§ 17.01 Plea Bargaining

 

[A] Types of Plea Agreements

 

            [1] Charge Bargaining

 

There are two types of “charge” bargaining:

(1) dismissal agreement – a defendant who is charged with multiple offenses pleads guilty to one or more charges, in exchange for which the prosecutor agrees to drop the other charges.

(2) charge-reduction agreement – the defendant and prosecutor agree on a guilty plea to a lesser degree of the original charge.

 

                        [2] Sentence Bargaining

 

Sentencing bargaining also takes one of two forms:

            (1) sentencing recommendation agreement – in exchange for a guilty plea to a given charge, the prosecutor agrees to recommend to the judge a sentence agreed upon by the defendant, or alternatively, to not oppose the defendant's request for a particular sentence;

(2) sentencing agreement – the prosecutor agrees to a specified sentence in exchange for the guilty plea.

 

[B] Disclosure of Agreement to Court

 

Federal Rule of Criminal Procedure 11(e)(2), followed by most states, requires the disclosure of any plea bargain to the trial court when the defendant pleads guilty.

 

[C] Acceptance of Plea Agreement by Trial Court

 

A judge is not required to accept a plea agreement.  If the judge rejects the plea agreement, the defendant must be given the opportunity to withdraw the plea, and must be informed that if he does not withdraw it, “the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.” Fed. R. Crim. P. 11(e)(4).

 

With respect to a guilty plea based on a sentencing-recommendation agreement, the judge must inform the defendant that if the court does not accept the sentencing recommendation, the defendant is not entitled to withdraw the plea.

 

[D] Revocation and Breach of Agreement by Prosecutor

 

The prosecutor may revoke an offer, even after the defendant accepts it, prior to the entry of the plea by the court.  Mabry v. Johnson, 467 U.S. 504 (1984).  However, the prosecutor may not breach the plea bargain once the court accepts it if the guilty plea rests in significant part on the prosecutor's promise.  Santobello v. New York, 404 U.S. 257 (1971) (defendant pleaded guilty based on prosecutor's agreement to not make a sentencing recommendation to the trial judge; months later at the sentencing hearing, in violation of the plea agreement, a different prosecutor sought the maximum sentence, which the judge imposed).  If the prosecutor violates his agreement, the court may order specific enforcement of the agreement or allow the defendant to withdraw the plea.

 

The Supreme Court has suggested that defense counsel should seek to have all aspects of a deal expressly and clearly set out, United States v. Benchimol, 471 U.S. 453 (1985), and in especially complicated or unusual cases, include an express provision mandating judicial construction of a plea agreement, in the event that the parties dispute the meaning of a provision. Ricketts v. Adamson, 483 U.S. 1 (1987).

 

            [E] Hard Bargaining by Prosecution

 

A prosecutor does not engage in “prosecutorial vindictiveness” simply by driving a hard bargain in the plea negotiation process, such as threatening to charge the defendant with a more serious charge if he does not plead guilty.  Bordenkircher v. Hayes, 434 U.S. 357 (1978).

 

            [F] Withdrawal of Plea by Defendant

 

Once a guilty plea is entered by the court but before sentencing, a defendant may not withdraw the plea unless he demonstrates a “fair and just reason” for doing so, such as that the plea was coerced.  United States v. Hyde, 520 U.S. 670 (1997).

           

[G] Evidence of Guilty Plea and Statements Made During Negotiations

 

In federal criminal trials, Federal Rule of Criminal Procedure 11(e)(6) excludes from any civil or criminal proceeding:

·        evidence that the defendant entered a plea of guilty that was later withdrawn.

·        statements made by the defendant to the prosecutor during plea negotiations.

·        statements made by the defendant to the judge during plea proceedings.

 

However, the defendant can knowingly and voluntarily waive the exclusionary provisions.  United States v. Mezzanatto, 513 U.S. 196 (1995).

 

§ 17.02 Guilty Pleas

 

[A] Assistance of Counsel

 

A defendant who intends to plead guilty must be represented by counsel or must validly waive the right to counsel at the pleading stage. 

 

            [B] Competency to Plead Guilty

 

A defendant must be mentally competent in order to validly plead guilty or waive his right to counsel.  The competency standard for pleading guilty or waiving the right to counsel is the same as that applied for determining competency to stand trial, i.e., the defendant must possess “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding” and “a rational as well as factual understanding of the proceedings against him.”  Godinez v. Moran, 509 U.S. 389 (1993).

 

[C] Voluntary and Knowing Plea

 

A guilty plea is valid only if it is made voluntarily and knowingly.

 

                        [1] Voluntary Waiver of Rights

 

A federal trial court may not accept a guilty plea until it determines that the plea is voluntary, i.e., it must not be the “result of force or threats or of promises apart from a plea agreement.”  Fed. R. Crim. P. 11(d).  Rule 11 requires the judge to determine the voluntariness of the plea “by addressing the defendant personally in open court.”  Nevertheless, under Rule 11, any “variance from the procedures . . . which does not affect substantial rights” constitutes harmless error.  Fed. R. Crim. P. 11(h).  This rule supersedes the holding in McCarthy v. United States, 394 U.S. 459 (1969), which held that a guilty plea must be set aside if the district court failed to address the defendant in open court in order to determine the voluntariness of the plea.

