Plea Bargaining and Sentencing Agreements
From MN Bench Book - Trial Procedures & Practices for Judges
A substantial majority of all criminal cases are resolved through pleas of guilty prior to trial. Most guilty pleas occur after a plea bargaining process. It is accepted wisdom that the criminal justice system could not function without plea bargaining. This is especially true in the prosecution of misdemeanors, gross misdemeanors. District courts in the metropolitan area are required to process tens of thousands of misdemeanor and gross misdemeanor charges every year. Less than one percent of all criminal cases actually proceed to trial. All other criminal cases are either resolved through some form of plea bargaining or they are dismissed.
Plea bargaining is formally recognized and authorized by the Rules of Criminal Procedure. M. R. Cr. P. 15.04.
Plea bargaining is the negotiation that takes place between the prosecutor and the defendant's attorney or the defendant. A proposed resolution of the criminal charge(s) and a recommended sentence are discussed. The prosecutor's perspective is that he or she desires a resolution of the criminal charges such that the defendant pleads guilty to the most serious charge and that there be no limitation on sentencing.
The defense attorney's perspective is that he or she desires either a dismissal of all charges or that his or her client be allowed to plead to the least serious charge or an amended or added reduced charge and that there be a joint recommendation for a minimal sentence.
The agreement (bargain) can be:
The prosecutor agrees to dismiss one or more non merging (Minn. Stat. § 609.035, infra) charges. If misdemeanor and or gross misdemeanor charges do not merge for sentencing purposes, the defendant is subject to multiples of the maximum misdemeanor penalty for each offense. By dismissal of non merging charges, the prosecutor is in effect limiting the maximum sentence to which the defendant is subject.
The prosecutor agrees to dismiss one or more merging charges.
The prosecutor requires pleas to non merging charges but agrees to recommend that the defendant only be sentenced to no more than one maximum misdemeanor penalty.
The prosecutor agrees to recommend a specific sentence and or probation less than the maximum sentence.
The prosecutor agrees to amend the charge to which the defendant is to plead guilty, so that the defendant's record does not look as bad as it would if the defendant had pled guilty to the original charge. (For example, assault in the fourth degree amended to disorderly conduct; driving under the influence of alcohol amended to careless driving.)
The prosecutor agrees to certify the misdemeanor charge as a petty misdemeanor thus making the offense a non-crime.
The prosecutor agrees that if the defendant enters a plea of guilty, the prosecutor will recommend to the sentencing judge that the judge can stay adjudication of guilt and place the defendant on the defendant be placed on probation. If the defendant successfully completes probation, the judge will reject the plea and order the charge dismissed.
The prosecutor agrees that if the defendant enters a plea of guilty, the prosecutor will recommend to the sentencing judge that no sentence be imposed and that the defendant be placed on probation and further that if the defendant successfully completes probation, he or she will be allowed to withdraw the plea of guilty and the charge will be dismissed. (This is called a 609 for dismissal in Hennepin County and a deferred sentence in Ramsey County.)
The prosecutor agrees that if the defendant enters a plea of guilty to charged gross misdemeanor, the prosecutor will recommend to the sentencing judge that no sentence be imposed and that the defendant be placed on probation. If the defendant successfully completes probation the defendant will be deemed to be guilty of only a misdemeanor. (This is called a 609 for discharge)
The prosecutor agrees to recommend that the pending charge or charges be continued for a period of time and then dismissed if the defendant complies with certain conditions.
|Types of Plea Bargains|
|Dismiss one or more non merging charges|
|Dismiss one or more merging charges|
|Pleas to non merging charges but prosecutor agrees to recommend that the defendant only|
be sentenced to no more than one maximum misdemeanor penalty
|Sentence and or probation less than the maximum sentence|
|Amend the charge with or without sentence recommendation|
|Certify the misdemeanor charge as a petty misdemeanor|
|Stay adjudication of guilt|
|Defendant pleads guilty but no sentence be imposed and defendant be placed on probation|
|Defendant pleads guilty, no sentence be imposed defendant allowed to withdraw the plea of guilty after a|
period of probation and charge dismissed. 609 for Dismissal, Deferred Sentence
|Charge continued for a period of time and then charge dismissed|
- 1 Factors that Affect the Outcome of a Plea Bargain Negotiation
- 2 Permission of Defendant for Attorney to Plea Bargain
- 3 Plea of Guilty on a Plea Agreement
- 4 Guilty Pleas in Misdemeanor Cases
- 5 Guilty Plea by Pro Se Defendant
- 6 Guilty Pleas in Gross Misdemeanor Cases
- 7 Factual Basis for a Plea of Guilty
- 8 Pleas of Guilty Wherein Defendant Does Not Admit Facts Supporting Crime
- 9 Norgaard Plea
- 10 Alford Plea
- 11 Written Plea Petitions
- 12 Decisions to be Made by Defendant
Factors that Affect the Outcome of a Plea Bargain Negotiation
Strength of state's case; Prior conviction record of defendant; Willingness of victims to prosecute; Mitigating factors explaining defendant's behavior; Personal characteristics of defendant (education, employment, family, etc.); Chemical dependency or other problems of defendant and the defendant's need and desire for treatment; Availability of state's witnesses; Degree of aggravation of the alleged offense (how serious was the assault, how serious the injuries?); The personalities and negotiating skills of the prosecutor and defense attorney; and Propriety of charge or charges (has there been over-charging here?).
