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Overstating Possible Punishment and the (In)voluntary Nature of the Plea — Part II

Posted on June 4, 2012 by Jessica Smith

In a blog post here, I wrote about overstating possible punishment and the voluntary nature of a plea. In that post, I discussed the dangers of overstating the possible maximum sentence with respect to consecutive sentences and recent changes to post-release supervision. That post prompted questions about a related issue. Here’s the set up: At a plea proceeding in North Carolina, it’s my understanding that the trial judge typically advises a defendant of the maximum sentence that could be imposed by going “all the way up and all the way over” on the sentencing grid. This results in the judge advising the defendant of a maximum associated with an aggravated sentence at prior record level (PRL) VI. And now the questions: What if the State hasn’t given notice of any aggravating factors? What if the defendant has no PRL points? In these scenarios has the trial judge overstated the maximum possible sentence and opened the plea up to a challenge? Since my prior post didn’t address this issue, I’ll do that now.

G.S. 15A-1022(a)(6) provides that when taking a plea, the trial judge must inform the defendant of “the maximum possible sentence on the charge for the class of offense for which the defendant is being sentenced” (emphasis added). At least two unpublished decisions have held that “nothing in G.S. § 15A-1022(a)(6) requires the trial court to adjust the ‘maximum possible sentence’ based on a particular defendant’s projected prior record level.” State v. Felton, 167 N.C. App. 807 (2005) (unpublished); see also State v. Hayes, 171 N.C. App. 515 (2005) (unpublished) (“Contrary to defendant’s assertion, nothing in N.C. Gen. Stat. § 15A-1022(a)(6) requires a trial court to tailor the information regarding the maximum and minimum possible sentences for an offense by inquiring into each defendant’s projected prior record level.”). One of those cases reasoned: “Such a requirement would conflict with the procedural framework established for guilty pleas under Article 58, since at the time of the plea colloquy . . . the defendant’s prior record level is indeterminate.” Hayes, 171 N.C. App. 515. The fact that both cases are unpublished lessens their value. Additionally, both relied in part on State v. Byrd, 164 N.C. App. 522 (2004) (Byrd I), a pre-Blakely case that made the cited statement in the context of wrongly deciding a Blakely issue. State v. Byrd, 175 N.C. App. 247 (2005) (so holding on a post-Blakely appeal after a new sentencing hearing was held following Bryd I). On the other hand, amplifying the holding of those cases is G.S. 15A-1340.11(7), which provides that PRL is determined at sentencing, not at the plea proceeding. As my colleague Jamie (“Sentencing Guru”) Markham noted to me, if there is a time lag between the plea and the sentence and the defendant accrues another conviction in that time period, that conviction can count for PRL purposes under State v. Pritchard, 186 N.C. App. 128 (2007). If that happens and the judge has under-advised as to sentence, error occurs. State v. Reynolds, __ N.C. App. __, 721 S.E.2d 333, 334 (2012) (the defendant’s plea was not constitutionally valid where the trial judge misinformed the defendant of the maximum sentence he would receive; the trial court told the defendant that the maximum possible sentence would be 168 months’ imprisonment when the maximum sentence (and the maximum ultimately imposed) was 171 months; the court rejected the State’s argument that the defendant was not prejudiced by this error).

What about the “all the way up” (and into the aggravated range) part of the typical advisement? If the State hasn’t given notice of any aggravating factors the defendant cannot—as a matter of law—receive an aggravated sentence. See G.S. 15A-1340.16(a6) (State must give notice of aggravating factors); State v. Mackey, __ N.C. App. __, 708 S.E.2d 719, 722 (2011) (error to impose an aggravated range sentence when the State failed to provide proper written notice). On this issue, arguments can be made both ways. On the one hand, it might be argued that by analogy to the PRL cases, nothing in G.S. 15A-1022(a)(6) requires the trial court to adjust the “maximum possible sentence” based on a particular defendant’s situation. On the other hand, that argument is undercut by the fact that unlike PRL which is “indeterminate” at the time of plea, whether a defendant can receive an aggravated sentence isn’t entirely indeterminate; if the State failed to give notice, an aggravated sentence can’t be imposed. If this latter argument carries the day with respect to a defendant who hasn’t been given notice of aggravating factors, the maximum possible sentence is at the top of the presumptive range.

