PLEA NEGOTIATION AND AGREEMENTS
From MN Bench Book - Trial Procedures & Practices for Judges
Many thanks to Judges Mark Wernick and Alan Pendleton for their contributions to this section on plea negotiations. Some of the material originates from an address given at the Criminal Justice Institute on August 23, 2010.
Current Plea Negotiation System
Our system is at its core a guilty plea system. We operate with the assumption that a relatively small percentage of cases will go to trial. In order to have a plea bargaining system generate a high percentage of guilty pleas, the system must offer a defendant two things:
- First, the system has to offer the defendant some level of certainty as to what will happen if the defendant pleads guilty. That is what most defendants really care about; what’s going to happen to me if I plead guilty. A defendant has little motivation to plead guilty if the defendant doesn’t have some certainty about what the sentence will be.
- Second, in order for a plea bargaining system to work, the sentence offered has to be better than the sentence the defendant anticipates he would get if he were found guilty at trial.
Our system rewards defendants who plead guilty by treating them more leniently than if they had gone to trial. Now, this is certainly not true in every case. But generally sentences after guilty pleas are more lenient. The federal system has codified this principle in its sentencing guidelines. If a defendant admits guilt and pleads guilty, the defendant is entitled to a 2 level downward adjustment in the offense severity level. That’s called the acceptance of responsibility adjustment. If a defendant admits guilt and pleads guilty early in the case, the defendant is entitled to a 3 level downward adjustment. That’s called early acceptance of responsibility. The federal appellate courts have uniformly held that rewarding acceptance of responsibility is not an unfair burden on a defendant’s right to a jury trial.
The basic arguments against trial court involvement in plea negotiations are it is unseemly and it is unfair. It is unseemly; the argument goes, because trial courts are supposed to be neutral arbiters of the parties’ disputes. If judges get involved with plea negotiations, judges are going to end up taking sides, either pushing the defendant for a guilty plea or pushing the prosecutor to make concessions; and all before the case is even tried. It’s unfair, especially to the defendant, because, the argument goes, judges should not use their sentencing power to induce a defendant to plead guilty. There is an unfair balance of power in that dynamic.
The Michigan and Florida supreme courts specifically allow trial judges to indicate in advance of a guilty plea what sentence will be imposed upon a straight plea of guilty, so long as there are procedural safeguards against judges using their sentencing power to unfairly induce guilty pleas. These safeguards include:
- First, the defendant has to ask the question; the judge cannot initiate the conversation. This safeguard reduces the chance of a judge unfairly using the sentencing power to induce a guilty plea. When the defendant initiates the question, the defendant cannot fairly complain that the judge is unduly pressuring him to plead guilty by merely answering the question.
- Second, the judge can answer the question but the judge cannot comment on what sentence would be imposed if found guilty after a trial. This means that the judge can be a source of information for the defendant but the judge cannot try to persuade the defendant to plead guilty. When a prosecutor and defense lawyer engage in bargaining, the prosecutor is trying to persuade the defendant to plead guilty, arguing it may be worse for the defendant after a trial. This is the part of plea bargaining that allows for a very bad defendant to plead guilty for a very light sentence because the prosecutor has proof problems; or this is the part of plea bargaining that could allow for a very good defendant to agree to a severe, but certain sentence because the prosecutor does not have proof problems. Plea bargaining can be unseemly, but we tolerate that if it’s done by the lawyers. The safeguard that prohibits the trial judge from commenting on what sentence might be imposed after a trial is designed to keep the judge out of the unseemly side of plea bargaining. The judge is simply answering the question asked by the defense lawyer. The judge is not arguing for a guilty plea. Now, you may ask, even if the judge can’t say that the sentence would be worse after a trial, won’t the defendant think that anyway? Of course, but the defendant will think that regardless of whether I answer the question. My answer to the question will tend to reduce the pressure on the defendant because I am giving the defendant more information to work with in deciding whether to plead guilty. And if I do this properly on the record, the defendant will perceive my information as information coming from a neutral arbiter, not from someone who is an advocate for a guilty plea.
