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Most criminal cases are resolved by a defendant accepting a plea offer and signing a plea agreement. A defendant will first appear before a judge and plead guilty. This is called a change of plea hearing (COP). The court will go over the rights that the defendant is giving up and go over the plea agreement to make sure the defendant understands the written contract.
The court will then set a sentencing hearing in about 30 days. The court will take the defendant into custody if the plea agreement mandates a prison sentence. The court will then order a presentence report to be written by the probation department. I tell clients that judges know nothing about their case. All a judge will generally know is what charges the defendant faced and what charges he pled guilty to. This is it. The presentence report is an important aide for the judge in determining the fairness of the plea agreement and the sentence that should be imposed by the judge.
The probation department will assign a writer to compose a report that is submitted to the judge. The judge will read the report and make a sentencing decision based on this report. The presentence report is therefore an important document and a competent defense attorney will make sure that the report is accurate and that all mitigating factors are presented to the judge in the report.
There are lawyers who get lazy at this point and do not make a concerted effort to provide mitigating information and contest information that is incorrect in the presentence report. If the court has discretion in the sentencing, it is vital that the court have all the information that helps the court understand the defendant, his or her life and the circumstances of the offense.
The probation department will schedule a meeting to speak directly with the defendant. Unfortunately, most lawyers do not attend this hearing with their client. If your lawyer is a public defender, appointed by the court, I can almost guarantee you that your lawyer will not be there for your interview. However, you can still go prepared.
The first thing the probation officer will present to you is a medical waiver. You will be asked to sign a document allowing the probation department to obtain all your medical, psychological and personal records from any agency. DO NOT SIGN THIS DOCUMENT. You have every right to refuse and there is no legal repercussion if you refuse. Giving the probation your personal records does not help you in your sentencing and only gives additional power to the probation department. My clients NEVER sign this document.
The probation officer, almost always a female officer, will ask you a lot of questions that really have nothing to do with your offense or case. You will be asked if you have ever tried drugs and every drug will be mentioned. You will be asked if you drink alcohol and how much. You will be asked if you have committed other crimes that the probation department does not know about. You will be asked what kind of relationship your parents had and if there was domestic violence.
You may be asked a lot of personal questions about sex, your mental health, what jobs you have had, where you have lived and with whom and if it is ever okay to commit a crime. I specifically go over possible questions with my client and let my client know that this meeting is not a confessional. My client will honestly answer only the questions that I deem are relevant to his case. My client will not list all his or her mistakes in life. The answers are not helpful to a defendant's case anyway.
The probation officer will ask for a defendant's explanation of what happened. I never allow my client to give an answer. I will come prepared with a written statement signed by my client. The probation officer is never accurate with a defendant's statement. It is never complete and if you stand up for yourself, the officer will state that you do not accept responsibility and are blaming the victim. If you submit a signed statement, the court will have a complete and correct explanation provided by you.
Many defendants make statements that hurt them or that the probation officer will characterize as not accepting responsibility. Courts do not like defendants who pass the blame. Just make sure to have your lawyer read your statement first and make necessary edits. If you have a public defender who is not interested in helping you, ask family and friends for their input. The purpose of the statement is to show the court that you have learned a valuable lesson, that you accept responsibility for your actions and that you have changed for the positive.
Positive, supportive letters are important too. Bring with you character letters from family, friends, and your employer(s). The letters should not complain about how unfair the system has been to you. Instead, the letters should only point out what good characteristics you have and what good things you have done in your life.
Quality is more important that quantity. Have people who really know you write letters. Also, I do not like letters written by hand or letters written by your children. Keep the children out of your problems and make sure the letters are typed. Judges read a lot of reports and handwritten letters are just ignored.
If you have attended substance abuse counseling, parenting classes, domestic violence classes, psychotherapy, inpatient hospitalization or any class that is rehabilitative in nature, makes sure to bring proof of successful attendance. Your statement, letters of recommendation and proof of counseling all are attached to the presentence report and read by the judge.
An important part of your interview will be financial. The government wants to know how much money you have and how much you can pay in fines and restitution. You should discuss this aspect with you lawyer. I counsel my clients on financial issues. If you go to the interview alone, do not make the mistake of telling the probation officer that you can pay more than you really are able to. It is much better to pay low, monthly fines, fees and restitution. If the court believes that you have wealth, you will be ordered to pay a larger monthly fees and restitution.
The probation officer will include in the presentence report an explanation of your crime based on the police reports. Therefore, if you have information that is important to your side of the issue, make sure you point this out in your letter to the court. The police did not write their report to help you. Police reports are one-sided. Better yet, your lawyer should be filing a sentencing memorandum that points out all the legal, factual and societal factors that mitigate your offense. The lawyer's memorandum helps balance out the offense. You do not want the judge sentencing you based solely on the facts alleged by the cops.
The last part of the presentence report will have a discussion and evaluation of your offense by the probation officer. The officer will always attempt to get input from any victim in the case. The probation officer will then include any victim statement and recommendation regarding the sentence to impose. The probation officer will also make sentencing recommendations to the judge. The court can ignore the recommendations made by the probation department; however, judges are very busy, and the recommendations carry a great deal of weight with the court.
It is very important, therefore, to always be polite and cooperative with the probation department. Assert the rights that you have but be polite and come prepared for your interview. If there are incorrect facts or statements contained in the report, your lawyer has the right to object and request a correction. Your lawyer should provide you with a copy of the presentence report ahead of time and give you an opportunity to review it for accuracy.
Appearing before a judge who will decide your fate is incredibly frightening for clients. Prepare for your presentence interview with the probation officer; bring all your mitigation and supporting information with you to the interview. Write out a well thought out statement about your participation in the offense. Be polite but assert your rights at the interview. Talk to your lawyer ahead of time and ask your lawyer to be present for your interview. If you take all these steps, you will maximize your good points before the judge and you will be a little less frightened. Preparation is the key to success.
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Robert J. Campos, Criminal Law Specialist