Permission of Defendant for Attorney to Plea Bargain
Plea bargaining should only be undertaken with the express agreement of the defendant. If a proposed plea bargain is “agreed” to by the prosecutor and the defendant's attorney, it should be discussed with the defendant. Note; when a prosecutor and defense attorney reach an “agreement” on a proposed disposition of a pending criminal case both attorneys know that the “agreement” has not been accepted and is not binding until it has been presented to and agreed to by the defendant. The defendant retains the absolute right to withdraw his consent to plead guilty or proceed with any other disposition and go to trial.
Even if you as a defense attorney believe a plea bargain proposed by a prosecutor is not the best resolution that could be obtained, you have an ethical duty to present that proposal to your client and let your client decide, with your advice, whether or not to proceed pursuant to it. As a prosecutor, if a defense attorney “refuses” to present a plea bargain to his or her client you should make a record of the offer in open court with the defendant present.
The defendant must understand the proposed plea bargain and agree to it before it is presented to the judge. The sentence agreement presented to the judge as part of a plea bargain cannot and does not bind the judge. However, if a sentencing agreement is rejected by a judge after a defendant has pled guilty, the defendant has an absolute right, pursuant to M. R. Cr. P. 15 Subd. 3(1) to with his or her plea of guilty. Consequently because the rule, which allows the defendant to withdraw a plea of guilty, uses the term, “plea agreement” it is very important that a plea bargain be presented to a judge as a plea agreement, if the disposition involves a plea of guilty.
When a condition of defendant’s negotiated plea agreement goes unfulfilled, the plea is rendered involuntary and withdrawal is necessary. See State v. Garcia, 582 N.W.2d 879, 882 (Minn. 1998) (holding that unfulfilled promise by prosecutor renders plea involuntary); see also Carey v. State, 765 N.W.2d 396, 401 (Minn. App. 2009) (“[A] guilty plea becomes involuntary as a matter of law only if a promise made to the defendant prior to the plea later becomes unfulfilled.”).
If the offense involves a victim, the victim must be notified of the proposed plea bargain by the prosecutor, MSA 611A.02. The victim does not have a right to bar the court from accepting the plea bargain, however the victim does have a right to present objections to the plea bargain to the court.
Plea of Guilty on a Plea Agreement
Normally, the procedure in entering a plea of guilty pursuant to a plea bargain is as follows:
- The plea agreement is explained to the judge. It is very important that this be done on the record. It is absolutely essential that the sentencing aspects of a plea bargain be presented to the judge as a sentencing agreement. Both the prosecutor and defense attorney should indicate that the plea bargain presented to the judge is the plea bargain agreed to by the parties.
- The judge may give an immediate indication that the plea bargain is unacceptable to him or her.
- If the plea bargain and sentence recommendation is initially acceptable to the judge, he or she will examine the defendant on the record to determine if the plea bargain presented to the judge is the one explained to the defendant. If so (plea bargain presented to judge is the one explained to the defendant) and if the defendant desires to proceed and enter a guilty plea on the basis of the plea bargain and sentence agreement.
- The defendant then enters a plea of guilty to the charge or charges set forth in the plea bargain.
- If, after a pre-sentence investigation or the judge's own in court assessment of the defendant, the judge cannot accept the plea bargain and the sentence agreement, the defendant can withdraw the guilty plea and proceed to trial. This right to withdraw a plea has been incorporated into the Minnesota Rules of Criminal Procedure 15.04, subd. 3(1) which states: "If the court rejects the plea agreement, it shall so advise the parties in open court and then call upon the defendant to either affirm or withdraw his plea."