- Third, the judge’s conversation with the defendant must be on the record. My practice is to have the initial conversations in chambers, and then go in court to make a record of the conversation. If the prosecutor were to say in chambers that he or she wants the entire conversation on the record, that’s fine with me. It’s yet to happen, but I’ll go on the record any time either party wants to, regardless of the subject of the conversation.
- Fourth, the judge must tell the defendant that if information emerges before sentencing that changes the judge’s sentencing assessment, then the judge will allow the defendant to withdraw the guilty plea. This safeguard recognizes that because the defendant relied on the judge’s sentencing assessment before pleading guilty, it is fair and just to allow a defendant to withdraw the plea if the assessment changes. Some judges believe that to avoid this dilemma, the judge should only say something to the effect, “I am inclined to sentence you to X,” but I’m not promising I’ll do so and so if I don’t sentence you to X, you cannot withdraw your plea. Many judges I know do that, but I don’t think that is a good idea. If the judge really doesn’t know what the sentence will be based on the assumed facts, I don’t think it’s fair to the defendant or to the defense lawyer for a judge to say what the judge is inclined to do. If the judge doesn’t do what the judge said he’s inclined to do, both the defendant and the defense lawyer are going to feel double-crossed. If the judge does know the answer to the question, and if judge wants the defendant to know what the answer is, then the judge should just answer the question. The judge should not be cryptic about it.
Judicial Role in Plea Negotiations
Judges become involved in plea negotiations when attorneys ask or look for guidance on what type of sentence you are likely to impose. There is some precedent to indicate you cannot indicate in any way your pre-imposition sentencing inclinations. Despite these decisions, it appears that Minnesota law still allows a trial court judge, if asked, to tell a criminal defendant what sentence would be imposed upon a straight plea of guilty.
Then how best to respond without impermissibly injecting yourself into plea negotiations?
You can explain your general sentencing philosophy; your past practices; what direction you are leaning toward and even set out parameters for possible sentences you may impose, however:
YOU MUST NEVER PROMISE OR COMMIT TO A PARTICULAR SENTENCE!
A few basic guidelines:
- 1) The court’s role in plea negotiations, is not to “usurp the responsibility of counsel or become excessively involved in plea negotiations”.
- 2) The court may not offer or promise the defendant an anticipated sentence that is not part of an existing agreement between the defendant and the prosecutor.
- 3) Anytime a district court improperly injects itself into plea negotiations the guilty plea is per se invalid.
- 4) The district court’s proper role is one of “discreet inquiry into the propriety of the settlement submitted for judicial acceptance."
In State v. Anyanwu, the court held that a defendant’s guilty plea was invalid because the trial court impermissibly interjected itself into plea negotiations. The trial court’s error was its “promise” to the defendant that upon a straight plea of guilty to all counts charged in a complaint it would impose a 210 month prison sentence. The prosecutor objected to any sentence less than the 240 month statutory maximum for attempted first degree murder. The defendant entered the straight pleas and the trial court imposed a 210 month sentence, as it said it would. Apparently not satisfied with the sentence imposed, the defendant appealed, arguing that the trial court erred by impermissibly interjecting itself in the plea negotiating process. The state agreed that the trial court had so erred, but argued that the defendant waived that error by pleading guilty. The court of appeals adopted the parties’ position and held that it was error for the trial court to promise a particular sentence upon a plea of guilty. The court further held that the trial court’s error could not be waived by a guilty plea.
The Anyanwu panel relied on three Minnesota appellate court decisions in support of its conclusion that the trial court had impermissibly interjected itself into the plea negotiating process by telling the defendant what sentence would be imposed upon a straight plea of guilty:
State v. Johnson , was the first case in which the Minnesota Supreme Court addressed the propriety of negotiated guilty pleas. In Johnson, the defendant was charged with first degree murder. Pursuant to an agreement with the state, the defendant pleaded guilty to a reduced charge of third degree murder. On appeal, the defendant argued that his guilty plea was not knowing and intelligent, in part because it was based on “improvident ‘plea bargaining.’” The Court held that the prosecutor’s agreement to reduce the charge in return for the defendant’s agreement to plead guilty did not render the guilty plea invalid.
