In-custody defendants may be brought to court soon after the agreement is reached for a special hearing in which the judge takes the plea. Otherwise, the taking of the plea (and sometimes sentencing) will occur at the next scheduled hearing. Depending on when the deal is struck, the next scheduled appearance may be the arraignment, preliminary hearing, or trial.
As a practical matter, many judges go along with plea bargains as long as the agreed-upon sentences are within the range of what they consider fair. Usually this means determining whether, given the seriousness of the crime and the defendant’s criminal record, the sentence seems appropriate in light of other sentences the judge has handed down.
There are some other variables that may come into play, however. Particular judges might (rightly or wrongly) take into their calculation whether they remember the defendant from a previous appearance in their courtroom and how they and members of the community feel (especially if the judge is up for reelection) about the crimes in question. Sometimes, even such whimsy as whether the judge woke up in a good mood or had a rough morning can also have an impact on decisions made that day.
Even if the deal seems fair, judges typically engage defendants in a courtroom “colloquy,” or verbal exchange, to make sure that defendants have committed the offenses to which they are pleading guilty. (But see Pleading Guilty While Saying You're Innocent.)
In federal courts, defendants who want to plead guilty or nolo contendere must testify under oath to facts establishing their guilt. Moreover, before accepting guilty pleas, judges have to be sure that defendants are aware of the rights they are giving up by pleading guilty. For a “knowing and intelligent” guilty plea to be made, defendants have to:
Defendants should also know that, if they are not U.S. citizens, they risk deportation when they are convicted of a crime. Defendants are competent to waive counsel and plead guilty as long as they are capable of understanding the proceedings (Godinez v. Moran, U.S. Sup. Ct. 1993).
In some courts, defendants who are pleading guilty are asked to fill in or sign a form waiving their rights.
Usually the judge asks the defendant a fairly long list of questions to determine whether the plea is knowing and intelligent. For their part, defendants normally follow their attorneys’ advice and avoid upsetting the plea bargaining apple cart by quietly answering “yes” to all the judge’s questions.
Assuming the defendants’ answers are satisfactory, judges typically accept the deal. In some cases, a judge may consult with the crime victim, ask a probation officer to prepare a presentence report, and listen to arguments from both the defense and prosecution before making sentencing decisions.
If a defendant entered into a plea without counsel and did not appear, from a later review of the record, to have made a knowing and intelligent plea, that defendant may have grounds to request that the conviction be stricken (removed) from the defendant’s record, or at least not be considered in any future proceedings. Striking prior convictions can be important because offenders tend to be sentenced more severely with each repeat offense. However, even if a defendant did not have counsel or waived counsel before pleading guilty, the conviction may later be used to make future sentences more severe, unless the defendant was incarcerated after the plea was entered (Nichols v. U.S., U.S. Sup. Ct. 1994).
This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.
]]>To evaluate a proposed plea bargain, the judge must know all the terms of the deal, including any future conditions or unusual aspects. For example, if Donnie Defendant is offered a lighter sentence in return for future testimony against a codefendant, the parties must make this condition clear to the judge when presenting the terms of the plea. Similarly, the parties would have to inform the judge if there is anything unusual in how the defendant will complete his sentence—for example, if the terms of the plea require him to perform 600 hours of community service but only on weekends.
Yes, the judge has a choice of whether to accept or reject a plea agreement. To make that decision, the judge evaluates whether the punishment is appropriate in light of the seriousness of the charges, the defendant’s character, and the defendant’s prior criminal record.
Other factors to consider include:
While plea procedure varies from judge to judge and jurisdiction to jurisdiction, judges must always decide whether to accept the plea terms before the defendant actually enters the plea.
When judges decide on a proposed plea bargain, they may be able to:
In some jurisdictions, if the prosecution and the defendant agree to a sentence and the judge accepts the negotiated plea, that judge must accept the entire agreement, including the agreed-upon sentence. Other states don't require the judge to accept the sentencing recommendation even when accepting a plea agreement. And some jurisdictions require that the accused be given the opportunity to withdraw the plea if the judge doesn’t follow the sentencing recommendation.
When judges refuse a proposed plea bargain, they must follow their jurisdiction’s procedure, which usually requires that they identify on the record the reasons for not accepting the deal.
Once the judge accepts the defendant’s guilty or no contest plea and enters a conviction, that judge can’t later overturn the plea agreement. However, when the parties agree upon a negotiated plea that requires that the defendant perform certain conditions, the court retains jurisdiction until the conditions are satisfied. If the defendant doesn’t satisfy the conditions, the judge can reject the plea and resentence the defendant. An example is a defendant who, in order to receive community service instead of jail time, agreed to but failed to complete the assigned service.
If you want to know whether a judge might reject an actual or potential plea bargain, or if you simply want to understand plea-bargain procedure, talk to an experienced criminal defense lawyer. Do the same if you want to know what your options are. A knowledgeable lawyer will be able to fully explain the rules and customs—which differ from place to place—in the court in question.
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