 

[2] Knowing Waiver of Rights

 

A guilty plea is invalid if the defendant is unaware of:

(1) the nature of the charges to which he is pleading;

(2) the penal consequences of the plea; and

(3) the nature of the rights he is waiving by pleading guilty.

 

However, a plea is not invalid merely because the defendant or his counsel incorrectly assessed the legal or factual circumstances surrounding the case. Fed. R. Crim. P. 11(c).

 

[a] Nature of the Charges

 

The defendant must be informed of and understand the “critical elements” (e.g., mental state) – but not necessarily all elements – of the crime to which he is pleading guilty.  Henderson v. Morgan, 426 U.S. 637 (1976) (defendant, who possessed substantially below-average intelligence, pleaded guilty to intent-to-kill murder, even though he told the court that he “meant no harm” to the victim; the plea was held invalid because the trial judge determined that neither the defense attorney nor the prosecutor explained to the defendant that intent was a critical element of the crime).

 

[b] Penal Consequences of the Plea

 

Federal Rule of Criminal Procedure 11(c) requires the judge to inform the defendant of any mandatory minimum sentence provided by law, and the maximum penalty for the offense, including any pertinent parole provisions. The judge must also inform the defendant that he is “required to consider any applicable sentencing guidelines but may depart from those guidelines under some circumstances.”

 

Nevertheless, the prevailing view is that the failure of a court to inform a defendant of the direct penal consequences of the plea, even if such failure violates a statute or procedural rule, does not by itself constitute a due process violation.

 

[c] Nature of the Rights Being Waived

 

The judge must inform the defendant that by pleading guilty, he waives the privilege against self-incrimination, the right to trial by jury, and the right to confront one's accusers. Boykin v. Alabama, 395 U.S. 238 (1969); Fed. R. Crim. P. 11(c).

 

Regarding the waiver of the privilege against self-incrimination, if the court intends to question the defendant under oath during the plea proceeding, it must inform the defendant that his answers can later be used against him in a prosecution for perjury.  In contrast, however, the defendant's truthful statements to the judge during the plea proceeding may not be used against him at any subsequent sentencing hearing in that case.  Mitchell v. United States, 526 U.S. 314 (1999).

 

[d] Incorrect Legal Advice

 

An otherwise valid plea is not vulnerable to collateral attack simply because it was based on incorrect legal advice, if the advice was based on “then existing law as to possible penalties.”  United States v. Jackson, 390 U.S. 570 (1968).

 

However, if the defendant entered into a plea agreement based on advice of counsel whose representation was ineffective, the plea may be challenged.  In order to vacate a guilty plea on the ground of ineffective representation, the defendant must prove that the representation was constitutionally deficient and that such deficiency was prejudicial.  [See Chapter 14, Right to Counsel: Pretrial, Trial and Post-Conviction Proceedings.]

 

[D] Factual Basis of the Plea

 

In general, a judge is not constitutionally required to determine whether there is a factual basis for a defendant's guilty plea.  However, when a defendant affirmatively asserts his innocence during the plea proceeding, the trial judge must determine whether there is a factual basis for the plea.  North Carolina v. Alford, 400 U.S. 25 (1970).  If the record “contains strong evidence of actual guilt,” a judge may accept a guilty plea from a defendant despite his assertion of innocence at the plea proceeding.

 

Although not constitutionally mandated, Federal Rule of Criminal Procedure 11(f) requires federal criminal courts to determine whether a factual basis for the plea exists.  The rule does not require the trial judge to believe that the defendant is in fact guilty as long as a factual basis for the plea exists.

 

[E] Forfeiture of Prior Constitutional Claims

 

A defendant who pleads guilty to a criminal charge in state court ordinarily is barred from raising a claim in federal court based on a constitutional violation that occurred prior to the guilty plea, even if such claim might have barred a conviction if the defendant had proceeded to trial on the criminal charge.

 

Nevertheless, a defendant who pleads guilty does not forfeit the following constitutional claims:

·        a procedural defect in the guilty plea procedure itself.

·        the plea was not voluntarily or intelligently made.

·        ineffective assistance of counsel.

·        prosecutorial vindictiveness in the charging process.

·        double jeopardy.

 

§ 17.03 Conditional Pleas (Nolo Contendre)

 

The alternative plea of nolo contendre, available in federal court and some states, allows a defendant to conditionally plead guilty in order to reserve the right, “on appeal from the judgment, to review of the adverse determination of any specified pretrial motion.” Fed. R. Crim. P. 11(a)(2).  If the defendant prevails on appeal, he may withdraw the plea.  If he does not prevail, the plea stands. 

 

All of the provisions of Federal Rule of Criminal Procedure 11 pertaining to guilty pleas apply to pleas of nolo contendere as well, except for the “factual basis” requirement under Rule 11(f).