In reaching its holding in Johnson, the Court discussed the policies underlying plea bargaining. The Court’s discussion was based on the policies described in two reports: 1) the President’s Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society (1967), and 2) the original ABA Project on Minimum Standards for Criminal Justice (1968). As was pointed out by the Court, these reports direct trial court judges to refrain from participating in plea discussions. However, in Johnson, the trial court’s role in the plea discussions was never an issue. The Johnson Court’s reference to the role of a trial court in plea discussions was dictum.
Since 1968, when Johnson was decided, many legal observers have changed their views about the judicial role in plea bargaining. For example, in 1968, the ABA Standards categorically provided that “the trial judge should not participate in plea discussions.”
Until relatively recently, Minnesota courts have been adamant in their exclusion of judges from plea negotiations. The following guidance predominated:
- The role of the court is limited to acceptance or rejection of a plea agreement..
- It is reversible error for a judge to participate directly in plea agreement negotiations.
- "The judge’s role is not that of one of the parties to the negotiation, but that of an independent examiner to verify that the defendant’s plea is the result of an intelligent and knowing choice and not based on misapprehension or the product of coercion....Trial judges should be very cautious not to impermissibly participate in plea negotiations."
- Do not urge a plea agreement after the jury begins deliberation.
Times have changed since that early stance. While still discouraging a trial court’s participation in plea discussions, the ABA Standards now provide that a trial judge “may be presented with a proposed plea agreement negotiated by the parties…and, if relevant, indicate what sentence would be imposed.”
The other decisions relied on by the Anyanwu court do not support the apparent breadth of the Anyanwu holding. In State v. Vahabi,, the trial court judge told the defendant that if he pleaded guilty to the felony theft charge, sentencing would be continued for one year, at which time, if restitution was paid, the offense would be sentenced as a petit misdemeanor. In State v. Moe, that same trial court judge told the defendant that if he pleaded guilty, a downward departure would be imposed if the defendant cooperated with the police in an unrelated criminal investigation. In both cases, the trial court acted over the prosecutor’s objection; the state appealed; and, the court of appeals reversed.
A critical component of the Vahabi and Moe reversals was that the trial court usurped the authority of the prosecutor. In Vahabi, the trial court continued a felony prosecution for a year for a petit misdemeanor disposition even though the prosecutor was seeking speedy proceedings to obtain a felony conviction. In Moe, the trial court offered a reward to the defendant for cooperating with the police in an unrelated criminal investigation even though the prosecutor was seeking no such cooperation agreement with the defendant. This usurpation of the prosecutor’s authority is a far cry from a trial court simply answering a defense lawyer’s question, “What sentence would you impose if my client enters a straight plea of guilty as charged?” Answering that question is a legitimate exercise of judicial authority.
The supreme courts in Florida and Michigan have specifically authorized trial courts to indicate what sentence would be imposed upon a straight plea of guilty. In these states, a trial court’s participation in this kind of discussion is governed by the following principles:
- At the request of a party (not on the trial court’s own initiative), a trial court may give a preliminary indication of the sentence that would be imposed upon a plea of guilty. The trial court’s statement must be put on the record.
- The trial court must neither state nor imply that some other sentence would be imposed based on a defendant’s procedural choices, such as making a suppression motion or requesting a trial.
- The trial court’s preliminary indication of the sentence to be imposed does not bind the court’s sentencing discretion if additional facts emerge before sentencing which changes the court’s evaluation of the case. In that event, a defendant may withdraw a guilty plea which was based on the trial court’s earlier evaluation.
- If a guilty plea is either not entered or entered and later withdrawn, the judge who gave a preliminary indication of the sentence is not disqualified from the case for that reason. If a greater sentence is later imposed, the trial court should explain the reasons for the greater sentence.
Post Anyanwu Unpublished Decisions
For three years following the Anyanwu decision, in a series of unpublished decisions, the Minnesota court of appeals consistently reversed convictions based on straight pleas of guilty entered pursuant to the trial court’s “promise” to impose a particular sentence.
