim, no such presumption exists.
¶43 A more lenient standard is appropriate here because “one of the crucial assurances” of a reliable result is missing entirely. Strickland, 466 U.S. at 694. Missing a crucial assurance of a reliable result, “finality concerns are somewhat weaker,” id., and the defendant’s constitutional right to effective assistance of counsel is more prominent. Hence, applying the proper standard is crucial to upholding a defendant’s constitutional right to effective representation.
f 44 A false assumption about plea bargains causes the majority to presume this standard cannot be met. Reasoning from the abstract, the majority concludes it is “highly speculative” the prosecutor would charge Crawford with a non-strike offense. Majority at 100 (citing State v. Manussier, 129 Wn.2d 652, 681 n.118, 921 P.2d 473 (1996)). Manussier, in commenting on the effect of POAA (Persistent Offender Accountability Act, RCW 9.94A.570) on plea bargains, noted that prosecutors have less flexibility under POAA and further suggested the prosecutor loses the ability to plea bargain. Manussier, 129 Wn.2d at 681 n.118. However, Manussier does not hold nor does it support the majority’s conclusion that the State has no discretion to plea bargain.
¶45 Empirically, we know prosecutors have discretion to offer pleas in third strike cases. We have reviewed cases where the State has entered a plea bargain to a non-strike *106offense in exchange for a lengthy prison sentence. See In re Pers. Restraint of West, 154 Wn.2d 204, 206, 110 P.3d 1122 (2005) (first degree theft in place of first degree robbery).
¶46 This discretion is also recognized by the State in its concession that it has adopted five criteria for “resolving a three strikes case with a plea to a non-strike offense . . . .” Pet. for Review at 16. The State considers whether there is mitigating information, whether the information is “sufficiently compelling,” and whether the resulting agreement removes a recidivist for a sufficient period. The defendant must agree to plead guilty to a lengthy sentence. Finally, the trial court needs to approve the agreement.22 Majority at 100. The State has substantially more discretion than was outlined by the Manussier comment, and the majority errs by suggesting otherwise.
f47 The majority ignores the prejudice to Crawford because Crawford cannot guarantee the State would have plea bargained to a non-strike offense. The appropriate analysis emphasizes the probability of success, not the odds of failure. We intentionally do not require defendants to prove that the deficient performance “more likely than not altered the outcome in the case.” Strickland, 466 U.S. at 693-94. The bar is much more forgiving. Prejudice exists if “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694 (emphasis added).
148 Here, a different outcome was shown to be reasonably probable. Crawford has presented the testimony of a mitigation specialist who had mitigated 12 third strike cases. In every case in which she had any involvement, she *107had been successful.23 She testified a mitigation package would have been prepared for Crawford if anyone had called on her to do so. At the very least, Crawford should have a chance to present a mitigation package.
f 49 We know Crawford was not informed of the sentencing consequences and premised his decision to go to trial on erroneous information. We also know Crawford’s counsel, acting on this erroneous assumption, did not present a mitigation package and would have prepared one. We know she would have pursued her case more aggressively.24 We know the prosecutor did not know the nature of the Kentucky offense. We know the State has standards to apply in exercising its discretion and did not in this case because the State was unaware of the third strike. We know the mitigation specialist had successfully presented mitigation packages in every third strike case in which she was involved: 12 in all. But for his counsel’s ineffective representation, a series of events did not occur, each of which might have changed the outcome of Crawford’s case.
¶50 The remedy for counsel’s ineffective assistance can be only to put the defendant back in the position he would have been in if the Sixth Amendment violation had not *108occurred. In this case the conviction should be vacated and the case remanded to the trial court to the pretrial stage.
Sanders, Chambers, and Owens, JJ., concur with C. Johnson, J.
MPEG (Moving Picture Experts Group)-l Audio Layer 3.
A newly discovered evidence claim “presupposes that all the essential elements of a presumptively accurate and fair proceeding were present. . . .” Strickland, 466 U.S. at 694.
While the majority correctly recognizes POAA grants no discretion at the sentencing phase, that is irrelevant. In this case, Crawford was denied his constitutional right to effective assistance of counsel at the pretrial stage of the proceedings. At that stage, the State has discretion to reduce the charge to a non-strike offense.
The Pierce County “mitigation specialist” testified that a mitigation package is a collection of information that seeks to explain the defendant’s behavior. CP at 290. To compile a package involves collecting records, interviewing family members, reviewing past crimes, and compiling a social history. CP at 290, 294. The specialist testified that among the many possible mitigating issues, family trauma is “often” a factor. CP at 290. Furthermore, the defendant’s poverty is often a factor in explaining crimes that occur during the holidays. CP at 292. As noted earlier, Crawford’s act of shoplifting occurred the day after Christmas. The package also includes recommendations for avoiding future offenses. CP at 290. The specialist had been employed by the Department of Assigned Counsel since 1990.
Crawford’s original counsel gave several examples of things she would have done differently if she had known it was a third strike case. She would have hired an investigator. CP at 299. She would have sought a longer amount of time to prepare the case. CP at 300. She also would have worked hard to negotiate a non-strike offense with the prosecutor’s office. CP at 300. If the prosecutor was not inclined to accept the non-strike offense, she testified she would “seek [out] the elected official. ...” CP at 300.