H. Disposition Without Trial
In the context of defense counsel performance, disposition without trial refers simply to pleas of guilty. Standards here address the following topics:
- Investigating plea alternatives
- Informing client of plea negotiations and offers
- Preparing client for entry of plea
In addition to the standards included herein, the Missouri Guidelines for Representation provide for (1) a continuing duty to prepare for trial while plea negotiations are ongoing and (2) preparation of a memo for the file detailing the contents of discussions with the client about a possible guilty plea (Guidelines 5.3 and 5.6). See generally, ABA Standards Relating to Pleas of Guilty (3rd Edition, 1996).
1. Investigating Plea Alternatives
Commentary. The core requirement of these standards is that counsel should not encourage the client to plead guilty until the attorney has fully examined the case facts. Both standards below also require counsel to consider plea negotiations. See also, Missouri State Public Defender, Guidelines for Representation (1992), Guideline 5.1(a)(b).
ABA Standards for Criminal Justice: Prosecution Function and Defense Function
Standard 4-6.1 Duty to Explore Disposition Without Trial
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(b) Defense counsel may engage in plea discussions with the prosecutor. Under no circumstances should defense counsel recommend to a defendant acceptance of a plea unless appropriate investigation and study of the case has been completed, including an analysis of controlling law and the evidence likely to be introduced at trial.
Massachusetts Committee for Public Counsel Services, Assigned Counsel Manual: Policies and Procedures
5.1 Plea Negotiations
(a) After interviewing the client and developing a thorough knowledge of the law and facts of the case, the attorney should explore all alternatives to trial, including the possible resolution of the case through a negotiated plea or admission to sufficient facts.
2. Informing Client of Plea Negotiations and Offers
Commentary. The client alone is responsible for the decision to plead guilty or to seek a trial before a jury or judge. Thus, it is the attorney's duty to provide all the relevant information needed by the client to make that decision. See also, Missouri State Public Defender, Guidelines for Representation (1992), Guidelines 5.1, 5.2.
ABA Standards for Criminal Justice: Prosecution Function and Defense Function
Standard 4-6.2 Plea Discussions
(a) Defense counsel should keep the accused advised of developments arising out of plea discussions conducted with the prosecutor.
(b) Defense counsel should promptly communicate and explain to the accused all significant plea proposals made by the prosecutor.
NLADA Performance Guidelines for Criminal Defense Representation
Guideline 6.1 The Plea Negotiation Process and the Duties of Counsel
(a) Counsel should explore with the client the possibility and desirability of reaching a negotiated disposition of the charges rather than proceeding to a trial and in doing so should fully explain the rights that would be waived by a decision to enter a plea and not to proceed to trial.
(b) Counsel should ordinarily obtain the consent of the client before entering into any plea negotiation.
(c) Counsel should keep the client fully informed of any continued plea discussion and negotiations and convey to the accused any offers made by the prosecution for a negotiated settlement.
(d) Counsel should not accept any plea agreement without the client's express authorization.
Guideline 6.2 The Contents of the Negotiations
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(b) In developing a negotiation strategy, counsel should be completely familiar with:
1. concessions that the client might offer the prosecution as part of a negotiated settlement, including, but not limited to:
A. not to proceed to trial on the merits of the charges;
B. to decline from asserting or litigating any particular pretrial motions;
C. an agreement to fulfill specified restitution conditions and/or participation in community work or service programs, or in rehabilitation or other programs.
D. providing the prosecution with assistance in prosecuting or investigating the present case or other alleged criminal activity.
2. benefits the client might obtain from a negotiated settlement, including, but not limited to an agreement:
A. that the prosecution will not oppose the client's release on bail pending sentencing or appeal;
B. that the defendant may enter a conditional plea to preserve the right to litigate and contest certain issues affecting the validity of a conviction;
C. to dismiss or reduce one or more of the charged offenses either immediately, or upon completion of a deferred prosecution agreement;
D. that the defendant will not be subject to further investigation or prosecution for uncharged alleged criminal conduct;
E. that the defendant will receive, with the agreement of the court, a specified sentence or sanction or a sentence or sanction within a specified range;
F. that the prosecution will take, or refrain from taking, at the time of sentencing and/or in communications with the preparer of the official presentence report, a specified position with respect to the sanction to be imposed on the client by the court;
G. that the prosecution will not present, at the time of sentencing and/or in communications with the preparer of the official presentence report, certain information;
H. that the defendant will receive, or the prosecution will recommend, specific benefits concerning the accused's place and/or manner of confinement and/or release on parole and the information concerning the accused's offense and alleged behavior that may be considered in determining the accused's date of release from incarceration.
