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Chances are very high that you will end up accepting a plea agreement if you are ever charged with a criminal offense. In the criminal justice system, about 90% of all cases are settled by a plea agreement. This means that in America most people do not settle their dispute in a trial. Most Americans will take a plea. So what is a plea and what does a typical plea agreement look like? Let me explain what you should expect.
If you are arrested, you will see a judge within 24 hours of your arrest. The court will advise you of the charges against you and then make a decision whether to release you and, if so, how much bail you must first post. This proceeding is called your initial appearance. At your initial appearance, the court will also give you a date for your preliminary hearing or probable cause hearing. If a judge determines at this preliminary hearing that there is sufficient evidence that you "probably" committed the crime, the court will bind you over to face the charges. Your next court date will be your arraignment. At this hearing you will official plead "not guilty" and the court will assign you a trial judge and a trial date will be set.
Between the date of your arraignment and your trial date, your lawyer will likely negotiate a plea agreement with the prosecutor. I have given you a very basic outline. There are other quirks in the system like the grand jury but I will not get into this here. What is important is that at some point you will see a plea agreement.
The agreement will look like the one below. A client actually accepted this offer. He was charged with one count of second degree murder; one count of aggravated assault, a dangerous offense (a "dangerous offense" means a defendant used a deadly instrument in the commission of the crime-a gun, knife or car, for example. More prison time is given for a dangerous offense); and five counts of endangerment, for a total of seven serious felony charges. A client drove impaired and crashed into the back of another vehicle at a speed over 100 mph, killing a passenger in the other car.
After two years of negotiation and the litigation of legal issues, the prosecutor finally offered the less serious charge of manslaughter and agreed to dismiss the other six charges. You may have different charges in your case, but your agreement will look very much like the one below. I will explain some of the more important paragraphs to you in plain English.
Plea: The Defendant agrees to plead GUILTY to:
Count 1, as amended: MANSLAUGHTER, A CLASS 2 DANGEROUS FELONY in violation of A.R.S. §§ 13-1101, 13-1103, 13-701, 13-702, 13-702.01, and 13-801 committed on April 1, 2016.
This is a dangerous, non-repetitive offense under the criminal code.
THIS OFFER EXPIRES AND IS REVOKED IF NOT ENTERED IN COURT BY March 1, 2018.
Terms: On the following understandings, terms and conditions:
1. COUNT 1 carries a presumptive sentence of 10.5 years; a minimum sentence of 7 years (N/A years if trial court makes exceptional circumstances finding); and a maximum sentence of 21 years (N/A years if trial court makes exceptional circumstances finding). Probation IS NOT available. Restitution of economic loss to the victim and waiver of extradition for probation revocation procedures are required. The maximum fine that can be imposed is $150,000.00 plus an 83% plus $20.00 pursuant to A.R.S. 12-114.01 surcharge. If the Defendant is sentenced to prison, the Defendant shall also be sentenced to serve a term of community supervision equal to one-seventh of the prison term to be served consecutively to the actual period of imprisonment. If the Defendant fails to abide by the conditions of community supervision, the Defendant can be required to serve the remaining term of community supervision in prison. Special conditions regarding the sentence imposed by statute (if any) are Pursuant to A.R.S. §28-3304 defendant's driving privilege shall be revoked; pursuant to A.R.S. §13-610 defendant shall submit to DNA testing.
[The first paragraph will let you know the sentencing range for the crime. You will get the low, middle and high number. The law allows a fine up to $150,000 and the court must impose a surcharge in the amount of 83% if a fine is levied. Most judges will not impose a fine if you are going to prison. This paragraph also lets you know that you must serve 85% of your sentence. If you behave in prison, you will be released early, but you first must serve 85%. Prosecutors also love deadlines and one is given here.]
2. The parties stipulate to the following additional terms, subject to court approval at the time of sentencing as set forth in paragraph 7:
Count 1: Defendant shall serve a term in the Arizona Department of Corrections for 10.5 years and pay restitution to any and all victims and their insurance companies resulting out of DPS DR#0000000000 in an amount not to exceed $1,000,000 per victim.