Guilty Pleas in Misdemeanor Cases
The decision to enter a guilty plea is one that is to be made only by the defendant with the advice and assistance of his or her attorney. The defendant should be advised that the decision must be made by him or her. The defendant's attorney can advise or recommend to the defendant which course of action should be taken, but the defendant must make the final decision.
Prior to entering a guilty plea, the defendant should be made aware of the elements of the offense and must understand that by pleading guilty, he or she is admitting all elements of the offense charged.
The defendant should also be advised of the collateral consequences of a guilty plea. These include possible probation revocation if the defendant is on probation for a similar offense, driver's license suspension or revocation, or increase or cancellation of insurance if he or she is pleading guilty to a traffic offense, and possible immigration consequences if the defendant is not a US citizen.
Once the court has been informed that the defendant desires to enter a "straight" guilty plea (no plea bargain) or a guilty plea pursuant to a plea bargain, either the judge, prosecutor, or defense attorney must examine the defendant on the record as the defendant's awareness and understanding of the following:
- Specifically whether he understands that he has been charged with the crime of (name the offense) committed on or about (month, day and year) in County, Minnesota (and that he is tendering a plea of guilty to the crime of [name of offense]).
- Whether he realizes that the maximum possible sentence is ninety (90) days imprisonment and one thousand ($1,000) dollar fine. (If the maximum sentence is less or greater, it should be so stated.)
- Whether he knows that he has a right to the assistance of counsel at every stage of the proceedings and that counsel will be appointed for him if he cannot afford counsel.
- Whether he waives these rights:
- (1)To trial by a jury of six (6) persons;
- (2)To confront witnesses against him;
- (3)To subpoena witnesses for him;
- (4)To remain silent at trial or at any other time; and
- (5)That he is presumed innocent and the state must prove its case beyond a reasonable doubt.
- 5. Whether he understands the nature of the offense charged;
- 6. Whether he believes that what he did constitutes the offense to which he is pleading guilty. M. R. Cr. P. 15.02.
Judges vary in the procedure used to examine defendants pursuant to M. R. Cr. P. 15.02 above. The rules allow for group warnings of defendant as to the consequences of entering a guilty plea, however, defendants must still be specifically examined individually on numbers 2, 3, and 4, of M. R. Cr. P. 15.02.
Guilty Plea by Pro Se Defendant
When reviewing challenges to guilty pleas entered without the benefit of counsel, appellate courts “have been strict.” State v. Motl, 337 N.W.2d 664, 666 (Minn. 1983). Because Lopez was unrepresented, we cannot presume that he was made aware of his rights or the possible consequences of entering a guilty plea before he appeared in court 10 or off the record at his court appearance. See State v. Lopez, 794 N.W.2d 379, Minn.App.,2011, See Shackelford v. State, 253 N.W.2d 149, 150 (Minn. 1977) (presuming counsel advised defendant of rights and consequences of plea when court neglected to question defendant about rights waived); Doughman, 340 N.W.2d at 353 (considering that defendant testified that he discussed legal rights with counsel in upholding validity of plea when court did not ask rule 15.01 questions verbatim). When a defendant enters a plea without an accompanying plea petition pursuant to rule 15.02 . See State v. Wiley, 420 N.W.2d 234, 237 (Minn. App. 1988) (upholding validity of plea when court did not ask all rule 15.01 questions after determining defendant was aware of constitutional rights because he testified that he went through rule 15 petition with counsel), review denied (Minn. Apr. 26, 1998); see also Minn. R. Crim. P. 15 app. C (providing written petition to enter guilty plea by pro se defendant).
Guilty Pleas in Gross Misdemeanor Cases
See Minn. R. Crim. P. 15.01 for the additional questions that must be asked of a defendant in pleading guilty to a gross misdemeanor.
Factual Basis for a Plea of Guilty
A defendant, as part of a plea of guilty, must admit facts that would support a finding that the defendant engaged in all of the behavior that constitute the elements of the crime the defendant is pleading guilty to, M. R. Cr. P. 15.02. The judge is ultimately responsible for determining the adequacy of the factual basis of a plea. The purpose of requiring an adequate factual basis for accepting a guilty plea is to ensure that a defendant does not plead guilty to a crime more serious than he could be convicted of at trial. State v. Ecker, 524 N.W.2d 712, 716 (Minn. 1994). However, prosecutors should monitor the wavier of rights and the factual basis of a plea. If something is missing the prosecutor should speak up and require that the missing waiver or facts be admitted. In the ordinary case, before accepting a plea of guilty, the district court must see to it that sufficient facts are elicited from the defendant to ensure that there is a factual basis for all elements of the offense. Minn. R. Crim. P. 15.01; State v. Hoaglund, 307 Minn. 322, 325, 240 N.W.2d 4, 5 (1976). “The court should not accept the plea unless the record supports the conclusion that the defendant actually committed an offense at least as serious as the crime to which he is pleading guilty.” State v. Trott, 338 N.W.2d 248, 251-52 (Minn. 1983).