But that’s not all! There is a constitutional overlay to this issue. By entering a guilty plea the defendant waives several constitutional rights. To be valid, the defendant’s waiver must be knowing, voluntary, and intelligent. Regardless of how the statutory interpretation issue plays out, a defendant still can argue that when the judge over-advised him or her of the consequences of the plea using a “generic” maximum versus a “defendant-specific” maximum this undercut the knowing, voluntary, and intelligent nature of the plea. As I discussed in my prior post, if the overstatement is significant enough and if the defendant suffers prejudice as a result, there may be a basis to invalidate the plea. See also LaFave, Israel, King & Kerr, 5 Criminal Procedure 830 (“it would seem that a significant overstatement of the maximum possible punishment would be objectionable whenever it skewed defendant’s understanding of the value of his plea bargain”).

I have not done exhaustive research on the issue but my work hasn’t turned up good N.C. authority that answers this question directly, either on the statutory interpretation issue or the constitutional issue. If you know of any law on point, please post a comment.

Category: Procedure, Uncategorized | Tags: guilty pleas, overstating, plea agreements, voluntariness

Overstating Possible Punishment and the (In)voluntary Nature of the Plea

Posted on March 27, 2012 by Jessica Smith

In a post here discussing application of post-release supervision periods to multiple sentences Jamie raised the question of whether over-advising a defendant as to the maximum possible sentence associated with pending charges can undercut the knowing, voluntary and intelligent nature of a plea. Let’s recap the issue. Suppose a defendant is contemplating pleading guilty to two Class C felony reportable sexual assault charges committed after December 1, 2011. The highest possible minimum for each offense is 182 months. The corresponding maximum is 279 months. Built into this maximum is a 60-month period of post-release supervision. Suppose that when advising the defendant as to the maximum possible sentence, accounting for consecutive sentences, the trial judge doubles 279, getting a maximum of 558 months. The judge so advises the defendant and the defendant pleads guilty and is sentenced.

As Jamie’s post clarifies, the judge’s advisement overstated the total maximum sentence that could be imposed for the consecutive sentences. If the sentences run consecutively, only one post-release supervision period is imposed. Because our defendant has two offenses, one 60-month post-release period must be subtracted from the maximum. This means that the maximum sentence is 558 minus 60 months, or 498 months. Assume now that the defendant files a motion for appropriate relief (MAR). He alleges that his plea was not knowing, voluntary, and intelligent because the judge overstated the maximum possible sentence and his lawyer never corrected the error. He further alleges that had he known the correct maximum, he would not have pleaded guilty. How does our defendant fare?

Case law suggests that a dramatic overstatement as to the maximum possible sentence can invalidate a plea. In Manley v. United States, 588 F.2d 79 (4^th Cir. 1978), for example, the defendant was charged with six drug offenses and decided to enter a plea of nolo contendere to all counts. There was no plea bargain. At the plea proceeding, the trial court accurately told the defendant that the maximum punishment that could be imposed on each count was 15 years in prison, a fine not to exceed $25,000, or both, along with a special parole term of at least 3 years. The court further explained that because Manley faced six charges, the maximum term to which he might be sentenced would be 90 years plus $150,000 in fines. This latter advisement was incorrect. Under the relevant law, a number of the counts had to be merged and as a result the maximum sentence he could have received if the sentences ran consecutively was 60 years. The judge thus overstated the maximum by thirty years. The judge went on to accept Manley’s plea and sentence him to twelve years’ in prison with three years of special parole.

