While I don’t write about my cases, Norm does , and he offers a painful appellate outcome in State v. Pentland.
Mr. Pentland pleaded under the Alford doctrine to two misdemeanors, was given a suspended sentence and was told by his lawyer and the judge that he would not have to register as a sex offender. (The state merely stood by and said nothing, a form of adoption of omission.) The client had every reason to believe he would face a future unclouded by the manifest cruelty and absurdity of the new sex offender regime: humiliating “treatment” by half-ass probation officers bent on humiliation, and, perhaps titillation; registration as an offender, a felony conviction; imprisonment.
A plea bargain, at its core, is merely a deal. And a deal’s a deal. If not to enforce the contractual relationship, whether it’s the social compact or an everyday handshake bargain, what purpose do courts serve?
Many clients are ill suited to face the risk of trial. Many choose to work out a deal of some sort. Even innocent men, like Mr. Pentland, can choose to avoid the risk of conviction by taking a deal. Mr. Pentland thought he had scored a hollow win of sorts with his plea: just a brief period of probation. Indeed, he never admitted to committing a crime at all: An Alford plea permits a client to enter a plea merely by acknowledging that the state’s evidence, if believed by a jury, could carry consequences far worse than those for which he bargained.
Once the deal was cut, the bargain made, and everyone walked away, the defendant learned that the deal had changed, that the understanding spoken out loud in the courtroom, agreed to by all whether expressly or implicitly, that would be written in stone, was suddenly not.
Imagine Mr. Pentland’s surprise when the state claimed he violated his probation by not registering as a sex offender. Didn’t his lawyer and the judge tell him he did not have to register? Didn’t the state stand by silently as this information was relayed to him? Wasn’t this a condition of the plea he entered?
Deal or no deal. Norm took it up and the answer was “no deal.”
Graciously, the court offered Pentland the opportunity to withdraw his plea, thus not merely undoing the bargain he made but putting him in the worst of all possible positions. The absolute last thing he wanted to do was go to trial. As alternatives go, the idea of going back to the starting gate fell slightly behind sticking a needle in his eye. But this is the means of extortion courts use to give the appearance of relative fairness. It’s not like they didn’t offer the defendant an option. He doesn’t like it? So, go to trial and take your chances. I can hear the laughter coming from chambers ringing still.
When it comes to bargains between defendants and federal prosecutors, the courts have understood it to be a matter of contract and enforced it as such. Why should it be different when the deal is between the defendant and the state? Is there no interest in promoting the integrity of the law when it’s the newest flavor in the state’s smorgasbord against crime? Does the notion of responsibility, finality, adherence to the law mean nothing when the state is involved? Apparently so.
As Norm points out, there was a bit of a failure at the time of plea, when the defendant’s lawyer could have, and should have, done more to lock up the deal, or at least inform the defendant that they were trying to fly under the legal radar and might ultimately crash. Norm was left to try to pick up the pieces afterward, always a difficult thing but very much part of a lawyer’s job. We’re janitors at times, cleaning up someone else’s mess.
But there is much to commend the idea of a plea bargain as an enforceable contract rather than a game of Russian Roulette for the defense. The state demands much of its citizens, not the least of which is fidelity to its obligations. Let the state be subject to the same. And let the defendant be able to fully rely upon the words of a judge when compromising his life. To do less is not merely disgraceful, but reduces the law to a farce.
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I’ll ignore the “a deal is a deal” aspect of this (which I agree with) at my own peril and comment on what you may consider a tangential aspect…
If the defendant does not want to withdraw his plea and start at square one, because the risk of trial is too great for his liking, even though not taking the court up on that offer effectively adds the condition of registration to his probation, then it’s a fair bet to say that had he been advised properly the first time around (this plea includes registration) that he would have taken the deal with that condition.
Back on topic, yes, while I like the idea of specific enforcement in this particluar case, I can imagine a few situations where I would object to it (e.g., defendant, D attorney, prosecutor and judge all agree to/rubber stamp/accept a sentence greater than the maximum allowable by law).
I’m just not certain that giving D the opportunity to undo the whole thing and start over is so manifestly unjust, given that he is simply agreeing after the fact to the extra condition. Now, had he not been given the “square one option” that would be an entirely different proposition.
Let’s consider the problem in context. In negotiating a plea, there are a variety of things that are traded off, one of which might be SOR. The defendant gave something up to gain the benefit of not having to register. One of the things he gave up is his reputation, having been convicted of the crime, albeit by Alford plea. His reputation is now gone, and he’s served out his probation while being named on the SOR. Having done that, the option of starting over won’t restore his reputation or his probation, and being named as a Sex Offender can’t be forgotten. So returning him to the status quo ante doesn’t restore him to his earlier position, but leaves him having paid the full price of his side of the bargain without getting the benefit for which he paid.
