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Jan. 10, 2015
What can be part of a plea bargain?
LENNY'S LEGAL ANALYSIS REGARDING SENTENCING STIPULATIONS
Leonard Frieling 2015
What's really going on is that ONLY THE JUDGE can reject or accept a plea bargain. i The plea bargain with the dda is not the end of the story. It is only what will be presented to the court. The judge can accept is or reject it. There is no reason the Judge has to say why an offer is being rejected. If they want a record or want to spank the DDA, Def Atty, or Defendant they can.
There is no need for anything to be said by the court beyond "I'm rejecting that plea bargain, do you want to withdraw your plea? The court has NO discretion to keep the defendant from withdrawing the plea which was part of a rejected deal.
If they are rejecting because they think the offered charge is too high or to low, or if they think what is pitched as a "stipulated sentence," or "stipulated probation" is inappropriate, the deal is simply rejected by the judge. The DDA can deal for "I'll make a recommendation for probation, and then, sota voce, and this judge usually goes with my recommendation." Also DDA can say "won't object to PSI recommendation." "I'll ask for 45 days." "I'll have no objection to what you say" "I'll leave it to the court" "I'll affirmatively join in your request/recommendation." Open sentencing also gives us a rare chance to do more courtroom lawyering. Same for the judge. Only the DDA may not like it as much. The sentencing is not "fun" but is IS lawyering.
Recently, I've had "stipulated sentences," "recommended sentences," "I'll join in your sentencing request, or will have 'no objection.'" Some jurisdictions have had judges who said "I will not take sentence stips." I have had a judge say "add 10 days jail and I'd approve the deal," at sidebar.
SO, with each piece of and the total plea bargain, we reach an agreement with the prosecutor only. That agreement is then presented to the court to accept or reject. If accepted, we move ahead. If the judge rejects the deal, then, at the sole choice of the defendant, the defendant's guilty plea may be withdrawn by the defedndate. The case proceeds accordingly. What's ironic is that if the court rejects a plea deal, it is generally because WE did too well with the DDA, so the judge says "dream on counsel.
WAR STORY All TRUE
Leonard Frieling 2015
Events of some time before 1980 I think
As we know, these things only happen on Fridays.
The judge rejected our proposed plea bargain. She then immediately took my client into custody, directly from the courtroom, do not pass go, do not collect $200. This was based only guilty plea and upon the rejected deal. I explained immediately on the record that that we were withdrawing the guilty plea, and that the Court could simply NOT take the client into custody based upon the court rejecting the deal. She could either take the deal, or permit him to withdraw it.
She would not give an inch. Client was cuffed and escorted to the jail, in the CJC basement at that time. I went to my office, got copies of what I recall as being the appropriate criminal procedure rule. I gave that to the trial court judge, hand-to-hand. It laid out word for word what I was telling her. She did not budge. Client was in jail.
I walked upstairs, knocked, and sat downii with Boulder's then the Chief of the Boulder Courts, William. Neighbors. "Judge, here's what happened." “Did you explain the rule to her?” "I explained the rule to the her." "Oh Christ." "Did you show her the rule?" "Yes your honor. First personally, then personally delivering a copy of the rule directly to her.” " "Oh Christ!!” "And you withdrew the plea?" "Yes Judge." "And she put him in jail immediately?" "Yes Judge.” “Oh Christ!!!”
"Mr. Frieling, wait a moment. " The Judge picked up his phone, called the jail directly on their hot line, and said "Hi Hank," "This is Bill Neighbors." "You have a guest down there named Mr. Client." "Would you please release him immediately?" … "Thanks."
"Anything else Mr. Frieling?" "Yes. Judge, which of my positions was used to release Mr. Defendant?" "Mr. Frieling, that's your problem. I got him out of jail."
"Thank you Your Honor." “Have a great weekend.”
perhaps 1979? [Close to literally transcribed].
i Crim. P. Rule 11states:
(f) Plea Discussions and Plea Agreements.
(1) Where it appears that the effective administration of criminal justice will thereby be served, the district attorney may engage in plea discussions for the purpose of reaching a plea agreement. He should engage in plea discussions or reach plea agreements with the defendant only through or in the presence of defense counsel except where the defendant is not eligible for or refuses appointment of counsel and has not retained counsel.
(5) Notwithstanding the reaching of a plea agreement between the district attorney and defense counsel or defendant, the judge in every case should exercise an independent judgment in deciding whether to grant charge and sentence concessions. (emphasis added). [That covers the keys to the entire deal; charges and sentencing].
See also: Section 16-7-302(3) C.R.S. (Notwithstanding the reaching of a plea agreement between the district attorney and defense counsel or defendant, the judge in every case should exercise an independent judgment in deciding whether to grant charge and sentence concessions). Thanks Danny Luneau, Esq.
ii *I hope I let the city attorney know what I was doing, and don't remember.
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