Guideline 6.3 The Decision to Enter a Plea of Guilty
(a) Counsel should inform the client of any tentative negotiated agreement reached with the prosecution, and explain to the client the full content of the agreement, and the advantages and disadvantages and the potential consequences of the agreement.
Connecticut Public Defender Services Commission, Guidelines on Indigent Defense
Guideline 5.3. Plea Negotiations
(a) Counsel should discuss with the client any ongoing plea negotiations and convey all offers to the client.
(b) Counsel should discuss with the client the advantages and disadvantages of accepting a plea agreement.
(c) Counsel should discuss with the client any rights which are waived by acceptance of a plea agreement.
(d) Counsel should not accept or reject any plea agreement without the authorization of the client.
(e) Counsel should discuss with the client the nature of the charge to which he/she would be entering a plea, the possible maximum and/or mandatory sentences which the client is exposed to as a result of the plea and any other questions that the court may raise during the canvass.
Massachusetts Committee for Public Counsel Services, Assigned Counsel Manual: Policies and Procedures
5.1. Plea Negotiations
(a) After interviewing the client and developing a thorough knowledge of the law and facts of the case, the attorney should explore all alternatives to trial, including the possible resolutions of the case through a negotiated plea or admission to sufficient facts.
(b) Counsel should inform the client of any plea negotiations before they occur unless it is impractical to do so, in which case counsel should inform the client of the negotiations as soon after they occur as is possible.
(c) The attorney shall make it clear to the client that the ultimate decision to offer a change of plea or admit to sufficient facts has to be made by the client. Counsel should investigate and candidly explain to the client the prospective strengths and weaknesses of the case for the prosecution and defense, including the availability of prosecution witnesses, concessions and benefits which are subject to negotiation, and the possible consequences of a conviction after trial. Counsel's recommendation on the advisability of a plea or admission should be based on a review of the complete circumstances of the case and possible consequences of a conviction after trial. Counsel's recommendation on the advisability of a plea or admission should be based on a review of the complete circumstances of the case and the client's situation. Such advice should not be based solely on the client's acknowledgement of guilt or solely on a favorable disposition offer.
(d) Where negotiations are begun, counsel should attempt to obtain the most favorable disposition possible for the client. The attorney shall keep the client informed of the status of the plea negotiations.
5.5 Necessity of Admission of Guilt
Where the proceeding is a final adjudication, counsel should not advise the client to plead guilty or admit to sufficient facts unless the client either admits guilt to counsel, or admits guilt to the court in a colloquy or tenders an Alford3 plea. During and after the change of plea colloquy, counsel must vigorously enforce all aspects of a plea agreement. Where a change of plea is contingent upon a specific agreement, counsel must be sure that the court is so informed before the tender of the plea, and that the agreement is duly recorded.
5.6 Disposition Argument
Notwithstanding a disposition by plea or an admission to sufficient facts, counsel must be prepared for sentencing arguments, including, where appropriate, release pending sentencing or appeal.
New Mexico Public Defender Department, Performance Guidelines for Criminal Defense Representation
Guideline 6.1 The Plea Negotiation Process and the Duties of Counsel
(a) Counsel should explore with the client the possibility and desirability of reaching a negotiated disposition of the charges rather than proceeding to a trial, and in doing so, counsel should fully explain the rights that are waived by a decision to enter a plea and not to proceed to trial.
(b) Where appropriate under state or local rules or necessary for client control, counsel should consider obtaining the consent of the client before entering into any plea negotiations.
(c) Counsel should keep the client fully informed of any continued plea discussion and negotiations and convey to the client any offers made by the prosecution for a negotiated settlement.
(d) Counsel should not accept any plea agreement without the client's express authorization.
(e) Even though plea negotiations are ongoing, counsel should move forward with case preparation and take the necessary steps to preserve a defense. Counsel should consult with an immediate supervisor or experienced colleague to determine the steps necessary to preserve a defense.
Guideline 6.2 The Contents of the Negotiations
(a) In conducting plea negotiations, counsel should attempt to become familiar with the practices and policies of the particular jurisdiction, judge and prosecuting attorney(s) which may impact the content and likely results of negotiated plea bargains.