Manley later moved to have his sentence vacated arguing that because he was misinformed about the maximum sentence, his plea was not knowing, voluntary, and intelligent. The Fourth Circuit began by acknowledging that for a plea to be knowing, voluntary, and intelligent, a defendant “must have ‘a complete understanding of the possible sentence.’” Id. at 81. However, it noted, this rule did not “establish a per se rule that every error in sentence advice will permit the accused later to upset his guilty plea.” Id. For example, the court stated, if Manley’s lawyer correctly informed him of the maximum sentence, the judge’s error would not invalidate the plea. Id. Thus, the court determined, the “central question” is whether Manley “actually knew” what sentence might be imposed. Id. at 82. On this point, the court determined that a remand was required:

[B]ecause Manley’s counsel stated only that he was satisfied his client understood the nature of the charges and the consequences of the pleas, it is possible that Manley’s counsel had correctly advised his client of the sentencing possibilities, and by that provided the requisite understanding, or Manley may have been otherwise so advised. Accordingly, we vacate the judgment . . . and remand for further proceedings to determine whether Manley was informed of the maximum sentence that might have been imposed. If Manley were so informed, it follows that, despite the misapprehensions of court and prosecutor, his plea as to this point was in fact voluntary and intelligent. If the court below should find that he was not so informed, Manley’s conviction must be vacated and he should be allowed to plead anew. A thirty-year error in sentence advice cannot, we think, satisfy the requirement . . . that the defendant have “a complete understanding of the possible sentence.”

Id. The court made clear if Manley did not actually know the correct maximum, the magnitude of the error in this case would invalidate the plea. See also Hammond v. United States, 528 F.2d 15 (4^th Cir. 1975) (maximum overstated by 45 years). But what about a lesser error? Elsewhere, the court suggested that an error as to “a few years” with respect to a “long term” may not invalidate a plea. Manley, 588 F.2d at 82. It’s noteworthy that Manley stated that its rule would apply regardless of whether or not a plea agreement was in place. Id. at 81 (“[T]he requirement that a guilty plea be voluntary and intelligent applies to all guilty pleas, not merely those in which a plea bargain has been struck.”).

In the example above the judge overstated the maximum by five years. That’s well short of the thirty years at issue in Manley but it’s not an insignificant period of time. In the end, regardless of whether a defendant can invalidate a plea on this basis, the best practice for the trial judge is to correctly advise the defendant with respect to the maximum possible sentence. This may mean some fancy calculations when the charges have different post-release supervision periods but I don’t see a way to avoid this difficulty. If you think otherwise, let me know.

Category: Procedure, Uncategorized | Tags: guilty pleas, plea agreements, voluntariness

Ineffective Assistance and Plea Bargaining

Posted on March 26, 2012 by Jeff Welty

The Supreme Court decided two cases last week about ineffective assistance of counsel during plea bargaining. The cases, Lafler v. Cooper and Missouri v. Frye, made a big splash in the media. Locally, they were featured on front page of the News and Observer. Nationally, they’ve been the talk of the New York Times and have been relentlessly discussed in the blogosphere. They’ve also caused some alarm among North Carolina prosecutors and judges, some of whom fear that any defendant who turns down a plea offer, goes to trial, and gets a sentence more severe than what was offered will now have a meritorious claim of ineffective assistance.

The facts of Lafler are as follows. The defendant “pointed a gun toward [the vicitim’s] head and fired.” He missed, the victim fled, and the defendant chased after her, wounding her “in her buttock, hip, and abdomen.” He was charged with assault with intent to murder and three other offenses. Prior to trial, the prosecutor offered to dismiss two of the charges and to agree to a sentence of 51 to 85 months on the other two if the defendant would plead guilty. “In a communication with the court [the defendant] admitted guilt and expressed a willingness to accept the offer,” but he later rejected the offer, apparently because his lawyer advised him that the prosecution could not establish an intent to murder due to the fact that the victim had been shot below the waist. The defendant went to trial, was convicted on all counts, and was sentenced to 185 to 360 months.

