How much authority does a judge in the US have to reject a sentencing agreement?

[Max_Torque]

Part of the standard admonishments I read to every criminal defendant not represented by counsel goes something like this: “Our agreement on punishment is not binding on the court. That means that even though we have this plea bargain agreement, if the judge wants to, he can reject that and put in something he feels is more appropriate. If he decides to do that and does not follow the plea agreement, you can withdraw your plea of guilty, so you’re not stuck with whatever he decides to do with you.” Withdrawing a guilty plea if the judge rejects the plea bargain is expressly permitted here.

My current judge has been rejecting plea agreements right and left. It irritates me, because he’s essentially trying to be the prosecutor as well as the judge, and prosecution is my job. A judge is supposed to be an impartial arbiter. At some point, one of the local defense attorneys may call him on it: “Judge, by stating that you will not accept a fine of less than $1000 for this offense, you have admitted that you cannot consider the full sentencing range, and I must ask that you recuse yourself.” Kinda surprised it hasn’t happened yet, actually.

He has also refused to sign some dismissals, until I got him to see reason. I can foresee that leading to a serious conflict; judges don’t have to sign dismissals, but prosecutors don’t have to prosecute, either. The most extreme outcome would be actually taking the case to trial, doing no voir dire (“The first twelve are acceptable to the State, your honor.”), making no opening statement, then standing up, saying, “The State rests,” and sitting down. Hope it never comes to that.

[Elendil_s_Heir]

@muldoonthief

EH, would you surprised if a plea bargain came in front of you where the defendant agreed to pay restitution to the victim(s), over time, in exchange for no jail time, and the victim(s) themselves had not been consulted at all? That’s what looks like happened here - witness the testimony from the current CFO of the organization.

Yes, I would be very surprised by that, and wouldn’t accept such a plea. (It’s never happened to me). Why hasn’t the prosecutor consulted with the victim(s)? That’s just sloppy practice… or maybe the prosecutor and/or defendant are trying to hide something, or pull a fast one? What if the victim says more is owed than the prosecutor and/or defendant concedes? I’d probably grant a continuance and order the prosecutor to subpoena the victim(s) so that he, she or they could be heard. Or, I might accept the plea, but order the preparation of a presentence investigation (PSI) report to explore that issue.

[Elendil_s_Heir]

@Max_Torque

…The most extreme outcome would be actually taking the case to trial, doing no voir dire (“The first twelve are acceptable to the State, your honor.”), making no opening statement, then standing up, saying, “The State rests,” and sitting down. Hope it never comes to that.

Heehee. That would be pretty cool. No choice but to acquit the guy then.

[CPomeroy]

daves, I do not have any useful information to provide, but I was curious if your friend has the option to withdraw his plea because the judge rejected the agreement.

[doreen]

@daves

No contest pleas are made when plea agreements have been offered by the prosecution, accepted by the defense, and taken to the judge for what’s basically approval. The subject of this thread is asking the exact same question - " How much authority does a judge in the US have to reject a sentencing agreement?"

I’ve been looking all over the net and can’t find any cases where a judge so blatantly ignored a plea agreement, or sentencing agreement. This judge went from a probationary agreement (plus $135k restitution) to a maximum sentence for the crime, on a case that had no trial, no jury, and no discussion in front of the judge for which he would have reason to make such a drastic change.

You are probably not going to find anything on the net where a judge " so blatantly ignored a plea agreement" in part because the plea "agreement"  was kind of outrageous in itself and in part because plea agreements for this sort of crime generally  aren't news. I work in the criminal justice system in NY, and people frequently are sent to prison for stealing far smaller amounts from their employer and also required to pay restitution , even if they have  no prior record. 

Regarding how much authority a judge has to reject a sentencing agreement- I’m not a lawyer, but the fact is the defense attorney and the prosecutor don’t have the authority to impose a sentence. Only a judge does , and if the judge is bound by agreements made by other people, then they are imposing the sentence, not the judge. In theory, the judge is completely free to reject such agreements. In practice, I’m sure that prosecutors and defense attorneys have some idea of what sentence a given judge is likely to accept or reject and generally try to agree on something the judge will accept. I suspect that’s why the “agreement” mentioned in the first article doesn’t seem like much of an agreement- “The prosecution said it would not object to probation if the restitution is paid.” That’s very different from the prosecution agreeing to recommend probation.

[AK84]

@Elendil_s_Heir

In most states now, victim-impact statements are admissible at time of sentencing.

Slight hijack, but these things are really really really inappropriate in my opinion.

[mhendo]

@daves

Your response assumes his guilt. That’s my problem with this. His guilt was never proven, and he told me first hand that these things were given to him over the years in return for his department’s continued successes. On paper, the stuff was owned by the Coop, and he knew this all along, which is why he returned it after being fired.

You say that the stuff was owned by the co-op on paper.

Even if this is true, it seems from this news story that part of Bellis’ crime involved setting up an account in the co-op’s name with one of the suppliers, and then using that account to purchase items that he then took for his own use.