(b) In order to develop an overall negotiation plan, counsel should be fully aware of, and make sure the client is fully aware of:
(1) the maximum term of imprisonment and fine or restitution that may be ordered, and any mandatory punishment or sentencing guideline system;
(2) the possibility of forfeiture of assets;
(3) the other potential effects of conviction upon immigration status, motor vehicle licensing, right to carry arms, parental rights, and other civil rights;
(4) any registration requirements including sex offender registration and job specific notification requirements;
(5) any possible and likely sentence enhancements in the present and in future cases or parole consequences;
(6) the possible and likely place and manner of confinement;
(7) the effects of good-time or earned-time credits on the sentence of the client and the general range of sentences for similar offenses committed by defendants with similar backgrounds;
(8) the effect on appellate rights.
(c) In developing a negotiation strategy, counsel should be completely familiar with:
(1) concessions that the client might offer the prosecution as part of a negotiated settlement, including but not limited to:
(A) declining to assert the right to trial;
(B) declining to assert or litigate any particular pretrial motions;
(C) agreeing to fulfill specified restitution conditions and/or participation in community work or service programs, or in rehabilitation or other programs;
(D) providing the prosecution with assistance in prosecuting or investigating the present case or other alleged criminal activity;
(E) admitting identity and waiving challenges to proof or validity of prior conviction record.
(2) benefits the client might obtain from a negotiated settlement, including but not limited to, an agreement:
(A) that the prosecution will not oppose the client's release on bail pending sentencing or appeal;
(B) that the defendant may enter a conditional plea to reserve the right to litigate and contest certain issues affecting the validity of a conviction;
(C) to dismiss or reduce one or more of the charged offenses either immediately, or upon completion of a deferred prosecution agreement;
(D) that the defendant will not be subject to further investigation or prosecution for uncharged alleged criminal conduct;
(E) that the defendant will receive, with the agreement of the court, a specified sentence or sanction or a sentence or sanction within a specified range;
(F) that at the time of sentencing and/or in communications with the preparer of the official presentence report, the prosecution will take, or refrain from taking, a specified position with respect to the sanction to be imposed by the court.
(G) that at the time of sentencing and/or in communications with the preparer of the official presentence report, the prosecution will not present certain information;
(H) that the defendant will receive, or the prosecution will recommend, specific benefits concerning the accused's place and/or manner of confinement.
(d) In conducting plea negotiations, counsel should be familiar with:
(1) the various types of pleas that may be agreed to, including a plea of guilty, guilty but mentally ill, a plea of nolo contendere, a conditional plea of guilty, and the right to a plea in which the client is not required to personally acknowledge his or her guilt (Alford plea);
(2) the advantages and disadvantages of each available plea according to the circumstances of the case;
(3) whether the plea agreement is binding on the court and jail/prison and parole authorities;
(4) any recent changes in the applicable statutes or court rules and the effective dates of these changes.
Oregon State Bar, Indigent Defense Task Force Report: Principles and Standards for Counsel in Criminal, Delinquency, Dependency, and Civil Commitment Cases
Standard 2.8--Pretrial Negotiations and Admission Agreements
Counsel should:
1. with the consent of the client explore diversion and other informal and formal admission or disposition agreements with regard to the allegations;
2. fully explain to the client the rights that would be waived by a decision to enter into any admission or disposition agreement;
3. keep the client fully informed of the progress of the negotiations;
4. convey to the client any offers made by the prosecution and the advantages and disadvantages of accepting the offers;
5. continue to preserve the client's rights and prepare the defense notwithstanding ongoing negotiations; and
6. not enter into any admission or disposition agreement on behalf of the client without the client's authorization.