The defendant then sought post-conviction relief, arguing that he had received ineffective assistance of counsel when his attorney had advised him to reject the plea offer. He was unsuccessful in Michigan’s state courts, but a federal district court ruled in his favor and ordered specific performance of the original plea offer. The Sixth Circuit affirmed, and the Supreme Court granted review.

Justice Kennedy, writing for a five-Justice majority, began by stating that the Sixth Amendment right to the effective assistance of counsel extends to pretrial stages, including plea bargaining. Referring to the two-pronged standard for ineffective assistance claims established by Strickland v. Washington, 466 U.S. 668 (1984), the majority noted that the parties agreed that defense counsel had performed deficiently in advising the defendant that he could not be convicted of the assault charge. The issue, then, was how to apply the prejudice prong of Strickland to cases in which the alleged harm was proceeding to what, by all accounts, was a fair and impartial trial.

The Court held that a defendant may establish prejudice by showing that but for counsel’s deficient performance, (1) the defendant would have accepted a plea offer, (2) the court would have approved it, and (3) it would have resulted in a less severe sentence than that actually imposed after trial. It noted that most of the federal circuits have already adopted this test, and rejected the state’s suggestion that so long as the defendant received a fair trial, he had received all that he was entitled to under the Sixth Amendment:

In the end, [the state’s] arguments amount to one general contention: A fair trial wipes clean any deficient performance by defense counsel during plea bargaining. That position ignores the reality that criminal justice today is for the most part a system of pleas, not a system of trials. Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. . . . [T]he right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining plays in securing convictions and determining sentences.

As to the proper remedy, the Court held that it depends on the nature of the offered plea:

If the plea bargain would have involved a guilty plea to the same crime or crimes of which the defendant was ultimately convicted at trial, so that “the sole advantage [the] defendant would have received under the plea is a lesser sentence,” then the defendant may be resentenced, and the court “may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.”
If the plea bargain would have involved a guilty plea to crimes less serious than those of which the defendant was ultimately convicted at trial, resentencing alone may be insufficient. Instead, a court may “require the prosecution to reoffer the plea proposal. Once this has occurred, the judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.”

The Court said very little about what factors a court should weigh when exercising the “discretion” referenced in both remedies, suggesting only that the defendant’s previously expressed willingness to accept responsibility, and any facts learned about the crime or crimes after the original plea offer was made, may be considered. As to the suggestion that its holding might unleash a flood of ineffective assistance claims, the Court noted that claims of this type have been recognized in the lower courts for over 30 years, and the predicted tsunami has yet to appear.

Justice Scalia wrote the principal dissent. He argued that when a defendant receives a fair trial, he has received what he is guaranteed by the Constitution. Since a defendant has no right to a plea bargain, he has suffered no cognizable harm when he receives what he is entitled to rather than what might be described as essentially a windfall offer from the prosecution. Justice Scalia, and Justice Alito in a separate dissent, also criticized the remedies established by the majority opinion, describing that portion of the majority opinion as “incoheren[t]” and “opaque.”

Frye is a companion case to Lafler. It concerns a defendant whose attorney failed to communicate a favorable plea offer to him. The defendant subsequently pled guilty on less favorable terms. He sought, and obtained, post-conviction relief based on ineffective assistance of counsel. The case reached the Supreme Court, which held that defense attorneys have a duty to communicate plea offers to their clients, and that the attorney in this case violated that principle. The Court also concluded that the defendant would likely have accepted the offer, since he later accepted a less advantageous one. However, the Court remanded the case to the Missouri state courts for further consideration on the issue of prejudice. Because the defendant had been rearrested and charged with a new crime after the offer was made, the Court thought that the prosecution might have rescinded the offer if the defendant had tried to accept it, or that the court might have rejected it. In the course of discussing the case, the Court suggested that the state may guard against later ineffective assistance claims by making plea offers formally and in writing; by tracking the processing of and response to such offers; and by noting any plea negotiations on the record before a case reaches disposition.