In State v. Hampton, supra, the court appeared to open the door for trial courts to engage in sentencing discussions before a guilty plea is entered. Hampton was an ineligible person in possession of a firearm case in which the trial court agreed to stay the presumptive 60 month prison sentence if the defendant were to enter an Alford plea. The defendant entered an Alford plea; and, over the state’s objection, the trial court stayed the prison sentence. The state appealed. Believing that it was bound by Anyanwu, the court reversed the conviction. But, in a footnote, the court (Judge Klaphake) indicated that while the district court's role in plea negotiations is set forth in absolute terms in current opinions issued by this court, the roles of the various parties during the interplay of plea negotiations may actually be somewhat more broad and flexible than is suggested by current case law. He went on to say that it was clear that the district court could have, on its own motion, sentenced respondent "without regard to the mandatory minimum sentence[ ]" required on the felon in possession of a weapon offense. It appears the district court may have intended to exercise this authority in this case. However, care must be taken in how that authority is exercised to avoid the Anyanwu concerns.
In State v. Merritt, the court finally gave trial courts guidance about how to “avoid the Anyanwu concerns.” This guidance is remarkably similar to the principles governing trial courts in Florida and Michigan.
In Merritt, the defendant was charged in three separate complaints with first and second degree criminal sexual conduct. Just prior to trial, the defense attorney asked the trial court what sentence would be imposed if the defendant pleaded guilty as charged in all three cases. The trial court responded, on the record, that he did not anticipate imposing a sentence longer than 288 months. Recognizing that the state was going to be asking for a longer sentence, the trial court told the defendant, on the record, that if it believed a sentence longer than 288 months should be imposed, it would allow the defendant to withdraw the guilty pleas “in the interests of justice.” The prosecutor did not object to the trial court’s comments. After a sentencing hearing, the trial court told the defendant that it was going to impose a 345 month sentence. The defendant then moved to withdraw his guilty pleas, and the trial court granted the motion. Later, before a different judge, the defendant decided to plead guilty again and accept a 345 month sentence. Like the defendant in Anyanwu, the defendant in Merritt had a change of heart and appealed his convictions, arguing that the first trial court had impermissibly interjected itself in plea negotiations. In an opinion written by Judge Hudson, who authored Anyanwu, the court of appeals affirmed the conviction and sentence.
The Merritt court characterized Anyanwu as a case in which the trial court “promised a specific outcome.” But in Merritt, according to the court, “there was no promise of a specific sentence; the [trial] court simply answered defense counsel’s question regarding the [trial] court’s intended sentence.” The trial court’s promise to allow the defendant to withdraw his guilty plea if a different sentence was to be imposed did not amount to a promise to impose a particular sentence.
The distinction between a promise to impose a particular sentence (prohibited in Anyanwu) and a promise to allow a defendant to withdraw the guilty plea if the “anticipated” sentence is not imposed (allowed in Merritt) is not sufficient to guide trial courts in this area. Many times there will be no presentence investigation, so that the “anticipated” sentence will no doubt be the actual sentence. In such cases, the “anticipated” sentence is in effect a “promised” sentence. The real issue should be whether, by announcing an anticipated sentence prior to a guilty plea, the judge is using the court’s sentencing power to coerce a guilty plea or simply answering a legitimate sentencing question asked by the defense.
An unfortunate consequence of the Anyanwu decision appears to be that a judge who wishes to answer a pre-plea sentencing question will to do so, but only by hinting at the answer off the record. To discourage this kind of communication, rules may be necessary to guide trial courts on how to answer a legitimate pre-plea sentencing question on the record in a way which does not unfairly induce a defendant to waive procedural rights.
Interpreting and Honoring Plea Agreements
Courts aren’t required to honor plea bargains where defendants knowingly breach their terms before sentencing.
Pleas as deals versus pleas as recommendations.
- Unqualified promises must be honored.
- Unwarranted hopes need not be honored.
- The lawyer's interpretation is immaterial.
Plea agreements read literally.
Defendant may not plead guilty to lesser offense under Rule 15.07 unless State would lose motion to dismiss at the close of the State’s case-in-chief.
We hold that in order to successfully oppose a defendant’s motion to plead guilty to a lesser-included offense or an offense of a lesser degree, the prosecutor must demonstrate to the trial court that there is a reasonable likelihood the state can withstand a motion to dismiss the charge at the close of the state’s case-in-chief.
Withdrawing Plea Agreements
There is no absolute right to withdraw a plea. Pleas should only be withdrawn in “exceptional” circumstances.
Before sentencing a plea should be withdrawn if it is “fair and just” to do so.