UFC’s chief executive and financial officers said in reviewing a number of UFC financial records, they discovered the existence of an accrual account set aside for UFC with Rosens Incorporated, a company from which UFC purchased chemical fertilizer products. They told police that the money in the account was the property of UFC and was to be used for purchasing items for the company or in sales and marketing efforts on behalf of UFC.

They provided police officers with a list of items purchased using this account, starting in January, 2007.

They said further that upon reviewing the items that were purchased with this account, they said the company did not possess many of the items listed.

<snip>

One of the UFC reps said a number of items possessed by Bellis had been left at a UFC facility in Hampton. Officers went to the site where they observed, “among a number of items, a white, single axle, Sharp trailer,” with the golf cart inside.

So, using the authority of his job, the guy set up an account and purchased stuff using the co-op’s name, without the co-op’s knowledge and without its authorization. The fact that he decided to store some of his ill-gotten loot on company property doesn’t mitigate his offense. Also, if you read the article, you’ll see that the guy who sold hi the $9000 golf cart delivered the cart to him at a country club, and that the seller was under the impression from the beginning that it was a private purchase.

One could probably make an argument that 10-20 years is a reasonably harsh sentence for this particular offense, but i’m not really feeling too sorry for your pal right now.

[Elendil_s_Heir]

@AK84

Slight hijack, but [victim impact statements] are really really really inappropriate in my opinion.

I disagree. The judge, in imposing a sentence, is supposed to punish the defendant, deter future criminal behavior and make the victim whole, to the extent possible. Hearing from the victim is, I believe, a valid and necessary part of the sentencing process. The victim cannot dictate a sentence to the judge, and the judge should not be so swept away by the emotional power of the victim’s statement that she abandons her fairness and impartiality, of course.

[AK84]

So ends theory. Lets look at facts. Judges are protestations to the contrary, human and fallible.

It makes a hierarchy of victims. Kill a family man, and you have sobbing wives and children on the stand. Kill a tramp and well who cares about a tramp.

[Elendil_s_Heir]

Well, murder is wrong. I care about a tramp. But a family man leaves others behind - perhaps many others - who will never be the same because of the defendant’s crime, while in your example a tramp’s death presumably doesn’t have nearly the same effect on the community. The sentence should reflect that.

[AK84]

So a tramps life is less than that of a family man? Very slippery slope there.

[Elendil_s_Heir]

His life is not [worth] less than that of the family man, but his death has had a smaller impact on the community (again, working within the parameters of your example), and the sentence may very well reflect that. The assassination of the President, the murder of a very small child, and the murder of a witness to a previous crime are all treated more harshly than a garden-variety murder.

[Gary_Robson]

Getting back to the OP, this is basically the same question I asked of the candidates for Justice of the Peace in an interview a few weeks ago. They responded that it is part of their responsibility as JP to assure that sentencing is fair and legal, and if they see a plea bargain that they find inappropriate, it is their duty to reject it.

[AK84]

I would have though that such a discrepancy in the bargain and the sentence would illustrate either

1. A prosecution which had not done its job and homework properly.

or

2. A crackpot judge.

[daves]

@CPomeroy

daves, I do not have any useful information to provide, but I was curious if your friend has the option to withdraw his plea because the judge rejected the agreement.

I’m unsure if Nebraska law allows that. I’ve read on other sites that most states allow it, but haven’t found if Nebraska is one or not.

@mhendo

…without the co-op’s knowledge and without its authorization.

The former CEO approved the purchases with exception of the golf cart, which was purchased after he left. The paper of course omitted this fact.

@mhendo

The fact that he decided to store some of his ill-gotten loot on company property…

The items in question were returned on the day after he was fired. Regarding “ill-gotten” – see the previous comment.

@mhendo

…you’ll see that the guy who sold hi the $9000 golf cart delivered the cart to him at a country club

…where it was available to be freely used by any members of the Coop. It wasn’t delivered to his home. The country club seems to be a valid place for a golf cart to be delivered.

I guess it just depends on your perspective. If you assume his guilt, then heck ya, he should be in jail for a long time. I’ll be the first to agree with that. Unfortunately if all people do is formulate an opinion based on what’s written in the paper, that’s the exact perspective they’re going to have. I can’t help but think this whole thing is a means of propaganda for a judge who happens to be up for reelection.

The reason he accepted the plea agreement in the first place is because proving his innocence would be very difficult. The former CEO probably wouldn’t testify because doing so would implicate him in this situation, as well as others. Employees working for the Coop have been threatened with their jobs if they testify on Bellis’ behalf.

Keep in mind the prosecution is the one that offered the plea agreement – they would have had an equally difficult time proving anything. If the former CEO did testify, it comes down to which CEO the jury would believe. If they jury found Bellis innocent, that would be $134k less restitution than the agreement provided. The plea agreement at least is a win for the prosecution because of the huge restitution amount.

Thanks for all of your comments and suggestions.

[mhendo]

@daves

I guess it just depends on your perspective. If you assume his guilt, then heck ya, he should be in jail for a long time. I’ll be the first to agree with that. Unfortunately if all people do is formulate an opinion based on what’s written in the paper, that’s the exact perspective they’re going to have.

But we haven’t.