Pleas of Guilty Wherein Defendant Does Not Admit Facts Supporting Crime
There are two exceptions to the requirement that the defendant admit facts to support the crime that he or she is pleading guilty to:
- Where the defendant, because of intoxication, cannot remember the incident; and
- Where the defendant maintains his or her innocence but desires to enter a guilty plea pursuant to a plea bargain in order to avoid a harsher sentence.
In those two instances, a defendant may enter a guilty plea and have it accepted if the judge finds there is an independent basis (police investigative reports or testimony of witnesses) to determine that the defendant engaged in all of the behavior that constitute the elements of the crime the defendant is pleading guilty to.
Norgaard plea: the defendant may plea guilty though they have no memory of the incident due to intoxication.
In the intoxication situation, unless the defendant were to assert that the degree of intoxication was such that he or she could not form the necessary intent, the court would still accept a guilty plea with independent proof of the crime.
A significant number of public defender clients have serious problems with alcoholism and as a result, often commit crimes while in alcoholic blackouts. This is a state where the individual appears to be functioning normally but later has no recollection of prior incidents in which they were involved. The intoxication affects their ability to recall rather than their ability to form the intent to commit a crime. When accused of a crime, they have a difficult time defending themselves against the charge because they have no recollection of the incident that allegedly involved the criminal behavior.
If a defendant is in this situation and desires to plead guilty based on the charging documents (arrest report, complaint, city attorney's file), the charging documents should be reviewed with the defendant and there should be a statement on the record that the defendant:
- Desires to enter a guilty plea;
- Has no recollection of the incident from which the charge or charges arose because of intoxication at the time; and
- That the defendant has reviewed the charging documents (arrest, investigatory reports, complaint) and has no reason to dispute their accuracy.
- That, based on the charging documents, the defendant believes that if he or she went to trial and the state’s witnesses testified consistent with the statements in the police reports and the jury believed those witnesses and did not believe the defendant, if he chose to testify, and any witnesses he called to testify, he would be found guilty. This is called a Norgaard Plea
See State ex rel Norgaard v. Tahash, 261 Minn. 106, 110 N.W.2d 867 (1961), which authorizes a guilty plea by a defendant who cannot recall the alleged crime because of intoxication.
Alford plea: the defendant maintains innocence though they plead guilty
The situation where the defendant wants to plead guilty to accept the benefit of a plea agreement but maintains that he or she did not commit the crime is somewhat more complex. A judge cannot accept a plea of guilty from a defendant who maintains that he or she did not commit the crime. However, a defendant can do so, if the proper procedure is followed and the proper record made. Key to a defendant being able to plead guilty, while maintaining his or her innocence, is the defendant’s express intent to plead guilty to obtain the benefit of a plea or sentencing agreement.
The judge will then proceed with the acceptance of the guilty plea, the examination of the defendant as outlined above in the Norgaard plea situation, and a review of the charging documents to establish an independent factual basis of the defendant's guilt. The defendant must state on the record that he is pleading guilty to obtain the benefit of a plea bargain and the defendant believes that based on the charging documents the defendant believes that if he or she went to trial and the states witnesses testified consistent with the statements in the police reports and the jury believed those witnesses and did not believe the defendant, if he chose to testify, and his witnesses he would be found guilty. This is called an Alford Plea.
See North Carolina v. Alford, 400 U.S. 25 (1970) and State v. Goulette, 258 N.W.2d 758 (Minn. 1977), which authorized a guilty plea by a defendant who maintains his or her innocence in order for the defendant to avoid a possible harsher sentence after a trial.
Written Plea Petitions
Written plea petitions are required by prosecutors in misdemeanor cases involving an offense that can be enhanced if the defendant has prior convictions for the same offense. These include, but are not limited to, DWI, Assault, Prostitution, No Insurance, and Indecent Conduct. Written plea petitions are required for all gross misdemeanors.
Decisions to be Made by Defendant
The following decisions are to be made solely by the defendant. He or she can seek and obtain the advice of their attorney, but it must be made clear to a defendant that they must make these decisions solely on their own.
- To plead guilty or not guilty
- To waive a jury trial and have case heard by a judge
- To testify or not testify