A mutual “misunderstanding” of a criminal history score is a “fair and just” reason to withdraw a plea.
After sentencing a plea may only be withdrawn if it would be a “manifest injustice” to allow the plea to stand.
- See State v. Anyanwu, 681 N.W.2d 411 (Minn. Ct. App. 2004); Melde v. State, 778 N.W.2d 376 (Minn. Ct. App. 2010).
- State v. Melde, A09-1050 (Minn.Ct.App. Feb 22, 2010) (Reversed and remanded because the court promised defendant a prison sentence at the low end of the sentencing guidelines range.)
- 279 Minn. 209, 156 N.W.2d 218 (Minn. 1968)
- 529 N.W.2d 359 (Minn. Ct. App. 1995)
- 479 N.W.2d 427 (Minn. Ct. App. 1992), review denied (Minn. Feb. 10, 1992)
- 279 Minn. 209, 156 N.W.2d 218 (Minn. 1968)
- ABA Standards for Criminal Justice Relating to Pleas of Guilty, § 3.3(a) (Approved Draft, 1968).
- State v. Nelson, 257 N.W.2d 356 (Minn. 1977); State v. Johnson, 156 N.W.2d 218 (Minn. 1968)
- State v. Moe, 479 N.W.2d 427 (Minn. Ct. App. 1992).
- Id. Compare, State v. Tuttle, 504 N.W.2d 252 (Minn. Ct. App. 1993).
- Barnes v. State, 489 N.W.2d 273 (Minn. Ct. App. 1992) (plea negotiations conducted at the urging of the judge just before the jury renders its verdict deemed involuntary).
- ABA Standards for Criminal Justice: Pleas of Guilty, Standard 14-3.3(d) (3d Ed. 1999) (Emphasis added). See also, Turner, Judicial Participation in Plea Negotiations: A Comparative View, 54 American Journal of Comparative Law (Spring 2006) (advocating for a greater role for judges in settlement discussions); Alschuler, The Trial Judge’s Role in Plea Bargaining, Part I, 76 Colum. L. Rev. 1059 (1976) (same).
- 529 N.W.2d 359 (Minn. Ct. App. 1995).
- 479 N.W.2d 427 (Minn. Ct. App. 1992), review denied (Minn. Feb. 10, 1992)
- See State v. Warner, 762 So.2d 507 (Fla. 2000); People v. Cobbs, 443 Mich. 276, 505 N.W.2d 208 (1993).
- See Wilson v. State, 845 So.2d 142, 156-57 (Fla. 2003).
- See State v Jacobson, 2007 WL 1816285 (Minn. Ct. App.); State v. Hampton, 2007 WL 332604 (Minn. Ct. App.); State v. Schwich, 2006 WL 3775140 (Minn. Ct. App.); State v. Garcia, 2006 WL 3593231 (Minn. Ct. App.); State v. Goodwin, 2004 WL 2988046 (Minn. Ct. App.).
- See Minn.Stat. § 609.11, subd. 8 2004).
- 2007 WL 1120534 (Minn. Ct. App.) (unpublished), review denied (Minn. June 7, 2007).
- Merritt, 2007 WL 1120534 at *4.
- See e.g., State v. Hannibal, 786 N.W.2d 314, 318 (Minn. Ct. App. 2010).
- State v. Rud, 372 N.W.2d 434 (Minn. Ct. App. 1984).
- Kochevar v. State, 281 N.W.2d 680 (Minn. 1979).
- Schwerm v. State, 181 N.W.2d 867 (Minn. 1970).
- Lallier v. State, 403 N.W.2d 880 (Minn. Ct. App. 1987).
- State v. Spaeth, 552 N.W.2d 187 (Minn. 1996) (agreement not to prosecute doesn’t mean we will not use the case as a Spreigl 10 years from now).
- State v. Carriere, 290 N.W.2d 618 (Minn. 1980).
- State v. Knight, 192 N.W.2d 829 (Minn. 1971).
- See Minn. R. Crim. P. 15.05; Kim v. State, 434 N.W.2d 236 (Minn. 1988).
- State v. Benson, 330 N.W.2d 879 (Minn. 1983).
- State v. Williams, 373 N.W.2d 851 (Minn. App. 1985).