3. The following charges are dismissed, or if not yet filed, shall not be brought against the Defendant by the Maricopa County Attorney’s Office: Counts 2, 3, 4, 5, 6 and 7.
[Paragraph 2 is specific on the amount of prison time that must be served-10.5 years. The client must also pay restitution and a very high ceiling is always demanded by the prosecutor. The State still must provide proof of actual loss. The agreement states that all other charges are to be dismissed.]
4. This agreement serves to amend the complaint, indictment, or information, to charge the offense to which the Defendant pleads, without the filing of any additional pleading. However, if the plea is rejected by the court or withdrawn by either party, or if the conviction is subsequently reversed, the original charges and any charges that are dismissed by reason of this plea agreement are automatically reinstated.
5. If the Defendant is charged with a felony, he hereby waives and gives up his rights to a preliminary hearing or other probable cause determination on the charges to which he pleads. The Defendant agrees that this agreement shall not be binding on the State should the Defendant be charged with or commit a crime between the time of this agreement and the time for sentencing in this cause; nor shall this agreement be binding on the State until the State confirms all representations made by the Defendant and his attorney, to-wit: Defendant avows to having NO prior felony conviction in any jurisdiction, not on probation, parole, or community supervision at the time of this offense. If the Defendant fails to appear for sentencing, the court may disregard the stipulated sentence and impose any lawful sentence which is the same as or exceeds the stipulated sentence in the plea agreement. In the event the court rejects the plea, or either the State or the Defendant withdraws the plea, the Defendant hereby waives and gives up his right to a preliminary hearing or other probable cause determination on the original charges.
[Many clients are out of custody while their case is in the system, paragraph 5 makes it clear that if the client commits another crime while on release the court can impose a harsher sentence. The client must also be honest and disclose any prior convictions. If the court discovers that the client has not been honest and has other convictions, the court will allow the State to back out of the deal.]
6. Unless this plea is rejected by the court or withdrawn by either party, the Defendant hereby waives and gives up any and all motions, defenses, objections, or requests which he has made or raised, or could assert hereafter, to the court's entry of judgment against him and imposition of a sentence upon him consistent with this agreement. By entering this agreement, the Defendant further waives and gives up the right to appeal.
7. The parties hereto fully and completely understand and agree that by entering into a plea agreement, the defendant consents to judicial fact finding by preponderance of the evidence as to any aspect or enhancement of sentence and that any sentence either stipulated to or recommended herein in paragraph two is not binding on the court. In making the sentencing determination, the court is not bound by the rules of evidence. If after accepting this plea the court concludes that any of the plea agreement's provisions regarding the sentence or the term and conditions of probation are inappropriate, it can reject the plea. If the court decides to reject the plea agreement provisions regarding sentencing, it must give both the state and the Defendant an opportunity to withdraw from the plea agreement. In case this plea agreement is withdrawn, all original charges will automatically be reinstated. The Defendant in such case waives and gives up his right to a probable cause determination on the original charges.
[Paragraphs 6 and 7 advises the client that the court makes the final decision if the agreement is lawful. If the court believes the agreement is either too lenient or too harsh, the court can reject the deal and both parties start back at the beginning. The client is also advised that he or she is giving up all legal challenges that may have been present in the case. The client may have had a good suppression issue or a Miranda violation issue, but the client agrees not to pursue these claims in exchange for the benefit of the plea-meaning the benefit of less prison time.]
8. If the court decides to reject the plea agreement provisions regarding sentencing and neither the State nor the Defendant elects to withdraw the plea agreement, then any sentence either stipulated to or recommended herein in paragraph 2 is not binding upon the court, and the court is bound only by the sentencing limits set forth in paragraph 1 and the applicable statutes.
9. This plea agreement in no way affects any forfeiture proceedings pursuant to A.R.S. § 13-4301 et seq., § 13-2314, or § 32-1993, if applicable, nor does the plea agreement in any way compromise or abrogate any civil actions, including actions pursuant to A.R.S. § 13-2301 et seq. or § 13-4301 et seq., or the provisions of A.R.S. § 13-2314 or A.R.S. § 13-4310.