Implementation
1. Counsel should be fully aware, and ensure the client is fully aware, of:
a. rights the client will waive by entering into a pretrial admission or disposition agreement;
b. conditions and limits of the agreement;
c. nature of the admission hearing and the role the client will play in the hearing, including answering questions of the judge and in many instances, providing a statement concerning the offense;
d. deferred sentences, conditional discharges and diversion agreements;
e. the likely disposition, including what is required by the sentencing guidelines and the effect of the admission agreement on the client's criminal history;
f. possible and likely sentence enhancements, and probation or post-incarceration supervision consequences;
g. available drug rehabilitation programs, psychiatric treatment, and health care;
h. incarceration including any mandatory minimum requirements and maximum terms;
i. the possible and likely place and manner of confinement;
j. credit for pretrial detention;
k. the effect of good-time credits on the client's release date and how those credits are earned and calculated;
l. self-surrender to place of custody;
m. eligibility for correctional programs, work release and conditional leaves;
n. probation or suspension of sentence and permissible conditions of probation;
o. restitution, fines, assessments and court costs;
p. if applicable, parole or post-prison supervision eligibility, applicable ranges, and likely post-prison supervision conditions;
q. asset forfeiture;
r. collateral consequences of conviction, e.g., deportation, civil disabilities, and enhanced sentences for future convictions;
s. restrictions on, loss of, or other potential consequences affecting the client's driver's or professional license; and
t. possibility of later expungement and sealing of records.
2. In conducting negotiations, counsel should be familiar with the various types of admissions or pretrial dispositions that may be agreed to, including a plea of guilty, a plea of nolo contendere, a conditional plea of guilty, a plea in which the defendant is not required to personally acknowledge his or her guilt (Alford plea), and an admission to juvenile court jurisdiction.
3. The decision to enter an admission rests solely with the client and the client's decision must be knowing, voluntary and intelligent.
4. When the client enters an admission, counsel should make sure the full content and conditions of the admission agreement are placed on the record before the court.
5. If the client is in custody or may be taken into custody after entry of the admission, counsel should seek release pending formal disposition.
3. Preparing Client for Entry of Plea
Commentary. Before the court can accept a plea of guilty from a defendant, several procedural requirements must be met. These requirements are intended to ensure that the plea is voluntary and truthful, and that there are facts to support criminal charges. See generally, ABA Standards Relating to Guilty Pleas (3rd Edition, 1996). These requirements may be somewhat exacting, and deviation from them may require postponement of the plea. Thus, the attorney must prepare the client for the guilty plea. See also, Missouri State Public Defender, Guidelines for Representation (1992), Guidelines 5.4, 5.5.
NLADA Performance Guidelines for Criminal Defense Representation
Guideline 6.4 Entry of the Plea Before the Court
a. Prior to the entry of the plea, counsel should:
1. make certain that the client understands the rights he or she will waive by entering the plea and that the client's decision to waive those rights is knowing, voluntary and intelligent;
2. make certain that the client fully and completely understands the conditions and limits of the plea agreement and the maximum punishment, sanctions and other consequences the accused will be exposed to by entering a plea;
3. explain to the client the nature of the plea hearing and prepare the client for the role he or she will play in the hearing, including answering questions of the judge and providing a statement concerning the offense.
Connecticut Public Defender Services Commission, Guidelines on Indigent Defense
Guideline 5.3. Plea Negotiations
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(d) Counsel should not accept or reject any plea agreement without the authorization of the client.
Massachusetts Committee for Public Counsel Services, Assigned Counsel Manual: Policies and Procedures
5.2 Preparation
(a) When a client decides to offer a change of plea, or admit to sufficient facts, counsel must be certain that the client understands all aspects of the plea agreement, if any, including sentencing recommendations, and is carefully prepared to participate in the procedures required under Mass. R. Crim. P. 12 and used in the particular court. Counsel shall also ascertain and advise the client of the court's practices concerning sentence recommendations and withdrawing pleas or admissions.
(b) Before advising the prosecution and court that the client is willing to offer a change of plea or an admission to sufficient facts, counsel must also be satisfied that the plea is voluntary, that the client understands the nature of the charges, that there is a factual basis for the plea or the admission, that the witnesses are or will be available, and that the client understands the rights being waived including: a trial with or without a jury where the Commonwealth has the burden of proving guilt beyond a reasonable doubt, the right to confront witnesses, and the privilege against self-incrimination.
5.3 Consequences of Conviction
Counsel must also advise the client of the consequences of a conviction, including:
(a) the maximum possible sentence of all offenses;
(b) mandatory minimum sentences where applicable;
(c) different or additional punishments where applicable, such as for second offenses, probation violation or parole revocation consequences;
(d) potential liability for enhanced punishment after subsequent arrest;
(e) possible federal charges or penalty enhancements;
(f) conviction consequences for non-citizens (G.L., c.278, §29D);
(g) Sex Offender Registration Act (G.L., c.6, §§178C et seq.) and DNA Seizure and Dissemination Act (G.L., c.22E) requirements;
(h) parole eligibility (including the discretionary nature of parole decisions and that being eligible for parole does not confer a right to parole);
(i) potential civil liabilities;
(j) possible loss or suspension of driver's license.