A few thoughts about these cases:

The media frenzy notwithstanding, I don’t think that they’re earth-shattering. They won’t be relevant at all except in cases in which there was a trial, in which the trial resulted in a conviction, in which a plea offer was made before trial, and in which the conviction was accompanied by a sentence more severe than that which would have accompanied the plea offer. Already, we’re talking about a small fraction of all cases. Then, the defendant would need to show that counsel performed deficiently. Lafler and Frye involved very unusual facts in that regard, with counsel either failing to communicate a plea offer at all or providing legally inaccurate advice about a central issue in the case. Of course, a defendant can spuriously claim that counsel performed deficiently, but most defense attorneys already document their files in a way that will make such bogus claims very hard to win. For example, many attorneys convey plea offers to their clients in writing, or at least make written notes concerning any offer and the defendant’s response. Attorneys who have not previously done so might be well-advised to begin.
Prosecutors and judges can take steps to try to foreclose illegitimate claims. Some of these steps were suggested by the Court in Frye. For example, prosecutors can make offers in writing and can ask for a written response. Or prosecutors can make plea offers in open court at an administrative setting, as is apparently done in at least one North Carolina district. Or they can put the status of plea negotiations on the record, in the presence of the defendant and defense counsel, before the disposition of each case. Judges may choose to engage in a brief colloquy with the defendant verifying the prosecutor’s version of events. None of these techniques will completely eliminate the possibility of a fraudulent Lafler claim, and some of them raise other issues. (For example, when a judge is informed about plea offers rejected by the defendant, the judge must be very careful at sentencing to avoid any suggestion that the judge is punishing the defendant for going to trial.)
The Court’s remedy discussion is strange. On this point, I agree with Justices Scalia and Alito. Remember, the remedy issue doesn’t arise unless a court has already concluded that a Sixth Amendment violation has taken place, because a defendant was offered a favorable plea that he would have taken but didn’t because of counsel’s deficient performance, and the defendant suffered a more severe sentence as a result. Under such circumstances, why would a court have the discretion to deny relief? The Court seems to suggest that, in some cases, there is a Sixth Amendment right without a remedy. I suspect that in most cases, judges will and should exercise their discretion to put the defendant in the position he would have been in but for counsel’s ineffective assistance. In other words, I suspect that it will be uncommon for judges to find a Sixth Amendment violation but decline to repair it.

Sorry for the long post. As always, I welcome your thoughts on all these issues.

Category: Procedure, Uncategorized | Tags: frye, ineffective assistance of counsel, lafler, plea agreements, plea bargaining

Restitution to Victims of Unconvicted Conduct

Posted on April 7, 2010 by Jamie Markham

Can a defendant be ordered to pay restitution based on offenses that did not result in a conviction? Of course a defendant should not be ordered to pay restitution for a charge on which he or she was acquitted. State v. Bass, 53 N.C. App. 40 (1981) (restitution order for alleged food stamp overpayments was invalid when the defendant was found not guilty of food stamp fraud). But what about the defendant who breaks into 10 different houses but is only charged and convicted—perhaps pursuant to a plea agreement—of three counts? Can he or she be ordered to make restitution for items stolen from the other seven houses?