[A forfeiture proceeding generally involves drug cases. The government can seize any item associated with a drug offense or transaction. If you transport drugs in your car, boat or trailer, the State will seize your property. If you have a large quantity of drugs in your home, the State will seize your home. This occurs, and clients have lost cars, homes and valuables in forfeiture proceedings. The client has the burden of proving that the items were purchased legitimately and not with drug money.]
10. I understand that if I am not a citizen of the United States that my decision to go to trial or enter into a plea agreement may have immigration consequences. Specifically, I understand that pleading guilty or no contest to a crime may affect my immigration status. Admitting guilt may result in deportation even if the charge is later dismissed. My plea or admission of guilt could result in my deportation or removal, could prevent me from ever being able to get legal status in the United States, or could prevent me from becoming a United States citizen. I understand that I am not required to disclose my legal status in the United States to the court.
[Paragraph 10 is clear that if you are not a citizen of the U.S. you will suffer immigration consequences. You will be detained by Immigration and Customs Enforcement (ICE) and you will be deported. Many clients are arrested and convicted of felony and misdemeanor offenses and end up in deportation proceedings.]
11. I have read and understand the provisions of pages one, two, and three of this agreement. I have discussed the case and my constitutional rights with my lawyer. My lawyer has explained the nature of the charge(s) and the elements of the crime(s) to which I am pleading. I understand that by pleading GUILTY I will be waiving and giving up my right to a determination of probable cause, to a trial by jury to determine guilt and to determine any fact used to impose a sentence within the range stated above in paragraph one, to confront, cross-examine, compel the attendance of witnesses, to present evidence in my behalf, my right to remain silent, my privilege against self-incrimination, presumption of innocence and right to appeal. I agree to enter my plea as indicated above on the terms and conditions set forth herein. I fully understand that if, as part of this plea agreement, I am granted probation by the court, the terms and conditions thereof are subject to modification at any time during the period of probation. I understand that if I violate any of the written conditions of my probation, my probation may be terminated and I can be sentenced to any term or terms stated above in paragraph one, without limitation.
I have personally and voluntarily placed my initials in each of the above boxes and signed the signature line below to indicate I read and approved all of the previous paragraphs in this agreement, both individually and as a total binding agreement.
[The client waives his or her constitutional rights in exchange for the benefit of the plea agreement. These rights are spelled out. The client also loses the right to a direct appeal. If you elect to go to trial and lose, you have an automatic right to appeal your conviction to a higher court. When you accept a plea agreement, you waive this right. You will be told by the court that you only have the right to file a Rule 32 Petition for Post-Conviction Relief and that you only have 90 days from the date you are sentenced to file this Petition. There are limited issues that can be litigated in a Post-Conviction Petition. The Petition is also decided by the same court that sentenced you. Unlike an appeal, the appeal is decided by another judge or judges.]
I have discussed this case with my client in detail and advised him of his constitutional rights and all possible defenses. I have also explained the nature of the charge(s) and the elements of the crime(s). I believe that the plea and disposition set forth herein are appropriate under the facts of this case. I concur in the entry of the plea as indicated above and on the terms and conditions set forth herein.
Date: Defense Counsel
I have reviewed this matter and concur that the plea and disposition set forth herein are appropriate and are in the interests of justice.
When you plead guilty, the court will go over this agreement with you and the court is supposed to make sure you understand the agreement. Frankly, many defendants do not really understand what they signed. The fact is that there are lawyers who do not take the time and effort to adequately explain this contract, especially public defenders, to their clients. Defendants are scared standing before a judge, in open court, and many times do not speak up. It is the job of your lawyer to make sure you understand this agreement and the rights you are giving up. If you do not, do not sign until your lawyer has explained the agreement to your satisfaction. Trying to get out of this contract is very difficult if you realize later that you made a mistake.
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Robert J. Campos, Criminal Law Specialist