If you think of it in non-criminal terms, what if you agreed to buy a house that included a lovely chandelier. After you paid and went to look at your new chandelier, you found it gone. The sellers took it. One way of dealing with it is to enforce the contract and force them to return the chandelier to its proper place. Another is to compensate you for the missing chandelier. A third is to void the contract ab initio. The third choice leaves you homeless, having sold your home and moved all your things. What if the third was the only option offered by a court?
Not a bad analogy, and I ain’t saying the defendant didn’t get screwed. Just wondering about something that can’t be known (and shouldn’t be considered in the legal process)… would D have taken the deal if he had known about being on SOR.
Also, I suppose I should have considered the extra burden of being on SOR while attempting to vacate the plea, but there are plenty of analogies to similar unfairnesses in the crim justice system. I file that in the same place as sitting in jail while waiting for your aquittal. I don’t think you ever get that time back either, at least in Texas. (I bet you fancy Yankees have got that one solved though.)
N.B. I ain’t saying the D didn’t get screwed.
The fact that there are many unfair aspects to the system isn’t a justification to make more. And don’t try to pull that Texas country lawyer crap on me. I’m on to your game, pardner.
What if the state knows that all the “evidence” it supposedly has is perjury and fabrication? Is a deal still a deal then? Or is that fraud, or something worse?
Just wondering.
Sir, thanks for explaining what an ‘Alford Plea’ is. It would be very nice to know what type of plea I ate for lunch back in Harris County, Tx. (1984.) BTW – no spit, no ketchup. All along I’ve been calling it plea bargaining process abuse. Hope this info. helps in determining the type should you be so kind to do so.
During lunch recess and talking freely amongst all present, my attorney said my probation had been revoked at time of arrest and guilty or not I was going to prison for 5 yrs, take the 10, get out in three, get on with your life. (couldn’t fire him due to him being highly recommended to my family and they borrowed money to pay him.) On the way to the Judges chambers, he told me to say no if asked if I had anything to say. But I said yes. If it’s the last thing I do, I’ll prove I’m not guilty. Told to shut up, sign and stop wasting his time.
‘Not Guilty’ is crossed out and nolo contendere written above it stating that it occurred in ‘Open Court.’ Adult Probation Dept. recorded it being revoked upon signing the paperwork. The HPD report indicates that I pled to a crime pulled off by a suspect with straight black hair, black skin, with no facial hair.
The jury could clearly see that I was white, with sun streaked curly brown hair, with a mustache. No weapons recorded in the case but for the .22 or .25 cal. blk. revolver with two-inch barrel used by the robber. Somehow, the ADA was able to place a .38 cal. Rohm (Mystery Gun) on a table in front of the jury. Might as well been a frigin machine gun or a grenade due not having anything to do with the case and/or me. That’s what you get when someone refers what turns out to be a Will & Divorce attorney itching to try his first & only felony case all the way to lunch recess. Thanks.
No plea undermines the prosecution’s predicate obligations, such as Brady, or creates jurisdiction where there is none.
So if a D.A. strikes a deal with a hypothetical defendant that the defendant will plead guilty to a lesser charge and do 2 years in jail, and at 1 year and 363 days, someone says, “Oops… we goofed… the statutory minimum sentence is 3 years,” what then? The defendant has a choice of either staying in jail another year or withdrawing his plea and standing trial on the original charges?
I read the decision in Norm’s case and the decision is offensive.
How often does it happen that a court initially approves a plea deal’s terms and then subsequently won’t enforce it?
(If this is 5,000,001, let me know, break it to me gently, please)
Illegal sentences are infrequent, but do happen, As sentences, as well as collateral consequences, become more involved, mistakes are more likely and more common. Remember those who said after Padilla that it’s no big deal to determine the consequences of a sentence on immigration?
I think the answer is a little more complicated than that and its one of those places where the tension of our absolute duties to our individual clients is most in tension with the desire most of us have to improve the system as a whole.
When I show to a prosecutor that they cannot prove their case or even that there is strong evidence of actual innocence and the prosecutor’s response is to offer a sweetheart plea that is very difficult for the client to risk refusing, the prosecutor has abdicated its responsibility to dismiss a case when there does not exist a good faith belief that the case can be proved BARD based on admissible evidence.
The problem is there is no way we ever stop this because we are required to relay the offer and advise the defendant that refusing the offer involves risk, which some clients won’t be willing to take.
So, in your example John, if I show the DA that the cops and complaining wit in a child molest case where the client is looking at like in prison and the DA’s response is to offer 4 years in prison that my client already has credit for, the crusader in me wants to do something about such an unjust situation, but the lawyer in me has to explain to my client that it would be a monumental risk to refuse the offer.
In your example, the defendant could probably withdraw the plea without losing the custody credits. This one was different in that he had served probation, which isn’t thought of in terms of something you earn credits against, it simply runs.
But if D went to trial and paid the tax, he could get full credit for time served but double the sentence after trial. Not a great deal.