Under G.S. 15A-1340.34(a),“[w]hen sentencing a defendant convicted of a criminal offense, the court shall determine whether the defendant shall be ordered to make restitution to any victim of the offense in question.” That provision appears to limit restitution to crimes of conviction, and our courts have generally read it that way. In State v. Wilburn, 57 N.C. App. 40 (1982), for example, a defendant was convicted of attempting to obtain property by false pretenses based on a scheme in which he would take money from grocery store owners, promising to deliver below-cost cigarettes that he never actually intended to deliver. At his trial for taking money from a grocer named Johnny Andrews, the state called another store owner, Donald Thomas, who testified that the defendant had done the same thing to him the previous year. As part of the defendant’s sentence, the trial court ordered the defendant to pay restitution for the money he took from Donald Thomas. The court of appeals held this portion of the sentence was invalid, as there was no conviction for obtaining property by false pretenses from Mr. Thomas. To allow the restitution order and then revoke the probation of one who fails to pay it would, the court said, run afoul of Article I, Section 28 of the North Carolina Constitution, which prohibits imprisonment for debt.

What if a defendant agrees to pay victims of unconvicted acts as part of a plea agreement? Some other states word their restitution statutes in a way that expressly allows this. In Idaho, for example, the court “may, with the consent of the parties, order restitution to victims and/or any other person or entity, for economic loss or injury for crimes which are not adjudicated or are not before the court.” Idaho Code § 19-5304(9). Washington law includes a similar provision. Rev. Code. Wash. 9.94A.750(5) (“[R]estitution may be ordered . . . if the offender pleads guilty to a lesser offense or fewer offenses and agrees with the prosecutor’s recommendation that the offender be required to pay restitution to a victim of an offense or offenses which are not prosecuted pursuant to a plea agreement.”). And so does the United States Code. 18 U.S.C. § 3663 (“The court may also order, if agreed to by the parties in a plea agreement, restitution to persons other than the victim of the offense.”).

Restitution is mentioned in North Carolina’s guilty plea statute, but not in a way that clearly authorizes payments to victims of unconvicted offenses. G.S. 15A-1021(c) says that a “proposed plea arrangement may include a provision for the defendant to make restitution or reparation to an aggrieved party or parties for the damage or loss caused by the offense or offenses committed by the defendant.” There’s no mention of conviction in that subsection—only offenses—which might weigh in favor of allowing agreements to pay restitution for unconvicted acts. But subsection (d) says any restitution order under subsection (c) must be in accordance with Article 81C of Chapter 15A, which brings us back to the “convicted of a criminal offense” language of G.S. 15A-1340.34.

So there’s no clear authority for ordering restitution to victims of offenses other than the crime of conviction. But there doesn’t appear to be explicit authority against it either—at least in the context of a voluntary plea agreement. The Wilburn case discussed above was not a plea, and the defendant didn’t consent to the restitution order to Donald Thomas. Other cases have said the criminal courts cannot compel a defendant to confess judgment against a victim—“something which is in the realm of a civil forum”—as a condition of probation. State v. Clemmons, 111 N.C. App. 569 (1993). But again, that case concerned a compelled restitution order.

Despite the lack of a clear prohibition, I see at least two problems with plea agreements to pay restitution to victims of unconvicted offenses. First, a defendant’s agreement to a condition of probation at sentencing does not preclude him or her from challenging the condition later at a probation violation hearing. G.S. 15A-1342(g) (“The failure of a defendant to object to a condition of probation imposed pursuant to G.S. 15A‑1343(b1) at the time such a condition is imposed does not constitute a waiver of the right to object at a later time to the condition.”); State v. Cooper, 304 N.C. 180 (1981). If the defendant successfully challenged the condition at that point, the victim might be left out in the cold—particularly if the statute of limitations on a related civil suit had already run. (Ordinarily G.S. 1-15.1 would operate to toll the statute of limitations on a related civil action, but that law is limited to “damages arising out of the offense for which the defendant was convicted.”) Second, I think even a voluntary restitution order might run afoul of the North Carolina Supreme Court’s admonition against “use of the criminal process to enforce the payment of a civil obligation”—the very “oppressive action which [Article I, Section 28 of the state constitution] was designed to forbid.” State v. Caudle, 276 N.C. 550 (1970).

Given these concerns about the validity of restitution orders for unconvicted acts, district attorneys might, in cases involving multiple victims, consider structuring plea agreements around consolidated judgments or concurrent sentences in lieu of dismissing some of the charges. Your thoughts?