We’ve also formulated an opinion based on the fact that, instead of pleading Not Guilty, your friend chose to plead No Contest to the charges.

@daves

The reason he accepted the plea agreement in the first place is because proving his innocence would be very difficult. The former CEO probably wouldn’t testify because doing so would implicate him in this situation, as well as others. Employees working for the Coop have been threatened with their jobs if they testify on Bellis’ behalf.

He doesn’t have to prove his innocence. The prosecutor has to prove his guilt. Beyond a reasonable doubt.

I’m not saying it’s impossible that there’s more to this than the papers have reported. But, to be quite frank, i’m not especially convinced that you are an impartial source of information in this case. You rail against the alleged inaccuracy of the paper’s report, but the defendant is a friend of yours, giving you even more motive than the paper to view the whole case through the lens of personal interest.

[Elendil_s_Heir]

I am not your lawyer, this is not legal advice, etc. etc. etc. But here’s some Nebraska law I found:

A plea of nolo contendere [no contest] entered on advice of counsel when defendant failed to supply counsel with all information that might have been relevant to his defense may not be withdrawn when the record shows that it was entered knowingly, understandingly, and voluntarily. State v. Hurley, 207 Neb. 321, 299 N.W.2d 152 (1980).

The effect of a plea of nolo contendere is the same as a plea of guilty. State v. Neuman, 175 Neb. 832, 125 N.W.2d 5 (1963); State v. Hylton, 175 Neb. 828, 124 N.W.2d 230 (1963).

Plea entered by court may be withdrawn by defendant. Huette v. State, 87 Neb. 798, 128 N.W. 519 (1910).

Nebraska Statutes
§29-1819.01. Plea of nolo contendere; acceptance by court; when
The accused may, at any time before conviction, enter a plea of nolo contendere with the consent of the court. The court may refuse to accept the plea, and shall not accept the plea without first determining that the plea is made voluntarily with an understanding of the nature of the charge.

§29-1819.02. Plea of guilty or nolo contendere; advisement required; effect
…Nothing in this section [otherwise relating to warning illegal immigrants of the potential for deportation after pleading to a felony]… shall be deemed to inhibit a court, in the sound exercise of its discretion, from vacating a judgment and permitting a defendant to withdraw a plea.

[Albrecht_Durer]

I am a public defender in Indiana, and judges here reject plea agreements all the time, although it’s still the exception rather than the rule. As long as the agreement is legal, most judges are fine with it, although sometimes they do want a bit of clarification as to how it’s fair. That happened to me just this morning, when a client charged with felony Sexual Battery (accused of slapping a girl’s butt) agreed to plead guilty to misdemeanor battery for time served (which was six months, so not a short span of time). The judge wanted to know why it was fair and if the victim agreed to it. Then the judge did his patented eye-roll, where you can tell he’s not happy, but accepted it anyways.

In my two and a half years of public defending, I’ve had four plea agreements rejected, all four of which were OWIs (or DUIs, depending on where you live). In my county, the judges and prosecutors, over time, have developed a very standardized system of OWI pleas. Pro-defendant variations from the standard get rejected or, if there’s something egregious about the facts, those get rejected too (i.e., very high BAC; car crash; etc.).
I did see one judge angrily reject an agreement with a troublesome defendant several days before trial, only to accept it the next day. Maybe she just wanted to give the defendant a restless night before agreeing.

And in Indiana, there’s no such thing as nolo contendre or Alford pleas. You want to accept the benefit of a plea agreement, you have to confess under oath.

Further, in Indiana, you can appeal a judge’s sentence (as in an open plea, where the judge has total discretion, or after a trial) for inappropriateness. The Court of Appeals and Supreme Court look at the character of the offender and the circumstances of the crime. Based on that, they can reduce a sentence that is too harsh. However, if after looking at an offender’s character and the circumstances of the crime they decide the sentence is too lenient, they can also increase a sentence on appeal. They’ve only done this once, but it’s an option they have. So you tell your worst clients their horrible, terrible, rest-of-their-useful-life-in-prison sentence can actually get worse if they appeal it.

P.S.: I’m not your lawyer; this isn’t legal advice. Besides, I.m a PD. To quote a client of mine: “You’re a good public defender. Have you ever thought about going to law school and becoming a real lawyer?”

[daves]

EH - thanks for the references to Nebraska law. Unfortunately I’m not a lawyer, so the verbiage confuses me a bit. I’m not sure if it’s saying one can or cannot retract a no contest plea.

AD - thanks for your first-hand information.

Does any state offer plea agreements in conjunction with a “not guilty” plea? I’m not asking for that to happen here – just wondering if it exists.

[Richard_Parker]

In federal court, pleas can include a sentence or not, and they can include an agreement as to constituent parts of the sentence or not.

For example, the plea can set the sentence at 15 years. Or it can not set a sentence of years, but agree that the Judge must give the Defendant a downward departure for cooperation. Or it can make no recommendation to sentence at all, but have an agreement that the prosecutor won’t argue for certain enhancements. Etc.

The Judge is free to reject any part of it, but if he or she does, the plea is not binding.