New Mexico Public Defender Department, Performance Guidelines for Criminal Defense Representation
Guideline 6.3 The Decision to Enter a Plea of Guilty
(a) Counsel should inform the client of any tentative negotiated agreement reached with the prosecution, explain to the client the full content of the agreement, and explain the advantages, disadvantages, and potential consequences of the agreement.
(b) The decision to enter a plea of guilty rests solely with the client, and counsel should not attempt to unduly influence that decision. Where counsel reasonably believes that acceptance of a plea offer is in the best interests of the client, counsel should advise the client of the benefits of this course of action.
(c) Where the client verbally rejects a fully explained and detailed plea offer, and if appropriate, counsel may ask the client to sign a written rejection of plea offer statement.
Guideline 6.4 Entry of the Plea before the Court
(a) Prior to the entry of the plea, counsel should:
(1) make certain that the client understands the rights he or she will waive by entering the plea and that the client's decision to waive those rights is knowing, voluntary and intelligent;
(2) make certain that the client fully and completely understands the conditions and limits of the plea agreement and the maximum punishment, sanctions, and other consequences the accused will be exposed to by entering a plea;
(3) explain to the client the nature of the plea hearing and prepare the client for the role he or she will play in the hearing, including answering questions of the judge and providing a statement concerning the offense.
(b) When entering the plea, counsel should make sure that the full content and conditions of the plea agreement are placed on the record by the court.
(c) After entry of the plea, counsel should be prepared to address the issue of release pending sentencing. Where the client has been released pretrial, counsel should be prepared to argue and persuade the court that the client's continued release is warranted and appropriate. Where the client is in custody prior to the entry of the plea, counsel should, where practicable, advocate for the client's release on bail pending sentencing.
(d) Subsequent to the acceptance of the plea, counsel should make every effort to review and explain the plea proceedings with the client and to respond to any client questions and concerns.
Oregon State Bar, Indigent Defense Task Force Report: Principles and Standards for Counsel in Criminal, Delinquency, Dependency, and Civil Commitment Cases
Standard 2.8--Pretrial Negotiations and Admission Agreements
Counsel should:
1. with the consent of the client explore diversion and other informal and formal admission or disposition agreements with regard to the allegations;
2. fully explain to the client the rights that would be waived by a decision to enter into any admission or disposition agreement;
3. keep the client fully informed of the progress of the negotiations;
4. convey to the client any offers made by the prosecution and the advantages and disadvantages of accepting the offers;
5. continue to preserve the client's rights and prepare the defense notwithstanding ongoing negotiations; and
6. not enter into any admission or disposition agreement on behalf of the client without the client's authorization.
Implementation
1. Counsel should be fully aware, and ensure the client is fully aware, of:
a. rights the client will waive by entering into a pretrial admission or disposition agreement;
b. conditions and limits of the agreement;
c. nature of the admission hearing and the role the client will play in the hearing, including answering questions of the judge and in many instances, providing a statement concerning the offense;
d. deferred sentences, conditional discharges and diversion agreements;
e. the likely disposition, including what is required by the sentencing guidelines and the effect of the admission agreement on the client's criminal history;
f. possible and likely sentence enhancements, and probation or post-incarceration supervision consequences;
g. available drug rehabilitation programs, psychiatric treatment, and health care;
h. incarceration including any mandatory minimum requirements and maximum terms;
i. the possible and likely place and manner of confinement;
j. credit for pretrial detention;
k. the effect of good-time credits on the client's release date and how those credits are earned and calculated;
l. self-surrender to place of custody;
m. eligibility for correctional programs, work release and conditional leaves;
n. probation or suspension of sentence and permissible conditions of probation;
o. restitution, fines, assessments and court costs;
p. if applicable, parole or post-prison supervision eligibility, applicable ranges, and likely post-prison supervision conditions;
q. asset forfeiture;
r. collateral consequences of conviction, e.g. deportation, civil disabilities, and enhanced sentences for future convictions;
s. restrictions on, loss of, or other potential consequences affecting the client's driver's or professional license; and
t. possibility of later expungement and sealing of records.