Category: Sentencing, Uncategorized | Tags: plea agreements, plea bargaining, restitution

Package Deal Plea Bargains

Posted on January 22, 2010 by Jeff Welty

The court of appeals decided State v. Salvetti this week. The case involves several interesting issues, but I want to focus on the court’s approval of “package deal” plea bargaining.

In Salvetti, the defendant and his wife were charged with abusing their son. The defendant entered into a plea bargain, under which he pled guilty to Class E felony child abuse in exchange for the dismissal of a charge of Class C felony child abuse. His wife entered into what appears to have been a similar arrangement. Subsequently, the defendant moved to withdraw his plea, alleging in part that he was innocent and that he entered into the plea bargain only because it was part of a package deal, i.e., because the state’s plea offer to his wife was contingent on the defendant pleading guilty as well. This, he asserted, amounted to “improper pressure” to plead guilty in violation of G.S. 15A-1021(b) and the Constitution. There’s some support for this argument in Bordenkircher v. Hayes, 434 U.S. 357, 365 n. 8 (1978), where the Court noted that a plea bargain involving leniency for a third person “might pose a greater danger of inducing a false guilty plea by skewing the assessment of the risks a defendant must consider.”

Back to Salvetti, the trial court denied the defendant’s motion to withdraw his plea, and the court of appeals affirmed. Here’s what it said, pretty much in its entirety:

Package plea deals offer leniency for a third party that are made contingent on the defendant pleading guilty. While North Carolina appellate courts have not directly addressed the issue of the voluntariness of package deal pleas, other jurisdictions both federal and state, have found they are not per se involuntary. See United States v. Mescual-Cruz, 387 F.3d 1, 7 (1st Cir. 2004); Howell v. State, 185 S.W.3d 319, 334 (Tenn. 2006)(concluding that a majority of jurisdictions have found package pleas are not invalid per se).

The Fourth Circuit has noted that package plea deals present a greater risk of inducing a false guilty plea by altering the defendant’s assessment of the attendant risks. [United States] v. Marrow, 914 F.2d 608, 613 (4th Cir. 1990). We hold that the prosecutor did not use improper pressure to induce defendant’s guilty plea, thus defendant’s argument is without merit.

The bottom line, obviously, is that the court approved the use of package deal plea bargains. But I still recommend the following, based on a review of the case cited by the court and a number of other cases on package deals.

Package deals should be disclosed to the court. The overwhelming majority of courts considering package deals have required that they be disclosed to the judge taking the pleas. See, e.g., Mescual-Cruz, supra; Howell, supra; In re Ibarra, 666 P.2d 980 (Cal. 1983).
The judge taking the pleas should be especially alert to any indication that any plea is the result of one defendant’s coercion of another. Some courts have required alterations to the plea colloquy in package deal cases in an attempt to sniff out coercion, see, e.g., Ibarra, supra, but most have simply encouraged judges to be particularly vigilant.
Although courts have generally recognized that one defendant may properly “elect[] to sacrifice himself” for another, United States v. Carr, 80 F.3d 413 (10^th Cir. 1996), the risk of an innocent defendant sacrificing himself for another appears to be greatest when the relationship between the defendants is very close — for example, parent and child — and the punishment to be avoided by the plea bargain is very severe — for example, the death penalty. Even in such circumstances, package deals probably are not per se invalid, but both prosecutors and judges should proceed with extra caution when the stakes are high and the defendants are close.

Category: Procedure, Uncategorized | Tags: package deals, plea agreements, plea bargaining, voluntariness

Waivers in Plea Agreements

Posted on October 12, 2009 by Jeff Welty

When a defendant pleads guilty, he waives a variety of rights, including the right to a trial, the right to confront the witnesses against him, and so on. The waiver of those rights is inherent in a guilty plea — there can’t be a guilty plea without such a waiver.

