1. Negotiating the Offer

The negotiation between your attorney and the prosecutor, is just like any other type of negotiation.  You need to know how much leverage you have (in poker terms, do you have a full house, or just a pair of twos?).  Then, given your leverage, you negotiate a deal. Plea Agreement

Because the prosecutor has so much discretion as the person making the offer, and because he or she has the full authority of the police force on his or her side, you might feel that you should take whatever the prosecutor offers.  But not so fast. 

If you have a strong suppression motion because the cops clearly violated your constitutional rights, or you know you could win at trial because the informant they are using has no credibility based on his or her criminal record, then you have some place from which to bargain.

So, when in the plea negotiation process, keep three things in mind:

  • Let your attorney handle the negotiations.  Remember, you have the final say as to whether to accept or reject a plea offer.  Yet, your attorney will have more experience handling plea negotiations, and will have more experience dealing with the office prosecuting your case and even dealing with the specific prosecutor on your case.
  • Consider cooperating with the cops to reduce or eliminate your sentence.  If you have some valuable information about other criminal activity, then you may be able to use that information to negotiate a better plea, or get your case dismissed altogether.  The question of giving the police information, however, is a difficult and personal one.  In that regard, do what your conscience tells you.
  • Take your prior criminal record into account.  If you have a substantial criminal record, there may be mandatory minimums for prison sentences that are required by law.  Thus, even if you are willing to take a plea, the prosecution may be unable to make a very attractive plea offer because of those mandatory sentencing laws.      
  1. Waiving Your Right to Appeal in a Plea Agreement

If you decide to accept a plea agreement, then it is possible that part of the agreement will include what is called a “waiver of your right to appeal the sentence.”  Generally speaking, that means that by accepting the plea agreement you also agree to forego filing an appeal to challenge the sentence you receive as a result of the plea.  In other words, you can’t change your sentence once you accept the plea. 

That sounds pretty absolute, and it is a pretty big ask for the prosecutor to make you sign those appeal rights away.  But, when you get into the details, the waiver cannot stop you from filing an appeal with regard to certain constitutional rights.  Specifically, the appeal waiver does not stop you from filing an appeal arguing that:

  • You were denied effective assistance of counsel when you received your sentence.
  • You received a certain sentence based on your race.
  • Your sentence exceeded the statutory maximum.

In sum, the judge will remind you when you accept your plea agreement that you are agreeing to also waive certain rights to appeal your sentence.  When that happens, remember that there are some constitutional appeals that you still can raise, despite the fact that you are agreeing to the sentencing appeal waiver.

  1. What to Expect When Accepting a Plea Agreement in Court – The Plea Colloquy

The “plea colloquy” as it is often called, is the actual plea hearing when you formally enter your plea of guilty before the judge.  This hearing is very important because the judge must have a discussion with you (a “colloquy”), on the record, to make sure that you understand what rights you are giving up by accepting the plea agreement. 

At the plea hearing, after the prosecutor has outlined the terms of the plea agreement, and you or your attorney acknowledge that you wish to plead guilty based on those terms, the judge will turn to you directly and go into a scripted plea colloquy with you that covers the following information:

  • Whether you understand the nature of the proceedings.  The judge first needs to ask a series of questions to make sure that you are of sound mind, that you are not under the influence of anything that might impair your judgment, and that you are knowingly and voluntarily agreeing to plead guilty to criminal charges.
  • Whether the plea is of your own free will.  The judge will ask whether anyone, including the prosecutor, the cops, or your own attorney, forced or coerced you into pleading guilty to the charges. 
  • The nature of the charge.  The judge will go through with you the criminal charge to which you are pleading guilty to make sure that you understand the elements of the crime.
  • The potential penalties that might result from your plea.  The judge will explain to you the maximum penalty for the crime you are pleading to, and then what the potential sentence will likely be based on the plea agreement.  The judge should at this time also explain to you whether any mandatory minimum sentence applies to your sentence.
  • Your right not to plead guilty, and other rights you are giving up by pleading guilty.  The judge will also list all of the legal rights that you are giving up by agreeing to plead guilty.  Those rights include the right to a jury trial, the right to cross-examine witnesses against you, and the right to appeal any trial errors. 

Throughout this plea colloquy, the judge will ask you if you understand what he or she is telling you.  You need to vocalize your “yes” or “no” answers, a head nod will not do.  That is to make sure that there is a record that you heard and understood what the judge is telling you. 

What is important to remember is that until the moment you actually plead guilty in front of the judge, you can still back out of the plea deal and go to trial.  That is why the judge goes through all of the scripted questions.  The judge wants to make sure that you are truly willing to accept the plea offer. 

Finally, after the judge has gone through the colloquy with you, either your attorney, the prosecutor, or the judge will ask you questions about the criminal incident so you can give a factual basis for your plea.  This is when, with the help of questioning, you explain your participation in the criminal act.  The judge will take note of your demeanor while you are giving the factual basis (and during the earlier plea colloquy) and determine whether you are knowingly, voluntarily, and of your own free will, pleading guilty. 

If the judge is satisfied that you are pleading guilty of your own free will, understanding the trial rights you are giving up, then the judge will have you enter your guilty plea and then either set a date for sentencing or proceed to sentencing at the time of the plea. 

Important:  The judge has the final say in sentencing.  Even though you agree to a certain sentence as part of your plea, the judge has the authority to sentence you to something different.  Just remember that if the judge rejects your negotiated plea deal (and the judge would likely do so before you have your sentencing hearing), then you can withdraw your plea if you have not yet been sentenced.      

  1. Can You Change Your Mind and Take Back Your Plea?

When it comes to withdrawing your guilty plea, it can be done, but it may not be that easy to do.  As noted above, if the judge rejects the plea deal, then it is relatively easy to withdraw your plea, as long as you have not been sentenced.  But, what about other circumstances?   

Generally speaking, you do not have an absolute right to withdraw a guilty plea once you have entered the plea at the plea hearing.  Also, if you want to withdraw a guilty plea, you bear the burden of proving why withdrawal should be permitted. 

Some of the things a court will consider if you seek withdrawal of your plea include:

  • Whether you have a valid claim of innocence;
  • Whether your reasons for withdrawal are compelling and persuasive;
  • Whether the plea was the result of a plea bargain; and
  • Whether withdrawal will lead to an unfair disadvantage to the prosecution, or an unfair advantage to you.

Overall, once you have pleaded guilty at the plea hearing, withdrawing your plea can be very difficult.  You would need to convince the court that you should be permitted to withdraw based on the four factors above. 

That is all the more reason why you need to think long and hard before accepting a plea offer from the prosecution.  Once you have decided to plead guilty, it is not easy to take it back.  

Are you or someone you know facing criminal charges? 

If you are facing criminal charges, you need to speak with an experienced criminal defense attorney as soon as possible. The Law Offices of Steven R. Adams is recognized by Super Lawyers, Best Lawyers, The Best Lawyers in America, National Trial Lawyers Top 100, and is one of U.S. News' Best Law Firms.  Please contact us online or call our Cincinnati office directly at 513-929-9333 to schedule your free consultation. 

Tad Brittingham
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Criminal defense attorney Tad Brittingham is dedicated to serving his clients throughout the Cincinnati area