If a defendant doesn’t just plead guilty, but does so pursuant to a plea agreement, the defendant may waive other rights as specified in the plea agreement. For example, a defendant may agree to waive his right to appeal. That’s not inherent in the idea of pleading guilty — defendants who plead guilty normally retain the right to appeal certain issues, as described in G.S. 15A-1444(a1)-(a2). Instead, it’s part of the give-and-take of plea negotiations, so at least in theory, the defendant should be getting something in return for the additional waiver of rights.

The Washington Post published an article this weekend about the use of “DNA waivers” in plea agreements in federal court. Essentially, some federal prosecutors’ offices ask defendants who plead guilty to waive their rights to post-conviction DNA testing, to which they might otherwise be entitled under 18 U.S.C. § 3600. It sounds like some offices essentially always require such waivers, while other offices sometimes do, and others never do. The story says that the Department of Justice is going to review the use of such waivers.

There are several types of additional waivers that could conceivably be part of a plea agreement in North Carolina.

Waiver of the right to appeal. Cf. United States v. Marin, 961 F.2d 493 (4th Cir. 1992) (waiver of appellate rights generally valid and enforceable, except against a limited class of claims, such as that the defendant was sentenced “based on a constitutionally impermissible factor such as race”); Wayne R. LaFave, Criminal Procedure § 21.2(b) (noting a split of authority on propriety of such waivers, though the greater weight of authority, including all the federal circuits, supports their validity).
Waiver of the right to file post-conviction petitions, such as motions for appropriate relief. Cf. United States v. Lemaster, 403 F.3d 216 (4th Cir. 2005) (waiver of collateral attack rights generally valid and enforceable; the court relied on such a waiver to dismiss a claim of ineffective assistance of counsel).
Waiver of the right to post-conviction DNA testing under G.S. 15A-269.
Waiver of the right to the preservation of biological evidence under G.S. 15A-268, or recordings of interrogations under G.S. 15A-211(h).
Waiver of the right to reclaim evidence seized as part of the investigation.
Waiver of the right to receive discovery materials, perhaps including Brady material. Cf. United States v. Ruiz, 536 U.S. 622 (2002) (no constitutional right to receive impeachment material prior to entering guilty plea).

I’m not completely certain that all of these waivers would be proper. And some of them, even if proper, might be insufficient to achieve their intended purposes. For example, even if a defendant could validly waive his right to the preservation of biological evidence under G.S. 15A-268, the statute also requires that the Attorney General be notified before such evidence may be destroyed in advance of the time otherwise permitted under the statute.

But some of these waivers would almost certainly be proper and effective. For example, although I’m not aware of a North Carolina appellate court case expressly approving of appeal waivers, the authorities cited above strongly suggest that such waivers are proper. In fact, such waivers are almost de rigeur in many federal courts, and I have often wondered why they are vanishingly rare in state court. Perhaps it is a matter of incentives: most United States Attorneys’ Offices handle their own appeals and so have a strong desire to reduce the number of appeals filed, while in North Carolina, the Attorney General’s office represents the state in criminal appeals, giving trial prosecutors no personal stake in appeal waivers.

Category: Procedure, Uncategorized | Tags: plea agreements, plea bargaining, waiver

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Overstating Possible Punishment and the (In)voluntary Nature of the Plea — Part II

Overstating Possible Punishment and the (In)voluntary Nature of the Plea

Ineffective Assistance and Plea Bargaining

Restitution to Victims of Unconvicted Conduct

Package Deal Plea Bargains

Waivers in Plea Agreements

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Tag Archives: plea agreements

Overstating Possible Punishment and the (In)voluntary Nature of the Plea — Part II

Overstating Possible Punishment and the (In)voluntary Nature of the Plea

Ineffective Assistance and Plea Bargaining

Restitution to Victims of Unconvicted Conduct

Package Deal Plea Bargains

Waivers in Plea Agreements